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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J.
Sreejith, S/o. Shivan S.I. & Ors. – Appellants
Versus
State of Kerala – Respondent
Crl.A.No.1071, 1079, 1080, 1083 of 2019
Decided On : 09-10-2019
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act- Section 3(2)(vii),Section 18 and Section 18A-Criminal Procedure Code- Section 438 enquired to be drawn from the primary materials collected by the investigating officer was of the Act for an offence as envisaged thereunder to be attracted-Those are adequate to draw a conclusion of commission of any of the offence under Section 3 of the SC/ST (POA) Act by the alleged culprits-The bar under Section 18 as well as 18A against exercise of jurisdiction under Section 438 Cr.P.C is applicable in the case of the appellants.
Statement of facts:
Order dated 31.08.2019 was passed by the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) cases, Mannarkkad dismissing CMP No.483 and 484/2019 applications filed by them under Section 438 Cr.P.C. The applications were dismissed and pre-arrest bail sought by the appellants were declined for the reason that prima facie materials are available to attract the offences under the SC/ST(POA) Act and therefore, the Special Court is barred from exercising the discretionary jurisdiction under Section 438 Cr.P.C to grant pre-arrest bail to petitioners. The Special Court had also found that grant of anticipatory bail to petitioners would interfere and hamper with the smooth progress of investigation.
Finding of the court:
The appellants are guilty of the offence under Section 306, IPC and thereby Section 3(2)(v) of SC/ST (POA) Act-. The bar under Section 18 and 18A is strictly applicable in the case on hand.
Result: Dismissed.
Based on the provided legal document, the key legal points are as follows:
The court examined whether the materials collected by the investigating officer are sufficient to prima facie establish the commission of an offence under Section 3 of the SC/ST (Prevention of Atrocities) Act, specifically under Section 3(2)(vii). The court concluded that the primary materials are adequate to establish such offences (!) .
The applicability of the bar under Sections 18 and 18A of the SC/ST (POA) Act was confirmed. The court held that these provisions create a statutory bar against exercising jurisdiction under Section 438 of the Cr.P.C for granting anticipatory bail when prima facie materials indicate the commission of offences under the Act (!) (!) .
The court emphasized that, despite these bars, courts are permitted to conduct a preliminary scrutiny of the allegations in the FIR or complaint to assess whether they are sufficient to prima facie attract offences under the Act or are patently false or fabricated. This scrutiny is limited to a review of the primary allegations and does not extend to a detailed inquiry (!) (!) .
The court clarified that the existence of prima facie evidence does not automatically preclude the grant of anticipatory bail if the allegations are found to be false or unsubstantiated upon initial review. The decision to grant or deny anticipatory bail depends on the veracity and strength of the allegations as indicated by the primary materials (!) (!) .
The court reiterated that the bar under Sections 18 and 18A is not absolute. It allows for a limited examination of the FIR or complaint to determine whether the allegations, when taken at face value, disclose ingredients of the offence or are patently false. This is essential for ensuring that innocent persons are not unnecessarily deprived of liberty (!) (!) .
The court observed that the mere allegation of offences involving offences under the Act, supported by primary materials, generally justifies the refusal of anticipatory bail, especially when investigation indicates the involvement of serious offences and possible conspiracy (!) (!) .
The court underscored that custodial interrogation may be necessary to uncover all aspects of the case, including potential conspiracy or collusion among accused persons. Therefore, refusal of anticipatory bail was justified to facilitate effective investigation (!) (!) .
The court dismissed the appeals, affirming that the order declining anticipatory bail was appropriate given the prima facie materials indicating offences under the Act and the necessity of custodial investigation (!) .
In summary, the court upheld the statutory restrictions on anticipatory bail under the SC/ST (Prevention of Atrocities) Act, emphasizing limited judicial scrutiny of allegations to prevent false accusations while recognizing the importance of custodial investigation for uncovering the truth.
JUDGMENT :
[CRL.A.1071/2019, CRL.A.1079/2019, CRL.A.1080/2019, CRL.A.1083/2019]
Dated this the 9th day of October 2019
1. Accused Nos.2, 3, 4, 5, 6, 7 and 8 in Crime No.425/CB/PKD/R/2019 of Crime Branch, Palakkad are the appellants. Order dated 31.08.2019 was passed by the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) [for short 'SC/ST(POA)') cases, Mannarkkad dismissing CMP No.483 and 484/2019 applications filed by them under Section 438 Cr.P.C. The applications were dismissed and pre-arrest bail sought by the appellants were declined for the reason that prima facie materials are available to attract the offences under the SC/ST(POA) Act and therefore, the Special Court is barred from exercising the discretionary jurisdiction under Section 438 Cr.P.C to grant pre-arrest bail to petitioners. The Special Court had also found that grant of anticipatory bail to petitioners would interfere and hamper with the smooth progress of investigation.
2. It is contended by Sri.Vijayabhanu, the learned Senior Counsel on behalf of appellants in Crl.Appeal Nos.1071/2019 and 1079/2019 that though the SC/ST(POA) Act creates bar under Section 18 and 18A against exercise of authority to grant prearrest bail, High Courts are not barred from exercising it after getting convinced on a perusal of the materials available that those are inadequate to attract the offences under the SC/ST(POA) Act or those are totally false ones, concocted either by the victim or his relatives. According to him, whether the bar under Section 18 and 18A will operate or not, against invocation of power under Section 438 Cr.P.C in a crime depends on the veracity of the allegations and attraction of the ingredients of the offences from the allegations raised. To substantiate his contentions the learned counsel has also relied on certain decisions which are dealt with hereunder :
3. In Crl.A. No.787/2018 (Kiran Madhukar Ingle v. State of Maharasthra), the High Court of Bombay while considering the maintainability of an application seeking pre-arrest bail in view of Section 18 of the Act of 1989, held in paragraphs 13 and 15 which are extracted hereunder :
“13. It is explicitly made clear that the Court of Sessions or High Court can entertain the application for pre-arrest bail to ascertain its maintainability. The law does not permit to reject the application for anticipatory bail merely because the case has been registered under Section 3 of the Act of 1989. But, it is incumbent on the part of the Court to examine as to whether the applicant at all is a fit person to be treated as accused of the crime registered under the Act of 1989. Section 18 of the Act of 1989 does not bar judicial scrutiny of the accusation made in the complaint. When the Court is held competent to enter into scrutiny of the allegations to determine whether the person can be treated as accused of commission of offence under the Act of 1989, then question would arise as to what extent the Court would be justified to examine material to determine the prima facie case against him.
14.xx xx xx xx xx xx
15. The exposition of law as referred above unequivocally pointed to the inference that the application for anticipatory bail can be entertained only on the ground of inapplicability of the provisions of Act of 1989 and it would be ascertainable only on perusal of recitals of the FIR or complaint and not beyond that, because once it is gathered from the FIR that the applicant is accused of committing the offence prescribed under Section 3 of the Act of 1989, a bar under Section 18 of the Act of 1989 would instantly operate against him. Therefore, the Courts are permitted to enter into roving enquiry in regard to sustainability of accusation nurtured on other material to test veracity of the allegations made in the FIR also not permissible under the law.”
4. The offence under Section 3(1)(r)(s) was allegedly committed by the appellants involved in the appeal under consideration of t
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