SHAJAN SKARIA v. THE STATE OF KERALA & ANR

Citation: (2020) 10 SCC 710

Court: Allahabad High Court (Lucknow Bench)

Bench: Shajan Skaria

Case summary

is sought to be remedied and punished by the 1989 Act - Not every intentional insult or intimidation of a

Judgment text

SUPREME COURT OF INDIA Shajan Skaria v. The State of Kerala & Anr. Criminal Appeal No. 2622 of 2024 [2024] 8 S. C. R. 1086 : 2024 INSC 625 Shajan Skaria v. The State of Kerala & Anr. (Criminal Appeal No. 2622 of 2024) 23 August 2024 [J. B. Pardiwala* and Manoj Misra, JJ. ] Issue for Consideration Whether Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 imposes an absolute bar on the grant of anticipatory bail in cases registered under the said Act; when can it be said that a prima facie case is made out in a given FIR/complaint; whether the averments in the FIR/complaint in question disclose commission of any offence under Section 3(1)(r) or under Section 3(1)(u) of the 1989 Act; whether mere knowledge of the caste identity of the complainant is sufficient to attract the offence under Section 3(1)(r) of the 1989 Act. Headnotes† Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - s.

18 - Bar on the grant of anticipatory bail, if absolute: Held: No - s. 18 does not impose an absolute bar on the power of the courts to examine whether a prima facie case attracting the provisions of the 1989 Act is made out or not - The bar created by ss. 18 and 18-A(i) shall not apply, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act and thus, the Court would not be precluded from granting pre-arrest bail to the accused persons - s. 18 bars anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC. [Paras 35, 41] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - "prima facie" - When can a prima facie case be said to be made out in a given FIR/complaint - Bar of s.

18, when not applicable: Held: Prima facie, a Latin term translates to "at first sight" or "based on first impression" - The expression "where no prima * Author Shajan Skaria v. The State of Kerala & Anr.

facie materials exist warranting arrest in a complaint or FIR" means "when based on first impression, no offence is made out as shown in the FIR or the complaint" - Thus, when the necessary ingredients to constitute the offence under the 1989 Act are not made out upon the prima facie reading of the complaint or FIR, no case can be said to exist prima facie and the bar of Section 18 would not apply and the courts would not be absolutely precluded from granting pre-arrest bail to the accused persons on its own merits - However, if the complaint has all the ingredients necessary for constituting the offence, then the remedy of anticipatory bail will not be available to the accused - Courts should conduct a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the 1989 Act to ensure that no unnecessary humiliation is caused to the accused - Words "having committed an offence under this Act" denote that it is only when the accusation in the complaint clearly points towards the commission of an offence under the 1989 Act that the bar of Section 18 would apply.

[Paras 48-52] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - s.

3(1)(r), 3(1)(u) - Appellant, Editor of an online news channel published a video on YouTube allegedly making derogatory statements and levelling various allegations against the complainant - Ingredients necessary to constitute offences under Sections 3(1)(r) and 3(1)(u), if prima face disclosed in the FIR - Offence under Sections 3(1)(r) and 3(1)(u), if made out: Held: No - All insults or intimidations to a member of the Scheduled Caste or Scheduled Tribe will not amount to an offence under the 1989 Act, unless such insult or intimidation is on the ground that the victim belongs to Scheduled Caste or Scheduled Tribe - Offence under Section 3(1)(r) is not established merely on the fact that the complainant is a member of a Scheduled Caste or a Scheduled Tribe, unless there is an intention to humiliate such a member for the reason that he belongs to such community - In the present case, there is nothing in the transcript of the video in question to indicate even prime facie that the allegations were made by the appellant only on account of the fact that the complainant belongs to a Scheduled Caste - Allegations made by the appellant show that he is at inimical terms with the complainant and his intention may be to malign or defame him but not on the ground 1088 or for the reason that the complainant belongs to a Scheduled Caste - At best, the appellant could be said to have prima facie committed the offence of defamation punishable under Section 500, IPC for which the complainant can prosecute the appellant - A prima facie conjoint reading of the transcript of the video and the complaint does not disclose that the actions of the appellant were impelled by the caste identity of the complainant for which he could invoke the provisions of the 1989 Act - Further, even the offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or enmity against the members of the scheduled castes or scheduled tribes as a group and not as individuals - There is nothing to even prima facie indicate that the appellant by publishing the video on YouTube promoted or attempted to promote feelings of enmity, hatred or ill-will against the members of Scheduled Castes or Scheduled Tribes - The video had nothing to do in general with the members of Scheduled Caste or the Scheduled Tribe - Appellant's target was just the complainant alone - Impugned order passed by the High Court declining to grant anticipatory bail to the appellant, set aside - If arrested, the appellant be released on bail on the terms and conditions, which the Investigating Officer may deem fit to impose.

[Paras 58, 74, 77, 89] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 s. 3(1)(r) - Mere knowledge of the caste identity of the complainant, if sufficient to attract the offence under: Held: No - Wherever the legislature intended that mere knowledge of the fact that the victim is a member of Scheduled Caste or Scheduled Tribe would be sufficient to constitute an offence under the 1989 Act, it has specified the same for instance, u/ss. 3(1)(w) (i), (ii), (2)(v), (va) whereas, the words in Section 3(1)(r) of the 1989 Act are altogether different. [Para 79] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - s.

3(1)(r) - "with intent to humiliate" - Meaning: Held: Section 3(1)(r) should be seen in the context of Section 7(1)(d) of the Protection of Civil Rights Act, 1955 wherein any insult against a member of a Scheduled Caste or Scheduled Tribe on the ground of "untouchability" was punishable with imprisonment for a maximum term of six months - However, Civil Rights Act could not adequately tackle caste-based offences and Shajan Skaria v. The State of Kerala & Anr.

the practice of "untouchability", leading to the enactment of the 1989 Act introducing more stringent provisions for combating such practices - The words "with an intent to humiliate a member of a Scheduled Caste or Scheduled Tribe" are thus, inextricably linked to the caste identity of the person who is subjected to intentional insult or intimidation and are inseparable from the underlying idea of "untouchability" which is sought to be remedied and punished by the 1989 Act - Not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation - It is only in those cases where the intentional insult or intimidation takes place either due to the prevailing practice of untouchability or to reinforce the historically entrenched ideas like the superiority of the "upper castes" over the "lower castes/untouchables", the notions of 'purity' and 'pollution', etc.

that it could be said to be an insult or intimidation as envisaged by the 1989 Act - The expression "intent to humiliate" in Section 3(1)(r) must be construed in the larger context in which the concept of humiliation of the marginalised groups has been understood by various scholars - It is not ordinary insult or intimidation which would amount to 'humiliation' that is sought to be made punishable under the 1989 Act - Humiliations based on different grounds and identities existing in the society targeted in different legislations like the Protection of Women from Domestic Violence Act, 2005, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, discussed.

