Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 528 (KER)

Antony S/o. Late Thomakutty v. State Of Kerala

2025-03-10

C.JAYACHANDRAN

body2025
ORDER : C. JAYACHANDRAN, J. The petitioners herein are the accused persons in crime no.322/2012, now pending as S.C. No.343/2019 of the Special Court for SC/ST (Prevention of Atrocities) Act Cases, Thrissur. The offences alleged under Sections 452, 324, 354, 427, 294 (b), read with Section 34 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST POA Act’ for short). The petitioners seek Annexure-A4 final report, Annexure-A6 Court charge in S.C. No.343/2019 and all further proceedings in the said Sessions Case to be quashed. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Notice issued to the fourth respondent/defacto complainant was returned with the endorsement “unclaimed”, wherefore sersvice on that respondent is considered as deemed. Perused the records. 3. The learned counsel for the petitioners submitted that the incident took place on 21.04.2012 and a crime was registered as crime no.322/2012 of Cherppu Police Station, Thrissur. Therein, the offences alleged were under Sections 452, 324, 294(b), 354 and 427, read with Section 34 of the Indian Penal Code. The investigation was complete and the final report was filed before the Jurisdictional Magistrate. After six years, an application was preferred by the Investigating OfÏcer under Section 173 (8) of the Criminal Procedure Code, seeking further investigation. The same was allowed, vide Annexure-A3. A perusal of paragraph no. 2 of Annexure-A3 would indicate that one among the aggrieved persons / CW3 preferred a complaint before the District Police Chief for further investigation and, accordingly, the case was re-opened. Pursuant to Annexure-A3, investigation was conducted and Annexure-A4 final report was filed, wherein offence under Section 3(1)(ix) of the SC/ST POA Act is also seen incorporated. Learned counsel invited the attention of this Court to the statements of the injured persons, as originally recorded, and the one recorded during the course of further investigation. In the statements originally recorded, there is no allegation whatsoever, with respect to the dishonour, or for that matter, outraging the modesty of the injured persons. There is not even a reference to the caste status of the petitioners, or for that matter, of the accused persons in their original statements. In the statements originally recorded, there is no allegation whatsoever, with respect to the dishonour, or for that matter, outraging the modesty of the injured persons. There is not even a reference to the caste status of the petitioners, or for that matter, of the accused persons in their original statements. When it came to the statements recorded during the course of further investigation, there is a reference to the caste status, and it is stated that the injured persons belongs to the Hindu – Vettuva community, whereas the accused persons were Christians; and that the allegation of the trespass and assault was made by the accused persons with knowledge that the injured persons belongs to the caste, Hindu – Vettuva. The learned counsel would emphatically submit that, in the subsequent statements as well - baring from reference to the caste status - there is nothing stated, so as to attract the offence under Section 3(1)(xi) of the SC/ST POA Act (unamended). There is no allegation that assault or force, was used with intent to dishonour or outrage the modesty of the victims. The learned counsel would rely upon the recent judgment of the Hon’ble Apex Court in Dashrath Sahu v. State of Chhattisgarh [2024 KHC 8036] to point out that, unless the alleged overt act is committed with the intent to dishonour or outrage the modesty, the offence under Section 3(1)(xi) of the SC/ST POA Act will not lie. It was also held that an offence must be committed on a person belonging to the scheduled caste or scheduled tribe, with the intention that it was being done on the ground of caste. The learned counsel would hasten to add that, if the alleged aggression is on the ground of caste, the same would have found a place in the original statement made by the alleged victims. The very fact that they have chosen to give a complaint to the District Police Chief after a lapse of six years, so as to incorporate the offence under the SC/ST POA Act, itself, will tell harsh on their bona fides, besides, establishing, beyond the pale of any doubt, that the caste status of the victims had absolutely no role in the perpetration of the alleged crime. Learned counsel would submit that the petitioners would confine their relief in quashing the offence under Section 3(1)(xi) of the SC/ST POA Act. 4. Learned counsel would submit that the petitioners would confine their relief in quashing the offence under Section 3(1)(xi) of the SC/ST POA Act. 4. This application was seriously opposed by the learned Public Prosecutor. He would submit that an inadvertent omission on the part of the victims to specify their caste status, cannot be taken advantage of by the petitioners. The question as to whether the delay is properly explained or not, is a matter for the Trial Court to decide, and the same is no ground to seek quashment under Section 482 of Cr.P.C, is the submission made by the learned Public Prosecutor. 