The Hon’ble Kerala HC in a recent case allowed pre-arrest bail to two persons accused of being part of a group that sprayed ‘chemical’ spray-on activist Bindu Ammini when she approached the Ernakulam City Commissioner’s office in 2019 seeking police protection for her pilgrimage to the Sabarimala temple.
The Hon’ble Bench discovered that the accusations made against BJP/RSS workers emerged to be contaminated. Pertinently, the Hon’ble SC denied issuing police protection orders in favor of the petitioner and other activists who sought to enter the temple as the issue was ’emotive’.
The Hon’ble Court, after monitoring the witness statements, to the police about the attack, along with an audio-visual recording, determined that no case against the accused was disclosed from the evidence available.
In reverence to this, the Hon’ble Court noted, Even though the victim had stated in the First Information statement that the appellant including accused persons, approached her chanting the “Ayyappa hymns”, thereafter one of the accused sprayed the chemical substance on the victim. In her subsequent statement, she declared that the accused and others protesting the entry of women into the Sabarimala temple touched her body in the existence of public and humiliated her by calling ‘Urban Naxal’.
Nevertheless, the Hon’ble Court indicated that the area surrounding the Commissioner’s office that day was surrounded by media persons and yet there were no visual showing accused persons. The video footage did not carry out the accusation that the accused had touched her and called her an urban Naxal, the Court found.
The Hon’ble Court further questioned that why allegations against the accused persons were made after eleven months of the incident, the Court reasoned that the case as against the accused appeared to be tainted by mala des. The Court remarked, “It is not disputed that the entry of women activists to Sabarimala Temple was a controversial issue during the relevant period. It is also not disputed that in the said issue, the Government of Kerala was on one side and the RSS/BJP and many Hindu organizations were on the other side.”
On the application of Section 438 of the Criminal Procedure Code, 1973 when allegations were made under the SC/ST (Prevention of Atrocities) Act, 1989 A key question that arose for the Court’s consideration was whether the appellants were entitled to anticipatory bail in light of provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 invoked against them.
Given the same, the Hon’ble Court ruled the Hon’ble SC Judgment on Subhash Kashinath Mahajan vs. the State of Maharashtra had held that anticipatory bail under Section 438 could be granted for 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 de.
Thereafter considering and hearing both the sides the Hon’ble Court is of the view “Where the Hon’ble HC discovers that no prima facie case is made out or where on judicial examination, the Hon’ble court finds that the complaint is prima facie malade, the Hon’ble HC will be right in passing an order granting pre-arrest bail if the Hon’ble Court is further satisfied that if the pre-arrest bail is not granted, the result would unavoidably be a miscarriage of justice or abuse of process of law.”
Needful to mention, that after the Hon’ble Constitution Bench of the Hon’ble Supreme Court held the ban on entry of women in the age group of 10-50 to be unconstitutional in its judgment delivered on September 28, 2018, Petitioner along with another woman had entered the temple on January 2, 2019
Coram: The Hon’ble Mr. Justice B. Sudheendra Kumar
Citation: CRL.A.No.9 OF 2021