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KERALA HIGH COURT
B. Sudheendra Kumar, J.
Pratheesh R. @ Pratheesh Viswanath
and Anr. – Appellants
versus
State of Kerala and Ors. – Respondents
Crl.A.No.9 of 2021
Decided on 24.2.2021
Counsel for the Parties:
For the Appellants:Sri. C.S. Manu, Advocate
For the Respondent No.3:Sri. U. Jayakrishnan, Advocate
For the Other Present: Sri. K.B. Udayakumar, Sr. Public Prosecutor
IMPORTANT POINT
There is no absolute bar against grant of anticipatory bail in cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 if no prima facie case is made out or where on judicial scrutiny complaint is found to be prima facie mala fide
Headnote:
Criminal Procedure Code, 1973 – Section 438 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 18 and 18A read with Sections 3(2)(v) and 3(2) (va) – Indian Penal Code, 1860 – Sections 324/34, 326B and 354 – Anticipatory Bail Application – Dismissal – There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny complaint is found to be prima facie mala fide – If complaint does not make out a prima facie case for applicability of provisions of Act, bar created by Sections 18 and 18 A shall not apply – Even though there is no absolute bar against grant of anticipatory bail in cases under the Act, said jurisdiction shall be exercised sparingly and only in very exceptional cases by High Court – Where High Court finds that no prima facie case is made out or where on judicial scrutiny, court finds that complaint is prima facie malafide, High Court will be justified in passing an order granting pre-arrest bail if Court is further satisfied that if pre-arrest bail is not granted, result would inevitably be miscarriage of justice or abuse of process of law – None of witnesses whose statement was recorded by police, also did not mention about involvement of appellants in incident – Both appellants are public figures – Even then, appellants could not be identified by victim for a long period – Allegations raised against appellants by victim before police are prima facie tainted with malafides – If pre-arrest bail is not granted to appellants, result would inevitably be abuse of process of law – Appellants are entitled to pre-arrest bail – Order impugned set aside and anticipatory bail granted. (Paras 9, 13, 17, 27, 28, 29 and 30)
Result: Appeal allowed.
JUDGMENT
B. Sudheendra Kumar, J.—The appellants are accused Nos.2 and 3 in Crime No.2036 of 2019 of Central Police Station, Ernakulam.
2. The prosecution case can be summarised as follows:
The victim is a guest lecturer in a Government law college. She is an activist. The appellants are supporters of RSS/BJP. The victim along with Mrs.Tripthi Desai and four others, who are activists in the organisation, namely, Bhumatha Brigade came to the office of the Commissioner of Police, Ernakulam City, for getting police protection for the purpose of proceeding to the Sabarimala Temple on 26.11.2019. The appellants and many Hindu organisations assembled there to protest against the visit of the activists to Sabarimala Temple. While so, at about 7.45 p.m., the first accused applied chilly spray on the face and body of the victim, in furtherance of the common intention of all the accused. The victim is a member of Scheduled Caste. The appellants do not belong to the said community.
3. The crime was originally registered for the offence punishable under Sections 324 read with Section 34 IPC. During the course of investigation, the offences under Sections 326B and 354 IPC and Sections 3(2)(v) and 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’) were added to the Section of offences.
4. The appellants filed application before the court below praying for the relief under Section 438 Cr.P.C. The court below dismissed the said application, against which this appeal has been filed.
5. Heard the learned counsel for the appellants, the learned counsel for the victim and the learned Public Prosecutor. Perused the case diary.
6. The audio-visual Compact Disc, which was handed over to the police by the victim herself, is appended to the case diary. The said Compact Disc was played in the chamber in the presence of the learned counsel for the appellants, the learned counsel for the victim and the learned Public Prosecutor.
7. The learned counsel for the appellants has argued that since the allegations against the appellants are prima facie mala fide, the bar under Section 18 of the Act is not applicable in this case and consequently, the appellants are entitled to be granted the relief under Section 438 Cr.P.C. On the other hand, the learned counsel for the victim has argued that since there is express bar under Sections 18 and 18 A of the Act to entertain an application under Section 438 Cr.P.C., this Court has no jurisdiction in this case to grant the relief under Section 438 Cr.P.C. to the appellants, particularly when there are allegations against the appellants constituting the offences under the Act. The learned Public Prosecutor has also supported the argument of the learned counsel for the victim.
8. The first question to be considered is as to whether there is absolute bar against the grant of anticipatory bail in cases under the Act. In order to consider the above question, it will be profitable to go through the provisions of Sections 18 and 18A of the Act. Section 18 of the Act is extracted hereunder:-
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.-Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
Section 18A of the Act is extracted hereunder:
“18-A. No enquiry or approval required.-(1) For the purposes of this Act,-
(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstand
