DINESH M. vs STATE OF KERALA

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 2ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 BAIL APPL. NO. 6597 OF 2021 CRIME NO.570/2021 OF Feroke Police Station, Kozhikode PETITIONER/ACCUSED:
K.M.BASHEER, AGED 61 YEARS, S/O. K.M. UNNI HASSAN, SAHIDA MANZIL, KARUVANTHIRUTHY P.O., KOZHIKODE.
BY ADVS.
SRI.P.P.JACOB SMT.MARIYAM JACOB SMT.MARIYA TITTY RESPONDENTS/COMPLAINANTS/STATE:
1 RAJANI K.T., VELUTHEDATH HOUSE, DREAM HUT, NALLUR, FEROKE, KOZHIKODE-673631.
2 THE STATION HOUSE OFFICER/ASSISTANT COMMISSIONER OF POLICE, FEROKE POLICE STATION, FEROKE, KOZHIKODE-673631.
3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
BY ADVS.
SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR SRI.C.S.MANILAL SRI.S.NIDHEESH SRI.K.K.DHEERENDRA KRISHNAN, AMICUS CURIAE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.08.2022, ALONG WITH Bail Appl.NOS.8219/2021, 1242/2022 &
4346/2022, THE COURT ON 02.09.2022 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 2ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 BAIL APPL. NO. 8219 OF 2021 CRIME NO.570 OF 2021 OF HEMAMBIKA NAGAR POLICE STATION, PALAKKAD PETITIONER/2ND ACCUSED:
BINEESH, AGED 25 YEARS, S/O. UDAYAKUMAR, KRIPA NIVAS, PAITTAMKUNNU, DHONI, PALAKKAD.
BY ADVS.
SRI.V.M.KRISHNAKUMAR RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 THE DEPUTY SUPERINTENDENT OF POLICE, PALAKKAD 678 014.
3 THE STATION HOUSE OFFICER, HEMAMBIKA NAGAR POLICE STATION, ATHIRA NAGAR, PUTHUPPARIYARAM, PALAKKAD DISTRICT 678 009.
4 ANITHA.M.
AGED 34 YEARS, W/O. ABDUL AZEEZ, E.M.S. NAGAR, IST LANE, DHONI, PALAKKAD 678 009.
BY SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR ADV. V.A.VINOD SRI.K.K.DHEERENDRA KRISHNAN, AMICUS CURIAE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.08.2022, ALONG WITH Bail Appl.NO.6597/2021 & CONN.
CASES, THE COURT ON 02.09.2022 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 2ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 BAIL APPL. NO. 1242 OF 2022 CRIME NO.1503 OF 2021 OF KURAVILANGADU POLICE STATION, KOTTAYAM PETITIONER/ACCUSED:
SHINY SATHYAN AGED 50 YEARS,D/O SUMATHY SATHYAN, CHOLLANAL HOUSE, KURAVILANGAD P O, KOTTAYAM, PIN 686633 BY ADVS.
SRI.R.T.PRADEEP SRI.BINDUDAS M RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031
2 DEEPA V AGED 39, WIFE OF SATHEESH, PULINILKKUMTHADATHIL VEEDU, KADUVAKKUZHY BHAGAM, KURAVILANGAD, KOTTAYAM, PIN 686633 BY ADVS.
SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR SRI.GEORGIE JOHNY THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.08.2022, ALONG WITH Bail Appl.NO.6597/2021 & CONN.
CASES, THE COURT ON 02.09.2022 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 2ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 BAIL APPL. NO. 4346 OF 2022 CRIME NO.472 OF 2022 OF ERNAKULAM SOUTH POLICE STATION PETITIONER/ACCUSED:
DINESH M.
AGED 43 YEARS NAISSERY HOUSE, NEW LANE, THOTTAKATTUKARA, ALUVA,ERNAKULAM, PIN - 683108 BY ADVS.
SRI.K.DHRUV KUMAR SRI.SHAKTHI PRAKASH SRI.HARIKRISHNAN M.S.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031
2 ASSISTANT COMMISSIONER OF POLICE ERNAKULAM, PIN - 682015
3 STATION HOUSE OFFICER ERNAKULAM TOWN SOUTH POLICE STATION, PIN - 682015
4 XXXX BY ADVS.
SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR SRI.K.R.VINOD SMT.M.S.LETHA SMT.K.S.SREEREKHA SRI.NABIL KHADER SRI.JOHN TONY AKKARA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.08.2022, ALONG WITH Bail Appl.NO.6597/2021 & CONN.
CASES, THE COURT ON 02.09.2022 PASSED THE FOLLOWING:
“C.R.”
BECHU KURIAN THOMAS, J.
-------------------------------------
B.A. Nos.6597, 8219 of 2021 &
1242, 4346 of 2022 ------------------------------------
Dated this the 2nd day of September, 2022

ORDER

This court is called upon to resolve an apparent incongruity in the matter of grant of anticipatory bail to those alleged to have committed offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act'). When the said statute provides an absolute prohibition on the applicability of the provisions of section 438 of Cr.P.C, the Supreme Court had, in Prathvi Raj Chauhan v. Union of India and Others [(2020) 4 SCC 727] observed that if the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created by section 18 and section 18A(1), shall not apply. The difficulty arises as to the forum where the absence of prima facie case can be agitated. The difficulty is compounded by the observations in the aforenoted judgment coupled with the creation of Special Courts and the conferment of appellate jurisdiction on the High Court under sections 14 and 14A of the SC/ST Act.

2. Petitioners in these four cases are alleged to have committed offences punishable under the SC/ST Act. Petitioners in B.A No. 6597/2021 and B. A No. 1242/2022 have invoked the jurisdiction of this Court under section 438 of the Code of Criminal Procedure 1973, (for short, Cr.P.C) without having approached any other Court. Petitioners in B.A No. 8219/2021 had filed an application for anticipatory bail before the Special Court, which was dismissed as not maintainable, while petitioner in B.A No. 4346/2022 had approached the Sessions Court which was dismissed after finding that a prima facie case under the SC/ST Act is made out.

3. When B.A No. 6597/2021 and B.A No. 8219 of 2021 came up for consideration on 14-12-2021, a learned Single Judge of this Court (P. Gopinath J.) raised two significant questions relating to the implication of the observations of the Supreme Court in Prathvi Raj Chauhan’s case vis-a-vis the forum for considering the anticipatory bail applications. Later, B.A No.

4346/2022 and B.A No. 1242/2022, were also heard along with the earlier mentioned cases, at the request of the respective Counsel. Hence the questions were required to be altered and the same are rephrased as follows:

“(i) In view of the observations in Prathvi Raj Chauhan’s case, whether the High Court alone has jurisdiction to consider an application under section 438 or under section 482 of Cr.P.C?

(ii) In view of the observations in Prathvi Raj Chauhan’s case, whether the High Court has concurrent jurisdiction to consider an application under section 438 of Cr.P.C?

(iii) In view of the observations in Prathvi Raj Chauhan’s case, can an accused, whose application for anticipatory bail was rejected by the Special Court or the Sessions Court, file another application under section 438 of the Cr.P.C before the High Court or should it be by an appeal under section 14A of the Act?

(iv) In view of the observations in Prathvi Raj Chauhan’s case, is it the Sessions Court or the Special Court that must consider the application for anticipatory bail?”

4. To assist the court in answering the above questions, Adv.K.K.Dheerendra Krishnan was appointed as Amicus Curiae and he argued the matter exhaustively. I also heard the arguments of Adv. S.Manilal, who argued with great elan, along with Adv. K.R.Vinod, Adv. R.T. Pradeep, Adv.K.L. Dhruv Kumar, and Adv. Georgie Johny as well as Sri.K.A.Noushad, the learned Public Prosecutor.

5. In order to comprehend the contours of the questions formulated by this Court, it is necessary to mention that section 18 of the SC/ST Act created a bar for entertaining applications for anticipatory bail. However, by the judgment in Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Another [(2018) 6 SCC 454], it was held that anticipatory bail could be granted if a prima facie case of commission of an offence under the Act is not made out or if it can be shown that the allegations were false. Other directions were also issued by the Court in the aforestat

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