[Paras 61, 72] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Cases where complaints/FIRs are based on YouTube videos, digital materials on social media platforms - Courts to look into said materials alongwith the complaint: Held: Courts should have the discretion to look into the materials based upon which the complaint has been registered, in addition to verifying the averments made in the complaint - If on a prima facie reading of the such materials referred to in the complaint and the complaint itself, the ingredients necessary for constituting the offence are not made out, then the bar of Section 18 would not be applicable. [Para 52] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Code of Criminal Procedure, 1973 - ss.

438, 482 - Constitution of India - Article 226 - Cases of malicious prosecution due to political/private vendetta: 1090 Held: Such cases can be considered only by the High Court in exercise of its inherent powers under Section 482 of the Code or in exercise of its extraordinary jurisdiction under Article 226 of the Constitution - Powers under Section 438 of the CrPC cannot be exercised once the contents of the complaint/FIR disclose a prima facie case. [Para 49] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - s. 18 - "arrest of any person" - Significance - Code of Criminal Procedure, 1973 - ss. 41, 60A: Held: s.

18 bars anticipatory bail only in cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC - An arrest cannot be made merely because it is lawful to do so - An arrest can be effected if there is a reasonable complaint, credible information or reasonable suspicion and the police officer has a reason to believe that such offence has been committed by the accused person and the arrest is necessary - The term 'arrest' appearing in the text of Section 18 is to be construed and understood in the larger context of the powers of police to effect an arrest and the restrictions imposed by the statute and the courts on the exercise of such power - Thus, the bar under Section 18 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the 1989 Act because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied.

[Paras 41, 43, 44, 46] Interpretation of Statutes - Penal Statutes - Strict interpretation - Principles of statutory interpretation: Held: A penal statute must receive strict construction - A principle of statutory interpretation embodies the policy of the law which is based on public policy - The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy - A principle of statutory interpretation is a principle of legal policy formulated as a guide to the legislative intention. [Para 82] Code of Criminal Procedure, 1973 - s. 438 - Evolution of, purpose - Discussed. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Words and phrases - "Humiliation" - Social context - Humiliations in different social structures - Works of various scholars - Discussed. Shajan Skaria v. The State of Kerala & Anr. Case Law Cited Hitesh Verma v.

State of Uttarakhand[2020] 9 SCR 593 : (2020) 10 SCC 710; Ramesh Chandra Vaishya v. State of Uttar Pradesh & Anr. [2023] 6 SCR 643 : (2023) SCC OnLine SC 668; Prathvi Raj Chauhan v. Union of India[2020] 2 SCR 727 : (2020) 4 SCC 727; Siddharam Satlingappa Mhetre v. State of Maharashtra and Others[2010] 15 SCR 201 : (2011) 1 SCC 694; State of Madhya Pradesh v. Ram Krishna Balothia [1995] 1 SCR 897 : (1995) 3 SCC 221; Satender Kumar Antil v. CBI [2022] 10 SCR 351 : (2022) 10 SCC 51; Arnesh Kumar v. State of Bihar and Another[2014] 8 SCR 128 : (2014) 8 SCC 273 - relied on. Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Another[2018] 4 SCR 877 : (2018) 6 SCC 454; Vilas Pandurang Pawar and Another v. State of Maharashtra and Others[2012] 8 SCR 270 : (2012) 8 SCC 795; Rahna Jalal v. State of Kerala [2020] 13 SCR 621 : (2021) 1 SCC 733; Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others [1994] Supp. 1 SCR 360 : (1994) 4 SCC 602 - referred to. Amir Chand v.

The Crown (1949) SCC OnLine Punj 20; XXX v. State of Kerala ILR 2022 4 Ker. 620; State of Kerala v. Hassan 2002 (2) KLT 505 - referred to. U. S. v. Wiltberger [5 L Ed 37 : 18 US (5 Wheat. ) 76 (1820)]; Tuck & Sons v. Priester (1887) 19 QBD 629 (CA); London and Country Commercial Properties Investments Ltd. v. Attorney General (1953) 1 WLR 312 : (1953) 1 All ER 436; Willis v. Thorp (1875) LR 10 QB 383 - referred to. Books and Periodicals Cited 41st Law Commission of India report dated September 24, 1969; Law Commission 48th Report (1972); Bereft of Being: The Humiliations of Untouchability, Humiliation: Claims and Context, Oxford University Press, First Edition (2009), pp. 95-107 by V. Geetha; Humiliation: Claims and Context, pp. 1-22, by Gopal Guru; Logic of Humiliation, Humiliation: Claims and Context, pp. 23-40 by Bhikhu Parekh; The Interpretation of Statutes (12th Edn. ) by Maxwell; Statute Law (7th Edn. at p. 530) by William F. Craies referred to.

List of Acts Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; Code of Criminal Procedure, 1973; Kerala Police Act; Constitution of India; Protection of Civil Rights Act, 1955. 1092 List of Keywords Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; Anticipatory bail; Pre-arrest bail; Bar on grant of anticipatory bail; Absolute bar; "prima facie"; Caste; Caste identity; Scheduled Caste or Scheduled Tribe; Member of the Scheduled Caste or Scheduled Tribe; Caste-based humiliation; Insults or intimidations; Malicious prosecution; Political/private vendetta; Arrest; Humiliation; Video published on YouTube; Transcript of video; "with intent to humiliate"; Intention to humiliate; Untouchability; Digital materials; Internet; Social media; Social media platforms. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2622 of 2024 From the Judgment and Order dated 30. 06.

2023 of the High Court of Kerala at Ernakulam in CRLA No. 906 of 2023 Appearances for Parties Sidharth Luthra, Gaurav Agrawal, Sr. Advs. , Abhay Anil Anturkar, Dhruv Tank, Aniruddha Awalgaonkar, Sarthak Mehrotra, Ayush Kaushik, Bhagwant Deshpande, Ms. Surbhi Kapoor, Advs. for the Appellant. P. V. Dinesh, Sr. Adv. , Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Ms. Anna Oommen, Ms. Urvashi Chauhan, Haris Beeran, Azhar Assees, Anand B. Menon, Radha Shyam Jena, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment J. B. Pardiwala, J. For the convenience of exposition, this judgment is divided into the following parts: - A. FACTUAL MATRIX...................................................................... 2* B. SUBMISSIONS ON BEHALF OF THE APPELLANT................ 10* * Ed. Note: Pagination as per the original Judgment. Shajan Skaria v. The State of Kerala & Anr. C. SUBMISSIONS ON BEHALF OF THE COMPLAINANT........... 13* D.

SUBMISSIONS ON BEHALF OF THE STATE.......................... 15* E. RELEVANT STATUTORY PROVISIONS................................... 16* F. ISSUES FOR DETERMINATION................................................ 20* G. ANALYSIS................................................................................... 21* i. Evolution of the concept of anticipatory bail................. 21* ii. Whether Section 18 of the Act, 1989 imposes an absolute bar on the grant of anticipatory bail in cases registered under the said Act?....................................... 27* a. Significance of the expression "arrest of any person" appearing in Section 18 of the Act, 1989 41* iii. When can it be said that a prima facie case is made out in a given FIR/complaint?.......................................... 47* iv. Whether the averments in the FIR/complaint in question disclose commission of any offence under Section 3(1)(r) of the Act, 1989?....................................... 51* a.

Meaning of the expression "intent to humiliate" appearing in Section 3(1)(r) of the Act, 1989........... 55* v. Whether any offence under Section 3(1)(u) of the Act, 1989 is prima facie made out in the FIR/complaint in question?............................................................................ 63* vi. Whether mere knowledge of the caste identity of the complainant is sufficient to attract the offence under Section 3(1)(r) of the Act, 1989?...................................... 64* H. CONCLUSION............................................................................ 69* 1. This appeal arises from the judgment and order dated 30. 06. 2023 passed by the High Court of Kerala at Ernakulam in Criminal Appeal No. 906 of 2023 filed by the appellant herein by which the High Court dismissed the appeal and thereby affirmed the order dated 16. 06.

2023 passed by the Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ernakulam Division declining to grant anticipatory bail to the appellant herein in connection with the First Information Report No. 899 of 2023 lodged by the complainant (Respondent No. 2) at the Elamakkara Police Station, District Ernakulam for the offence punishable under 1094 Sections 3(1)(r) and 3(1)(u) respectively of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the "Act, 1989"). A. FACTUAL MATRIX 2. On 24. 05. 2023, the appellant herein, in his capacity as the Editor of an online news channel named "Marunandan Malayali" published a video on YouTube, an online video sharing platform, levelling certain allegations against the complainant. The English translation of the video transcript is reproduced hereinbelow: - "Thumb Every one's afraid of P. V. Srinijan who grew up like a mafia don! Title Who made P. V. Srinijan a mafia don?

Content It was before a few days; the outside world knew about the news. The pride of Kerala, Kerala blasters was holding a selection trial which was for children under the age of 17. Children and parents had to wait for hours in front of the stadium at Panampally Nagar, Ernakulam which was owned by the Sports Council. The Stadium was closed, because P. V. Srinijan, District Sports Council President and MLA of Kunnathunad had alleged that Kerala blasters had a debt to clear with Kerala Sports Council. Media took on the news and people got furious over it. With hesitation the gates were finally opened. Yesterday evening Srinijan said sorry, he said that he knew nothing about the incident and he was being targeted. Former National Sports Star and present Sports Council President, Sharaf Ali came out with strong stand that; one, Kerala blasters didn't owe any money. Two, even if they owed money it's a matter for the sports council to deal with.

The most important fact is that there is not any due, because all the grounds belong to the State Sports Council, the District Sports Council doesn't have any relation. Sharaf Ali also said that P. V. Srinijan doesn't have a say in it. Shajan Skaria v. The State of Kerala & Anr. There are no arrears in the contract between Kerala Blasters and Kerala Sports Council. The Kerala State Sports Council has informed the Council in writing. The District Sports Council has no right to block. So why did Srinijan do the dirty work, who gave him the right to do so? Today evening another news came out. Including the sports hostel at Ernakulam, Panampalli Nagar and district sports development is being obstructed by Srinijan, the former Sports Council President and the National Sports Star Olympian Mercy Kutty said. The hostel at Panampally Nagar Sports Academy was one of the biggest sports hostels in Kerala.

With arrival of Srinijan and the present President the administration got completely changed. After that food was also not served at the hotel. Now vigilance investigation is going on. All the bills are fakes and the Sports Council's investigation is being piled up. Who should Kerala believe, Sharaf Ali, Mercy Kuttan or Srinijan? Sharaf Ali and Mercy Kuttan have shown their skills. They are national sports stars and are responsible and know how to act according to the situation at hand. They aren't political, so Kerala is more likely to believe these sports stars. Srinijan is lying, it's the latest example Srinijan's dramatic moves to slowly bring it under his control. My question isn't this, whenever a scandal, corruption or illegal activities take place we will find Srinijan name under it. Srinijan is infamous, still the CPM which made Srinijan a candidate should remember he wasn't even a communist. He was a leader of the youth congress.

The footage of the DYFI demonstration against Srinijan's relation to corruption and black money transactions are still available. First, CPM gives seat to him. Secondly, the people of the locality elect him. The MLA Post is the best example that the people of Kerala would allow any corrupt and black money dealer to become a leader. By being at the MLA position, Srinijan has only done damage to the state. We know that it is hard for Kerala to invite industries over, because here political parties will raise red flags against it. Therefore, even those industries in Kerala are leaving. There are only a few industries who are born here and pays taxes correctly to the State. One such industry is the Kitex run by Kitex Sabu. The one who made Kitex Sabu to move to Telangana from Kerala was Srinijan.

