SREEJITH Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused Nos.2, 3, 4, 5, 6, 7 and 8 in Crime No.425/CB/PKD/R/2019 of Crime Branch, Palakkad are the appellants. Order dated 31.08.2019 was passed by the Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) [for short 'SC/ST(POA)') cases, Mannarkkad dismissing CMP No.483 and 484/2019 applications filed by them under Section 438 Cr.P.C. The applications were dismissed and pre-arrest bail sought by the appellants were declined for the reason that prima facie materials are available to attract the offences under the SC/ST(POA) Act and therefore, the Special Court is barred from exercising the discretionary jurisdiction under Section 438 Cr.P.C to grant pre-arrest bail to petitioners. The Special Court had also found that grant of anticipatory bail to petitioners would interfere and hamper with the smooth progress of investigation.

(2.) It is contended by Sri.Vijayabhanu, the learned Senior Counsel on behalf of appellants in Crl.Appeal Nos.1071/2019 and 1079/2019 that though the SC/ST(POA) Act creates bar under Section 18 and 18A against exercise of authority to grant pre- arrest bail, High Courts are not barred from exercising it after getting convinced on a perusal of the materials available that those are inadequate to attract the offences under the SC/ST(POA) Act or those are totally false ones, concocted either by the victim or his relatives. According to him, whether the bar under Section 18 and 18A will operate or not, against invocation of power under Section 438 Cr.P.C in a crime depends on the veracity of the allegations and attraction of the ingredients of the offences from the allegations raised. To substantiate his contentions the learned counsel has also relied on certain decisions which are dealt with hereunder :

(3.) In Crl.A. No.787/2018 (Kiran Madhukar Ingle v. State of Maharasthra), the High Court of Bombay while considering the maintainability of an application seeking pre-arrest bail in view of Section 18 of the Act of 1989, held in paragraphs 13 and 15 which are extracted hereunder :