5. Having heard the learned counsel for the respective parties, this Court finds considerable force in the submission made by the learned counsel for the petitioners. A few facts are telling. Primarily, the offence in question is of the year 2012. Admittedly no offence under the SC/ST POA Act was canvased by the alleged victims, or for that matter, by the Investigating OfÏcer. Investigation was completed, and the final report was filed. It is after a lapse of six years that one among the injured / CW3, chose to approach the District Police Chief with a grievance with respect to the offence under SC/ST POA Act. It is accordingly, that an application was preferred by the Investigating OfÏcer under Section 173 (8) Cr.P.C., which was permitted, vide Annexure-A3 order. 6. As rightly pointed out by the learned counsel for the petitioners, there is no whisper in the subsequent statements that the petitioners have done any act with intent to dishonour or outrage the modesty of the de- facto complainant or other injured persons. There is no quarrel that the original statements of the de-facto complainant and other victims are completely silent with respect to the caste status of the petitioners, or for that matter, the victims. There is no allegation, whatsoever, that the atrocity was meted out against the victims, owing to their caste status. The solitary difference, when it comes to the subsequent statement taken during the course of further investigation, is only by way of a reference to the caste of the petitioners/ accused persons and the victims / injured persons. A mere reference to the caste status, unless accompanied by the necessary ingredients constituting the offence under Section 3(1) (xi), is of no avail. A mere reference to the caste status, unless accompanied by the necessary ingredients constituting the offence under Section 3(1) (xi), is of no avail. Noticing the rampant misuse of the provisions of the SC/ST POA Act, the Hon’ble Supreme Court clarified in several judgments that a mere reference to the caste status will not sufÏce, unless the offence is perpetrated owing to such caste status of the victims. The recent judgment is the one in Dashrath Sahu (supra). The findings in Paragraph no. 8 of the judgment is extracted hereunder: “9. A plain reading of the section makes it clear that the offence of outraging the modesty should be committed with the intention that the victim belonged to the Scheduled Caste category”. In paragraph no.9, the Hon’ble Supreme Court found that the offending acts were not committed by the accused in that case, with the intention that he was doing so upon a person belonging to the scheduled caste. The findings in Paragraph nos.10 and 11 are extracted hereunder. “10. In the said judgment, this Court dealt with a case involving offence under S.3(2)(v) of the SC / ST Act. The language of S.3(1)(xi) of the SC / ST Act is pari materia as the same also provides that the offence must be committed upon a person belonging to Scheduled Castes or Scheduled Tribes with the intention that it was being done on the ground of caste. 11. Considered in light of the above factual and legal position, we are of the opinion that the conviction of the accused appellant for the offence under S.3(1)(xi) of the SC / ST Act was otherwise also not sustainable on merits. Hence, the conviction of the accused appellant as recorded by the Trial Court and upheld by the High Court for the offence under S.3(1)(xi) of the SC / ST Act is hereby set aside and quashed. The appellant is acquitted of the charge under S.3(1)(xi) of the SC / ST Act. The appellant is on bail. His bail bonds are discharged”. 7. It could thus be seen that, in order to constitute the offence under Section 3(1)(xi) SC/ST POA Act, the offence must be committed upon a person belonging to the Scheduled Caste or Scheduled Tribe, with the intention that it was being done on the ground of caste. The said ingredient is conspicuously absent in the attendant facts. 7. It could thus be seen that, in order to constitute the offence under Section 3(1)(xi) SC/ST POA Act, the offence must be committed upon a person belonging to the Scheduled Caste or Scheduled Tribe, with the intention that it was being done on the ground of caste. The said ingredient is conspicuously absent in the attendant facts. Therefore, the petitioners are well within their limits in seeking quashment of Section 3(1)(xi) SC/ST POA Act. 8. In the result, this Criminal Miscellaneous Case succeeds in part, and the offence under Section 3(1)(xi) of the SC/ST POA Act, incorporated in Annexure-A4 final report will stand quashed. Other offences in Annexure-A4 will remain intact. 9. This Court notice that by virtue of the quashment of the offence under the SC/ST POA Act, the Special Court, Thrissur may cease to have jurisdiction. The learned Sessions Judge will do the needful in this regard in accordance with the law. This Criminal Miscellaneous Case is disposed of accordingly.