It was with Srinijan's consent that authorities used to pester Kitex and being a close friend to the CM Pinarayi Vijayan, Sabu had to come out to deal with the issue which made Sabu to leave the state and move his entire industry into Telangana. This is the situation of an entrepreneur who gave jobs to millions and Srinijan is solely responsible for it. To destroy the enterprise, he made the employees get arrested in false charges, killed a person. The authorities were haunting the enterprise. It is said as Kadambrayar waste water, but investigation hasn't been fruitful. But we know that the waste is being generated from the Bhramapuram Plant which was later burnt. Now the dust and ashes are going to the Kadambrayar Lake. No one has a complaint about it. He made a businessman to move out of the State who was providing jobs to millions. Srinijan has many other allegations against him. Srinijan's father-in-law was the Chief Justice of Supreme Court.

There are allegations that during those days he made crores illegally which were even raised by the CPM. Reason for Srinijan's sudden growth in wealth is due to corruption has been come to knowledge. But no one has the guts to start an investigation against him. Because he has high connections even in the judiciary. Even an audio clip came out that he had used his relations in judiciary to bring down the Kitex Industry. The first was the account of Srinijan's destruction of the sports sector in order to bring it under his jurisdiction. The second was the conspiracy to drive out a businessman out of the State. Viewers might remember the news I have given out about Prithviraj where it talked about the legal notice he had sent me. After receiving the legal notice, I have studied Shajan Skaria v. The State of Kerala & Anr. in depth about the film industry. From what I have learnt, there are some shocking facts related to it. I am just waiting for more proof.

Knowingly or unknowingly Srinijan has a presence in the film industry. It is not as we thought, we can see Srinijan at most film sites. Srinijan is the middle man in film industry for many. Which means he is the one who provides funds the most in the film industry. But he does this with legal security. We are gathering evidences and as we find it true we will publish it. Just focus on one thing. When Srinijan gave affidavit for participating in the competition he had to struggle to gather money because he had lots of black money. If he were to use it, he would get caught. So, he needed money in his account, so it is said that he borrowed money from some movie producers to show in record. I investigated some of the movie producers listed in the records. These producers borrow from others including Srinijan to make movies. In short, Srinijan acts as a young mafia don. Srinijan has presence in movie industry, sports sector and politics.

Srinijan will go to any extreme to eliminate those who dares to stand against him. Srinijan has high connections in judiciary. We shouldn't question judiciary. But there are some judicial officers who are corrupt and Srinijan aids them. But no one is bold enough to question him. CPM has given Srinijan more power. Even the opposition is afraid to stand up against him. Even the judiciary is turning a blind eye. Even Kitex Sabu who fought against this leaves at one point. Why is everyone afraid of him? Why is Kerala letting Srinijan to grow as a young mafia don? " 3.

The complainant who is a Member of the Kerala Legislative Assembly representing the Kunnathunad constituency, a seat reserved for the members of the Scheduled Castes, aggrieved by the publication of the aforesaid video, filed a written complaint before the ACP, Central Police Station, Ernakulam alleging inter alia that the video was published by the appellant in order to publicise, abuse and insult the 1098 complainant, who is a member of a Scheduled Caste. The contents of the complaint are reproduced as under: "I am the elected candidate for the Kunnathunad Assembly Constituency. Shri Sajan Skaria (Editor, News Reader and Publisher), Smt. Ann Mary George (Managing Editor & CEO), Shri Riju (Chief Editor) are using the online TV Channel named Marunadan Malayali (TC 17/3164 (11) Pattom Palace P. O. , Pattom Thiruvananthapuram, PIN 695004) & are continuously concocting and spreading false news against me through different social media, which have no basis of any kind.

Such false news are created and spread in order to ridicule and humiliate me, as a member of the Scheduled Caste Pulaya Community. Shajan Skaria and aforesaid persons used my photo and uploaded a defamatory video against me through the Youtube Channel named Marunadan Malayali on 24. 03. 2023 with the title reading 'PV Sreenijan, who rose so suddenly as a Mafia Don' and the same was shared through other social media as well. He raised a false allegation against me, who is the President of District Sports Council that there is a vigilance inquiry going on against me regarding running of a sports hostel. Besides he also alleged that I am trying to destroy the business ventures and I have falsely implicated and jailed the employees of Kitex. He also made a very serious allegations against me that I have murdered one person. Shajan Skaria and the aforesaid persons are making efforts through their channel and other social media to me as a murderer, without any basis.

That after the aforesaid video was uploaded, many people have shared the same on different social media platforms. On seeing this video, many persons from within the State of Kerala outside telephoned me and talked about this matter and raised doubts as to whether I am such a person or not. I doubt that the above actions of Shajan Skaria, Smt. Ann Mary George and Shri Riju is a part of their efforts to intentionally destroy the public faith that I enjoy in the society. Shajan Skaria v. The State of Kerala & Anr. The video published through the Online News Channel Marunadan Malayali on 24. 05. 2023 containing only false news and false averments, is knowingly made with the knowledge that I belong to Scheduled Caste Pulaya community and thus only to deliberately humiliate and ridicule me among the general public. Shajan Skaria, Smt.

Ann Mary George, Shri Riju who belongs to Christian Community, knowing it fully well that I belong to Scheduled Caste Pulaya Community, has uploaded and spread the video as aforesaid with the deliberate intention of humiliating, ridiculing me among the general public. The same is an offence and is punishable under Section 3(r) and 3(u) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. That I faced severe humiliation, loss and damages due to the aforesaid actions of Shajan Skaria, Smt. Ann Mary George and Shri Riju. Hence it is prayed that necessary legal action be taken against Shajan Skaria, Smt. Ann Mary George and Shri Riju against creating and spreading of false news through online channel and other social media under the Sections of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, sections of IT Act and Sections of IPC. Sd/xx P. V. Sreenijan Attaching the CD. " 4.

