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2025 DIGILAW 677 (KER)

Viswamithran S/o. late K. nanu v. State Of Kerala

2025-03-20

C.S.SUDHA

body2025
JUDGMENT : (C.S. SUDHA, J.) This appeal under Section 14A of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the Act) has been filed by the informant/injured in crime no.1877/2024, Kundara police station, aggrieved by the order dated 31/12/2024 in Crl.M.P. No.381/2024 on the file of the Court of the Special Judge for Scheduled Caste/Scheduled Tribe (POA) Act Cases, Kottarakkara, by which the request for pre-arrest bail under Section 482 of BNSS by the 4 th respondent/accused in the crime was allowed. 2. The appellant herein will be referred to as the informant/injured and the 4 th respondent herein as the accused. 3. The prosecution case is that the informant/injured, a member of the Kerala Congress (M) District Committee, Kollam, along with Rajeev, another party worker, on 10/12/2024 between 10:30 a.m. and 11:00 a.m. went to the office of the Perayam Panchayat for enquiring about the permit for house construction. He met the Secretary of the Panchayat and made necessary enquiries and was coming out of the office of the Panchayat at which time, the accused through Rajeev called him to the room of the President. When he reached the office room of the President, the accused, a Christian, knowing that the informant/injured is a member of the Scheduled Caste abused him by calling obscene words and also by his caste name. The accused voluntarily caused hurt to him by jabbing him on his left chest with the key of a vehicle causing pain. The accused also pushed and hit him causing pain. When the informant/injured came out of the room, the accused followed him and again repeated the act of abuse and threatened him with dire consequences. Hence, as per Annexure A1 FIR, the accused is alleged to have committed the offences punishable under Sections 115(2), 118(1), 351(2), 296(b) BNSS and Section 3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act). 4. It was submitted by the learned counsel for the informant/injured that the offence under Section 3(1)(s) of the Act is clearly made out and so the bar under Sections 18 and 18A of the Act is attracted. In such circumstances, the finding of the trial court that no offence under the Act is attracted is apparently incorrect/wrong. 4. It was submitted by the learned counsel for the informant/injured that the offence under Section 3(1)(s) of the Act is clearly made out and so the bar under Sections 18 and 18A of the Act is attracted. In such circumstances, the finding of the trial court that no offence under the Act is attracted is apparently incorrect/wrong. This argument is supported by the learned Public Prosecutor also who submitted that the incident took place in the office room of the President of the Panchayat, which is a public place within public view and hence the offence under Section 3(1) (s) of the Act is made out. 4.1. Per contra, it was submitted by the learned counsel appearing for the accused that the alleged offence was not committed within public view and hence the trial court was right in holding that no offence under the Act is made out. That being the position, no interference into the impugned order is called for, goes the argument. 5. On going through the FIS in the CD file handed over to me during the course of arguments, the allegation is that the accused abused the informant/injured by calling him obscene words as well as his caste name. The place of occurrence is stated to be the office room of the President of the panchayat. The person who was present in the room apart from the accused is stated to be his colleague Rajeev, with whom the informant/injured had gone to the office of the Panchayat to make necessary enquiries. In this context, I refer to the dictum in Rabindra Kumar Chhatoi v. State of Odisha , 2024 KHC 8559 (SC) . In the said case, the appellant therein was alleged to have uttered words against the second respondent therein, a member of the scheduled caste within public view. The second respondent therein sought to repair her house which was situated adjacent to the appellant's house along with her labourers and went to the latter's house without seeking his prior permission, which was objected to by the appellant therein. The place of occurrence was at the backyard of the appellant's house. It was held that backyard of a private house cannot be within public view. The place of occurrence was at the backyard of the appellant's house. It was held that backyard of a private house cannot be within public view. The persons who accompanied the second respondent were her employees or the labour force she had engaged for the purpose of carrying out repairs to her house and hence they could not be termed as 'public in general'. In the said circumstance, it was held that the alleged abuse by the appellant was not in any place within public view. Holding so, the application for discharge which had been dismissed by the trial court and the High Court was allowed by the Apex Court and the appellant discharged of the offences alleged to have been committed by him. 6. The place of occurrence, the office of the President of the panchayat, is a public place as pointed out by the learned Public Prosecutor. But the question is not whether the abuse took place in a public or a private place, but the question is whether the abuse took place within public view. Going by the FIS, the alleged abuse took place inside the room of the President of the Panchayat in the presence of Rajeev, who is none other than the colleague of the informant/injured. Nobody else other than the accused and the informant/injured seem to have been present. Going by the dictum in Rabindra Kumar Chhatoi (Supra), the colleague of the informant/injured can by no means be stated to be ‘public in general’. Further, there is also an allegation in the FIS that upon hearing the commotion, the other persons present in the office of the Panchayat had come rushing to the room of the President. However, it appears that they arrived at the scene after the alleged abuse took place. In such circumstances, the trial court was right in holding that prima facie there is no evidence to show that an offence under the Act is attracted. 