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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Alexander Thomas, J.
Jafar Sadhik Thangal And Ors. – Petitioners
Versus
State Of Kerala, Rep By Public Prosecutor And Ors. – Respondents
Bail Appl..No.8763 OF 2019
Decided On : 17-12-2019
The Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act,1989- Sec.3(1)(va);;Indian Penal Code- Secs.354A(1)(ii), (iii), (iv), 509 & 506-The offence as per Sec.354A and the various sub-sections thereto are bailable offences, it goes without saying that the offence as per Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989, for allegedly having committed the abovesaid IPC offences in the Schedule to the said Act, will also be a bailable offence, so long as the principal offences as per the IPC are bailable offences-Offences alleged against the petitioner are those punishable under Secs.354A and its various sub-sections and Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989-All the above alleged offences are bailable offences-Offences are thus bailable offences, the plea for anticipatory bail under Sec.438 Cr.P.C., which is only in respect of non-bailable offences, is redundant and cannot be pressed into service.
Statement of facts:
The offences initially registered in the said crime are those punishable under Secs.354A(1)(ii), (iii), (iv), 509 & 506 of the IPC. As the lady defacto complainant in this case belongs to Scheduled Caste community (SC), the Police after investigation has later added the offence as per Secs. 3(2)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended. At the outset, the Prosecutor would point out that the investigation has subsequently revealed that the 4th petitioner (accused No.4) belongs to SC community and therefore, the offence as per the abovesaid SC/ST (POA) Act cannot be pressed into service as against him. Further that, the Police after investigation has also found that the allegations raised as against the 3rd and 5th petitioners (A3 and A5) are factually false and investigation agency has already filed report before the Special Court concerned deleting the said A3 and A5 from the said accused array. Therefore, as of now, only the 1st and 2nd petitioners (A1 and A2) are in the accused array, whose anticipatory bail plea alone become the subject matter of this case. Needless to say that the plea for anticipatory bail in respect of the 3rd and 5th petitioners (A-3 & A-5) has become redundant as they are no longer arrayed in the accused array. Further, since the offence as per Sec. 3(2)(v)(a) of the SC/ST (POA) Act, 1989 has not been pressed into service as against the 4th petitioner (A4) and as all the other offences alleged against him as per the IPC are bailable offences. Therefore, his plea for anticipatory bail has also become redundant and it is for him to work out his remedies by approaching the competent criminal court concerned by seeking bail under Sec.436 of the Cr.P.C. for grant of bail in cases involving only bailable offences.
Finding of the court:
The proper remedy of the petitioners is to move the competent court concerned (viz., Special Court concerned) for bail as per Sec.436 of the Cr.P.C, which is for bailable offences-Where the accused person approaches the Special Court concerned and makes an application under Sec.436 of the Cr.P.C, the said court is obliged to grant bail, as all the offences alleged therein are bailable offences. The position in that regard is declared and ordered.
Result: Bail Application will stand disposed of.
ORDER :
The petitioners herein have been arrayed as the accused Nos.1 to 5 among the five accused initially arrayed in the instant Annexure-B Crime No.773/2019 of Vadanappally Police Station. The offences initially registered in the said crime are those punishable under Secs.354A(1)(ii), (iii), (iv), 509 & 506 of the IPC. As the lady defacto complainant in this case belongs to Scheduled Caste community (SC), the Police after investigation has later added the offence as per Secs. 3(2)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended. At the outset, the Prosecutor would point out that the investigation has subsequently revealed that the 4th petitioner (accused No.4) belongs to SC community and therefore, the offence as per the abovesaid SC/ST (POA) Act cannot be pressed into service as against him. Further that, the Police after investigation has also found that the allegations raised as against the 3rd and 5th petitioners (A3 and A5) are factually false and investigation agency has already filed report before the Special Court concerned deleting the said A3 and A5 from the said accused array. Therefore, as of now, only the 1st and 2nd petitioners (A1 and A2) are in the accused array, whose anticipatory bail plea alone become the subject matter of this case. Needless to say that the plea for anticipatory bail in respect of the 3rd and 5th petitioners (A-3 & A-5) has become redundant as they are no longer arrayed in the accused array. Further, since the offence as per Sec. 3(2)(v)(a) of the SC/ST (POA) Act, 1989 has not been pressed into service as against the 4th petitioner (A4) and as all the other offences alleged against him as per the IPC are bailable offences. Therefore, his plea for anticipatory bail has also become redundant and it is for him to work out his remedies by approaching the competent criminal court concerned by seeking bail under Sec.436 of the Cr.P.C. for grant of bail in cases involving only bailable offences.
2. In short, the prosecution case is that the accused persons and the lady defacto complainant were activists of a political youth organisation viz. Democratic Youth Federation of India (DYFI) and that out of enmity, the 1st and 2nd petitioners herein (A1 and A2) have been threatening and intimidating the lady defacto complainant through phone calls etc. since May 2018 and talking to her in sexually lewd and sexually coloured manner etc. and thus denigrating her modesty as a woman. Further that, the accused persons have threatened her that they have in their possession her naked pictures and videos and that if the lady gives any complaint to the Police, they would kill her and A1 had also lifted his dhoti and showed it to her during a scuffle.
3. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly, taking into account some of the pleas made by Sri.P.Arunkumar, learned Advocate appearing for R-4 (lady de facto complainant), this Court had suggested to both sides to thrush out their differences by mutual discussion. The learned Advocate appearing for the petitioners and the learned Advocate appearing for R-4 has now submitted that the parties have entered into some discussions and the learned Advocates appeared would submit that it is hoped that the said discussion may bring them results.
4. Be that as it may, it has been noted at the outset that all the offences in relation to Sec.354A and the sub-sections thereto are all bailable offences going by the part-I of the Schedule appended to the Cr.P.C, which deals with the classification of the offences. The offence as per Sec.3(1)(va) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act is only in relation to committing an offence in the IPC, which is included in the Schedule of the to the SC/ST (Prevention of Atrocities) Act, 1989 as amended. Sec.3(2)(va) stipulates that whoever, not being a member of a Scheduled Caste or a Sched
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