On the basis of the aforesaid complaint, FIR No. 899 of 2023 dated 09. 06. 2023 came to be registered against the appellant and two other persons, who are not parties to the present appeal, for offences punishable under Section 120(o) of the Kerala Police Act (the "KP Act") and Sections 3(1)(r) and 3(1)(u) respectively of the Act, 1989. 5. A plain reading of the FIR would indicate that the appellant is not a member of the Scheduled Caste and he is alleged to have published and disseminated a video containing disparaging content about the complainant with a view to publicise, abuse and insult the complainant. The complainant has alleged that the video has caused him a lot of humiliation, mental pain and agony. The complainant has also alleged that the video was uploaded by the appellant with 1100 the intention to humiliate and ridicule him among the general public with the knowledge that the complainant is a member of the Pulaya community, which is a Scheduled Caste. 6.

Apprehending his arrest, the appellant went before the Court of Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989, Ernakulam Division, praying for grant of anticipatory bail under Section 438 of the Criminal Procedure Code, 1973 (the "CrPC"). The Special Judge, vide order dated 16. 06. 2023, rejected the anticipatory bail application of the appellant, holding that the allegations in the FIR are prima facie sufficient to attract the offence under the Act, 1989 and the bar of Section 18 of the said Act prohibits the court from exercising powers under Section 438 of the CrPC. 7. The appellant challenged the order passed by the Special Judge before the High Court of Kerala, wherein the High Court, vide order dated 30. 06. 2023 ("impugned order"), affirmed the order passed by the Special Judge and refused to grant anticipatory bail to the appellant. Relevant observations made by the High Court in the impugned order are extracted hereinbelow: - "8.

Now the question arises whether the offence under Section 3(1)(r) will be attracted, in the absence of reference to the caste status of the second respondent in the news item. In my opinion that question cannot be decided, oblivious of the object behind the enactment and the reason for amending the Act in 2019. The Act was brought into force for preventing the commission of atrocities against members of the Scheduled Castes and Scheduled Tribes and to establish Special Courts for the trial of such offences and provide relief and rehabilitation to the victims of such offences. The Act was amended on finding that, despite various measures to improve the socio-economic conditions of the scheduled Castes and Scheduled Tribes, they still remained vulnerable.

Of course, as held by the Apex Court in Hitesh Verma and Ramesh Chandra Vaishya (supra), all insults or intimidation will not be an offence under the Act, unless such insult or intimidation is on account of the victim belonging to the Scheduled Castes or Scheduled Tribes. As observed earlier, materials on record do Shajan Skaria v. The State of Kerala & Anr. indicate that the video is intended to insult and humiliate the second respondent. At this stage, the court can only go by the allegations in the complaint and the attendant circumstances. The allegation is specific to the effect that the appellant has been insulting and humiliating the second respondent only for the reason that he belongs to the Scheduled Caste. The attendant circumstances are the wanton nature of the allegations and the repeated news items published against the second respondent. Going by the wording of Section 3(1)(r), reference to the caste name of the victim is not necessary for attracting the offence.

This is clear from the distinction between the wording of Section 3(1) (r) and 3(1)(s). As such, it is not possible to hold that there are no prima facie materials to attract the offence under Section 3(1)(r). In view of the finding on Section 3(1)(r), I am not venturing to decide whether the offence under Section 3(1)(u) is attracted or not. For the aforementioned reasons, the impugned order of the Special Court is upheld. In the result, the Criminal Appeal is dismissed. " (Emphasis supplied) 8. In view of the aforesaid, the appellant is before this Court with the present appeal. B. SUBMISSIONS ON BEHALF OF THE APPELLANT 9. Mr. Sidharth Luthra and Mr. Gaurav Agrawal, the learned Senior Counsel appearing for the appellant made the following submissions: a. The appellant had no intention to insult the complainant and merely stated the facts without mentioning the name of the complainant's caste or community.

The appellant being a journalist, had published facts gathered through research and sources. b. The High Court failed to take into consideration that the complainant has not alleged that the appellant intentionally insulted or intimidated him with an intent to humiliate him as a member of the Scheduled Caste or Scheduled Tribe community. A perusal of the telecast makes it clear that the appellant did 1102 not refer to the caste or community of the complainant. Even if the statements made in the video are said to be defamatory, the same by itself is not sufficient to attract an offence under the Act, 1989. c. The complainant has not alleged that the appellant by words, either written or spoken, had promoted or attempted to promote feelings of enmity, hatred or ill-will against the members of the Scheduled Castes or Scheduled Tribes. Thus, no offence under Section 3(1)(u) of the Act 1989 is made out against the appellant. d.

The High Court failed to consider the judgments of the co-ordinate benches in XXX v. State of Kerala reported in ILR 2022 4 Ker. 620and State of Kerala v. Hassan reported in2002 (2) KLT 505,wherein it has been reiterated that the offence under Section 3(1)(u) of the Act, 1989 would be attracted only if the feelings of enmity, hatred or ill-will are promoted or attempted to be promoted against members of the Scheduled Castes or Scheduled Tribes as a class and not on criticizing an individual member. e. The decision of this Court in Hitesh Verma v. State of Uttarakhand reported in (2020) 10 SCC 710 held that an offence under Section 3(1)(r) is not established merely on the fact that the victim is a member of the Scheduled Caste, unless there is an intention to humiliate a member of the Scheduled Caste or Schedule Tribe for the reason that the victim belongs to such caste. f. The decision of this Court in Ramesh Chandra Vaishya v. State of Uttar Pradesh & Anr.

reported in 2023 SCC OnLine SC 668 held that every insult or intimidation would not amount to an offence under Section 3(1)(x) of the Act, 1989 unless, such insult or intimidation is targeted at the victim because he is a member of a particular Scheduled Caste or Scheduled Tribe. g. The High Court failed to consider the decision of this Court in Prathvi Raj Chauhan v. Union of Indiareported in(2020) 4 SCC 727 wherein it was held that if the complaint does not make out a prima facie case for applicability of the provisions of the Act, 1989 then the bar created by Section 18 and Section 18A(i) would not apply. Shajan Skaria v. The State of Kerala & Anr. C. SUBMISSIONS ON BEHALF OF THE COMPLAINANT 10. Mr. Haris Beeran, the learned counsel appearing on behalf of the complainant/Respondent No. 2 made the following submissions: a.