7. It was further submitted by the learned counsel for the informant/injured that the trial court had not given sufficient opportunity to produce all documents to convince the court that the accused was not entitled to pre-arrest bail as he has criminal antecedents. The Act says that notice must be given and opportunity of hearing must be provided to the informant/injured. It was further submitted by the learned counsel for the informant/injured that the trial court had not given sufficient opportunity to produce all documents to convince the court that the accused was not entitled to pre-arrest bail as he has criminal antecedents. The Act says that notice must be given and opportunity of hearing must be provided to the informant/injured. No such opportunity was given and hence this was cited as another ground for setting aside the impugned order. 8. Going by the submissions made by either side, the appeal was admitted by the trial court on 22/12/2024, on which day, the informant/injured also entered appearance through counsel. The case was adjourned to 30/12/2024, on which day, the matter was heard and the impugned order was passed on 31/12/2024. Therefore, it is seen that time was granted till 30/12/2024 to enable the Prosecutor to get necessary instructions as well as the informant/injured to produce necessary documents. Hence, it is not right to say that no opportunity at all was granted to the informant/injured to produce documents or advance his arguments before the trial court. However, as such an argument was advanced, this Court gave sufficient opportunity to both sides to produce all the documents in support of their respective case. Both sides have produced various documents in support of their respective contentions. Referring to Annexures A5, A6 and A9, it was submitted by the learned counsel for the informant/injured that the accused has criminal antecedents and so the trial court ought not to have given pre-arrest bail. Reference was also made to Annexure A7 order as per which the accused was granted bail in Annexure A6 crime. One of the conditions imposed while granting bail was that he shall not commit any offences while on bail. In violation of the said condition, the accused committed Annexures A1 and A5 crimes, which is one another reason for rejecting his request for bail. The learned Public Prosecutor supports the argument and submitted that four other crimes have been registered against the accused. 9. As per Annexure A5 FIR, on 13/09/2024 the accused herein is alleged to have committed the offences punishable under Sections 126(2), 115(2) and 118(1) BNSS. The FIS is seen registered on 08/10/2024 only, that is, nearly after a month. The learned Public Prosecutor supports the argument and submitted that four other crimes have been registered against the accused. 9. As per Annexure A5 FIR, on 13/09/2024 the accused herein is alleged to have committed the offences punishable under Sections 126(2), 115(2) and 118(1) BNSS. The FIS is seen registered on 08/10/2024 only, that is, nearly after a month. In Annexure A6 FIR, the accused herein on 06/12/2021 is alleged to have committed the offences punishable under Sections 294(b), 323, 354 & 506 IPC. Annexure A6 FIR is seen registered on 18/12/2021. As per Annexure A9 crime, the accused herein on 08/10/2024 is alleged to have committed offences punishable under Sections 296(b), 115(2) and 351(2) BNSS. The FIR is seen registered on 07/02/2025. Apart from Annexures A5, A6 and A9, the report of the investigating officer shows that the accused is involved in two other crimes, that is, Kundara police station, Crime No.1177/2021 under Sections 143, 147, 188, 283, 149 IPC and Kundara police station, Crime No.943/2022 under Sections 143, 147, 188, 283, 149 IPC. 10. As per Annexure A7 order dated 15/06/2022 in bail application No.9929/2021, the accused herein was granted bail in Annexure A6 crime. One of the conditions imposed while granting bail was that he shall not commit any offences while on bail. Therefore, the question is whether the said condition has been violated by the accused herein. Annexure A6 crime is apparently before Annexure A7 order dated 15/06/2022. But Annexures A5 and A9 crimes are after Annexure A7 order. The date of commission of the crimes referred to by the investigating officer in his report has not been made available. It appears that they were all committed before Annexure A7 order. It is true that the present crime, that is, Annexure A1 crime has been committed after Annexure A7 order dated 15/06/2022. However, there is a counter case also to Annexure A1 FIR, that is, Annexure A2 FIR alleging the commission of the offences punishable under Sections 296(b), 126(2), 118(1), 115(2), 132, 351(2) & 3(5) of BNSS. In Annexure A2 crime, the informant/injured herein is the accused. It is true that Annexure A5 crime is also seen committed after Annexure A7 order. However, there is a counter case to the said crime also, that is, Annexure R4 crime. In Annexure A2 crime, the informant/injured herein is the accused. It is true that Annexure A5 crime is also seen committed after Annexure A7 order. However, there is a counter case to the said crime also, that is, Annexure R4 crime. At this stage this Court cannot decide or form an opinion as to which set of allegation(s) is true or false. The same can be decided only after evidence is let in. That being the position, I find that no grounds are made out to cancel the bail that has already been granted. In these circumstances, I find no infirmity in the impugned order calling for an interference by this Court. Therefore, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.