JISHNU Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant is the accused in Crime No.231 of 2018 of the Mathilakam Police Station, registered under Sections 323, 354(c), 509, 506(1) of the Penal Code and Sec. 3(1)(w)(i)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. He approached the learned Sessions Judge and sought for protection under section 438 of the Crimial P.C., 1973 The learned Sessions Judge by the impugned order rejected the petition holding that Sec. 438 can have no application in a crime registered under the provisions of Act 33 of 1989. The above order is under challenge in this appeal filed under Sec. 14A of the Act.

(2.) The above Crime was registered on 15.3.2018, based on information furnished by a lady aged about 40 years. According to her, the appellant is her neighbour and is previously known to her. Sometime in the month of July, 2016, the appellant managed to record a video using his mobile phone while the de facto complainant was taking her bath in the privacy of her bathroom. Later, he confronted her with the above video and started misbehaving. She had to warn him. After a few days, the appellant approached her and started threatening her with the videotape. He then started demanding money. She initially borrowed a sum of Rs. 25,000.00 and handed it over to him. He persisted with his demands and requested for a sum of Rs. 50,000.00. She managed to procure the money and handed it over to him along with some gold. In the month of March, 2017, he again approached her and demanded a sum of Rs. 20,000.00. The de facto complainant approached the mother of the appellant and took a loan and handed over the money to the appellant. He again demanded a sum of Rs. 50,000.00 and the said amount was also procured and the same was handed over. In the fag end of her complaint, she would state that she is a member of the Scheduled Caste community and that she had to encounter some bad experience from the appellant on that account as well.

(3.) The learned counsel appearing for the appellant would vehemently contend that none of the provisions of Act 33 of 1989 would be attracted. It is further submitted that the long delay of more than 2 years in setting the law in motion without any cogent explanation would destroy the very credibility of the allegations levelled by the de facto complainant. He would further refer to Annexure-A3 FIR in Crime No.205 of 2017 registered at the instance of the de facto complainant on 1.2.2017 against one Karthikeyan. Similar allegation of infringement of the provisions of Act 33 of 1989 has been levelled against the said accused as well. He further points out that if, in fact, an incident of the nature alleged had taken place in the year 2016, the de facto complainant would necessarily have lodged the complaint much earlier, particularly when, she has got another crime registered against the aforesaid Karthikeyan on 1.2.2017. Finally, the learned counsel submitted that the perusal of the F.I.Statement would not show that the act was committed by the appellant with a view to exploit the de facto complainant knowing that she is a member of a Scheduled Caste. He would also refer to the judgment of the Apex Court in Subhash Kasinath Mahajan (Dr.) Vs. State of Maharashtra and Another [2018 (2) KHC 207] and it was contended that extensive guidelines have been issued by the Apex Court taking note of the abuse of the provisions of the Act and it was held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act, if no prima facie case is made out or where on judicial scrutiny, the complaint is found to be prima facie mala fide. Reliance was also placed on Vilas Pandurang Pawar and Another Vs. State of Maharashtra [AIR 2012 SC 3316] to bring home his point that a duty is cast on the court to verify the averments in the complaint and find out whether the offence under the Act has been prima facie made out.