The appellant is a habitual offender in creating controversies by intentionally propagating false and defamatory campaigns against respectable members of society with the sole purpose of attracting subscriptions to his web platform. b. The Act, 1989 was enacted with the object to prevent the commission of offences and atrocities against the members of the Scheduled Caste and Scheduled Tribes. Section 3(1)(r) of the Act, 1989 underscores the crucial aspect of intentional insult and intimidation with the specific intent to humiliate a member of the Scheduled Caste or Scheduled Tribe. The primary aim of the Act, 1989 is to ameliorate the socio-economic conditions of the community as they have been historically deprived of numerous civil rights. Therefore, an offence under the Act, 1989 is established when a member of these vulnerable sections of society is subjected to humiliation and harassment. c.

The appellant had wilfully disseminated the news against the complainant, containing false assertions, deliberately aimed at portraying the complainant in poor light in society on the ground that he was a member of a Scheduled Caste. d. The false and derogatory remarks were spread with full awareness of the complainant's status as a person belonging to the Scheduled Caste, having been elected as an MLA in 2021 from a seat reserved for members of the Scheduled Caste community. The appellant's deliberate actions of insult and humiliation undeniably constitute the offence under Section 3(1)(r) of the Act, 1989. e. The appellant himself has stated that the complainant is an MLA representing the Kunnathunad Constituency. This makes his intentions clear as it is common knowledge that the said constituency is reserved for members belonging to the Scheduled Castes. f. The complainant has been singled out by the appellant for the sole reason that he belongs to a Scheduled Caste.

The Appellant 1104 has made unsubstantiated allegations and aspersions against the complainant and has gone to the extent of calling him a 'murderer' and 'mafia don'. g. The appellant has not spared even the former Chief Justice of India who happens to be the father-in-law of the complainant and a person belonging to a Scheduled Caste. The appellant has intentionally humiliated the father-in-law of the complainant, assassinating his character as he also belongs to the Scheduled Caste community. The appellant has not even spared the judiciary by levelling defamatory allegations. h. The act of the appellant, as alleged, constitutes an offence under Sections 3(1)(r) and 3(1)(u) respectively of the Act, 1989 and anticipatory bail cannot be granted in view of the bar under Section 18 of the Act, 1989. i. Despite many notices issued by the investigating officers, the appellant has failed to turn up for the purpose of interrogation. j.

The appellant could be said to have exhibited a pattern of wilful non-compliance of the court orders, thereby showcasing a flagrant disregard for the courts. In a different case where anticipatory bail was granted to him, the appellant subsequently stopped attending the court proceedings and failed to cooperate in the investigation. The High Court took note of such behaviour and warned the appellant that his anticipatory bail could be revoked. Therefore, there is a substantial risk in granting anticipatory bail to the appellant. D. SUBMISSIONS ON BEHALF OF THE STATE 11. Mr. P. V. Dinesh, the learned Senior Counsel appearing on behalf of the State (Respondent No. 1 herein) made the following submissions: a. The complainant is an MLA from Kunnathunad constituency which is reserved for members of the Scheduled Caste and the telecast of the video was with a clear knowledge that the complainant belongs to a Scheduled Caste community. b.

To constitute an offence under Section 3(1)(r) of the Act, 1989, it is not necessary to mention the caste of the person. The video was uploaded with the intention to cause insult and humiliate the complainant and thereby promote feelings of hatred and ill will. Shajan Skaria v. The State of Kerala & Anr. c. The appellant has filed a petition before the Kerala High Court to quash the FIR and the same is currently pending. E. RELEVANT STATUTORY PROVISIONS 12. Before adverting to the rival submissions canvassed on either side, it is necessary for us to look into few relevant provisions of the Act, 1989, the CrPC and the KP Act: Section 3 of the Act 1989: Punishments for offences of atrocities. -- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-- ... .... .... (r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; ...

(u) by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes; Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine Section 18 of the Act 1989: Section 438 of the Code not to apply to persons committing an offence under the Act. -- Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. Section 438 of the CrPC: Direction for grant of bail to person apprehending arrest.

-- 1106 [(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and.

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court, (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Shajan Skaria v. The State of Kerala & Anr. Court considers such presence necessary in the interest of justice.

] (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1). [(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860). ] Section 120 of the KP Act: Penalty for causing nuisance and violation of public order. -- 1108 If any person,-- ...

(o) causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger ; ... shall, on conviction, be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or with both. F. ISSUES FOR DETERMINATION 13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following issues fall for our consideration: a. Whether Section 18 of the Act, 1989 imposes an absolute bar on the grant of anticipatory bail in cases registered under the said Act? b. When can it be said that a prima facie case is made out in a given FIR/complaint? c. Whether the averments in the FIR/complaint in question disclose commission of any offence under Section 3(1)(r) of the Act, 1989? d.

Whether any offence under Section 3(1)(u) of the Act, 1989 could be said to have been prima facie made out in the FIR/ complaint in question? e. Whether mere knowledge of the caste identity of the complainant is sufficient to attract the offence under Section 3(1)(r) of the Act, 1989? G. ANALYSIS i. Evolution of the concept of anticipatory bail 14. The Code of Criminal Procedure, 1898 did not contain any specific provision analogous to Section 438 of the CrPC. In Amir Chand v. The Crown, reported in 1949 SCC OnLine Punj 20, the question before the Full Bench was whether Section 498 of the Criminal Procedure Shajan Skaria v. The State of Kerala & Anr. Code, 1898 empowered the High Court or the Sessions Court to grant bail to a person who had not been placed under restraint by arrest or otherwise. The Full Bench answered the reference as under: "... The very notion of bail presupposes some form of previous restraint.

Therefore, bail cannot be granted to a person who has not been arrested and for whose arrest no warrants have been issued. Section 498, Criminal Procedure Code, does not permit the High Court or the Court of Session to grant bail to anyone whose case is not covered by sections 496 and 497, Criminal Procedure Code. It follows, therefore, that bail can only be allowed to a person who has been arrested or detained without warrant or appears or is brought before a Court. Such person must be liable to arrest and must surrender himself before the question of bail can be considered. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be allowed if he appears in Court and surrenders himself. No bail can be allowed to a person at liberty for whose arrest no warrants have been issued. The petitioners in the present case are, therefore, not entitled to bail. The question referred to the Full Bench is, therefore, answered in the negative.

" (Emphasis supplied) 15. Under the 1898 Code, the concept of anticipatory or pre-arrest bail was absent and the need for introduction of a new provision in the CrPC empowering the High Court and Court of Session to grant anticipatory bail was pointed out by the 41st Law Commission of India in its report dated September 24, 1969. The report pointed out the necessity of introducing a provision in the CrPC enabling the High Court and the Court of Session to grant anticipatory bail. It observed in para 39. 9 of its report (Volume I): Anticipatory bail "39. 9 The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code.

1110 The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting detained in jail for some days. In recent times, the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail" We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

In order to settle the details of this suggestion, the following draft of a new section is placed for consideration: '497-A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That court may, in its discretion, direct that in the event of his arrest, he shall be released on bail. (2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under Section 204(1), either issue summons or a bailable warrant as indicated in the direction of the court under sub-section (1).

(3) If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail. ' We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory Shajan Skaria v. The State of Kerala & Anr. bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself.

Superior courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused. " (Emphasis supplied) 16. The suggestion made by the Law Commission was, in principle, accepted by the Central Government which introduced clause 447 in the Draft Bill of the Code of Criminal Procedure, 1970 with a view to conferring express power on the High Court and the Court of Session to grant anticipatory bail. The said clause of the draft bill was enacted with certain modifications and became Section 438 of the CrPC. 17. The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the aforesaid clause: "The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission.

We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith. " (Emphasis supplied) 1112 18.

It is apparent on a plain reading of the Statement of Objects and Reasons accompanying the Bill for introducing Section 438 in the CrPC that the legislature felt that it was imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases. The purpose behind incorporating Section 438 in CrPC was to recognise the importance of personal liberty and freedom in a free and democratic country. A careful reading of this section reveals that the legislature was keen to ensure respect for the personal liberty by pressing in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. [See: Siddharam Satlingappa Mhetre v. State of Maharashtra and Others reported in (2011) 1 SCC 694] 19.

Discussing in the context of anticipatory bail, this Court, in Siddharam (supra), discussed the relevance and importance of personal liberty as under: "36. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilised existence. 37. Origin of "liberty" can be traced in the ancient Greek civilisation. The Greeks distinguished between the liberty of the group and the liberty of the individual.

In 431 BC, an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realise itself as fully as possible through the self-realisation of the individual by way of human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the State was a means to fulfil certain fundamental needs of human nature and was a means for development of individuals› personality in association of fellow citizens so it was natural and necessary to man. Plato Shajan Skaria v. The State of Kerala & Anr. found his "republic" as the best source for the achievement of the self-realisation of the people. xxx xxx xxx 43. A distinguished former Attorney General for India, M. C.

Setalvad in his treatise War and Civil Liberties observed that the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism. According to this doctrine, the highest development of the individual and the enrichment of his personality are the true function and end of the State. It is only when the individual has reached the highest state of perfection and evolved what is best in him that society and the State can reach their goal of perfection.

In brief, according to this doctrine, the State exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his growth and perfection. The State exists for the benefit of the individual. xxx xxx xxx 49. An eminent English Judge, Lord Alfred Denning observed: "By personal freedom I mean freedom of every law-abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person.... It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live. " 50. An eminent former Judge of this Court, Justice H. R. Khanna in a speech as published in 2 IJIL, Vol. 18 (1978), p. 133 observed that 1114 "...

Liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body. "" ii. Whether Section 18 of the Act, 1989 imposes an absolute bar on the grant of anticipatory bail in cases registered under the said Act? 20. The Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989 is extracted hereinbelow: "Statement of Objects and Reasons. 1. Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property.

Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc. they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests.

Of late, there has been an increase in the disturbing trend of commission of certain Shajan Skaria v. The State of Kerala & Anr. atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Penal Code, 1860 have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary. 3. The term 'atrocity' has not been defined so far. It is considered necessary that not only the term 'atrocity' should be defined but stringent measures should be introduced to provide for higher punishments for committing such atrocities.

It is also proposed to enjoining on the States and the Union territories to take specific preventive and punitive measures to protect the Scheduled Castes and the Scheduled Tribes from being victimised and where atrocities are committed, to provide adequate relief and assistance to· rehabilitate them. " 21. It is evident from the aforesaid that the purpose of the Act, 1989 is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes, to provide for establishment of special courts for the trial of such offences and to make provisions for the relief and rehabilitation of the victims of such offences. 22. The Act, 1989 could be said to have been enacted to improve the social and economic conditions of the vulnerable sections of the society as they have been historically subjected to various indignities, humiliations and harassment besides deprivation of life and property on account of their caste identity.

The legislation, thus, intends to punish the acts committed against the vulnerable sections of the society for the reason that they belong to a particular community. 23. Section 18 of the Act, 1989 which makes the remedy of anticipatory bail unavailable in cases falling under the Act, 1989 reads thus: "18. Section 438 of the Code not to apply to persons committing an offence under the Act. -- 1116 Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. " 24. It is manifest from a plain reading of Section 18 referred to above that it bars the applicability of Section 438 of the CrPC in respect of offences under the Act, 1989.

The legislature in its wisdom thought fit that the benefit of anticipatory bail should not be made available to the accused in respect of offences under the Act, 1989, having regard to the prevailing social conditions which give rise to such offences and the apprehension that the perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of such offences, if they are allowed to avail the benefit of anticipatory bail. 25. The constitutional validity of Section 18 of the Act, 1989 fell for the consideration of this Court in State of Madhya Pradesh v. Ram Krishna Balothia reported in (1995) 3 SCC 221. The challenge essentially was on the following two grounds: a. Section 18 is violative of Article 14 of the Constitution as the benefit of Section 438 of the CrPC is available to an accused for offences under the Indian Penal Code, 1860 ("IPC") but the same is not available for offences under the Act, 1989. b.

Section 18 is also violative of Article 21 of the Constitution which protects the life and personal liberty of every person in this country. 26. The Respondents in the aforesaid case had filed writ petitions before the High Court of Madhya Pradesh, challenging the constitutional validity of certain provisions of the Act, 1989. Although the High Court negatived some part of the challenge, yet it held that Section 18 of the Act, 1989 was unconstitutional as it was violative of Articles 14 and 21 respectively of the Constitution of India. 27. The aforesaid decision of the High Court was challenged before this Court which allowed the appeals and held that Section 18 of the Act, 1989 cannot be considered as violative of Articles 14 and 21 respectively of the Constitution. It was held that the offences enumerated under the Act, 1989 fall into a separate and special category.

The Court considered Article 17 of the Constitution which expressly deals with abolition of "untouchability" and forbids its practice in any form and took the view that the offences enumerated under Shajan Skaria v. The State of Kerala & Anr. Section 3(1) of the Act, 1989 arise out of the practice of "untouchability". Having regard to the same, it was held that Section 18 of the Act, 1989 does not violate Article 14 of the Constitution in any manner. 28. On the aspect of Article 21 of the Constitution, it was held by this Court that although Article 21 protects the life and personal liberty of every person in this country, which also includes the right to live with dignity, yet it cannot be said that Section 438 of the CrPC is an integral part of Article 21. The Court took notice of the fact that there was no provision similar to Section 438 in the Criminal Procedure Code, 1898 and ultimately concluded that anticipatory bail is not granted as a matter of right.

It is essentially a statutory right conferred long after the coming into force of the Constitution. Therefore, it was observed, that the non-application of Section 438 to a certain distinct category of offences cannot be considered as violative of Article 21 of the Constitution. Relevant observations made by the Court are reproduced hereinbelow: "6. It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of 'untouchability' and forbids its practice in any form. It also provides that enforcement of any disability arising out of 'untouchability' shall be an offence punishable in accordance with law.

The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of 'untouchability'. It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18 which is before us. The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the said Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In 1118 this connection we may refer to the Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in Parliament. [....

] The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences. 7. We have next to examine whether Section 18 of the said Act violates, in any manner, Article 21 of the Constitution which protects the life and personal liberty of every person in this country. Article 21 enshrines the right to live with human dignity, a precious right to which every human being is entitled; those who have been, for centuries, denied this right, more so.

We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. [... ] Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21. xxx xxx xxx 9. Of course, the offences enumerated under the present case are very different from those under the Terrorists Shajan Skaria v. The State of Kerala & Anr. and Disruptive Activities (Prevention) Act, 1987.

However, looking to the historical background relating to the practice of 'untouchability' and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21. 10. It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is not available for even "minor offences" under the said Act. This grievance also cannot be justified.

The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code. xxx xxx xxx 12. In the premises, Section 18 of the said Act cannot be considered as violative of Articles 14 and 21 of the Constitution. " (Emphasis supplied) 29. However, over a period of time, the courts across the country started taking notice of the fact that the complaints were being lodged under the Act, 1989 out of personal and political vendetta.

The courts took notice of the fact that the provisions of the Act, 1989 were being misused to some extent for purposes not intended by the legislation. To 1120 overcome the bar of Section 18 of the Act, 1989, the persons against whom such complaints were being lodged started invoking the writ jurisdiction of the High Court under Article 226 of the Constitution. 30. Taking note of the aforesaid, this Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Another reported in (2018) 6 SCC 454, while quashing the proceedings instituted against the appellant therein under the provisions of the Act, 1989 thought fit to issue the following directions: "79. 1. Proceedings in the present case are clear abuse of process of court and are quashed. 79. 2. 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. 79. 3.

In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention. 79. 4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. 79. 5. Any violation of Directions 79. 3 and 79. 4 will be actionable by way of disciplinary action as well as contempt. 79. 6. The above directions are prospective. " 31.

The Parliament took notice of the aforesaid directions and thought fit to carry out certain amendments in the Act, 1989 vide the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018. The relevant portion is extracted hereinbelow: Shajan Skaria v. The State of Kerala & Anr. "2. After section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the following section shall be inserted, namely:-- "18A. (1) For the purposes of this Act,-- (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court. ". 32. The provisions inserted by way of carving out Section 18-A of the Act, 1989 referred to above were made the subject matter of challenge in Prathvi Raj Chauhan(supra). In the said case, it was argued before a three-Judge Bench of this Court that Section 18-A inserted by way of amendment was only with a view to nullify the judgment of this Court in Subhash Kashinath(supra) referred to above. This Court noted that it was not in dispute that the bar of Section 18-A in the Act, 1989 had been enacted because of the judgment passed by this Court in Subhash Kashinath(supra) more particularly in view of the directions contained in paragraphs 79. 3 and 79. 5 therein. The court also noted that the review petitions filed by the Union of India in Subhash Kashinath(supra) were allowed and the directions contained in paragraphs 79. 3 to 79.

5 referred to above were ordered to be recalled. 33. In such circumstances, this Court observed that the examination of the Constitutional validity of Section 18-A brought by way of the amendment had been rendered academic. However, the Bench proceeded to look into the matter. Justice Arun Mishra, speaking for himself and Justice Vineet Saran held as under: "10. Section 18-A(i) was inserted owing to the decision of this Court in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454 : (2018) 1122 3 SCC (Cri) 124], which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl. ) No. 228 of 2018 decided on 1-10-2019 [Union of India v. State of Maharashtra (2020) 4 SCC 761] .

Thus, the provisions which have been made in Section 18-A are rendered of academic use as they were enacted to take care of mandate issued in Subhash Kashinath [Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124] which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail. 11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions. 12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions.

The legal position is clear, and no argument to the contrary has been raised. 13. The challenge to the provisions has been rendered academic. In view of the aforesaid clarifications, we dispose of the petitions. " 34. Justice S. Ravindra Bhat, while concurring with the judgment rendered by Justice Mishra, assigned his own reasons which are reproduced hereinbelow: "32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. Shajan Skaria v. The State of Kerala & Anr. 33. I would only add a caveat with the observation and emphasise that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests : i. e.

that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament. " 35.

Thus, the decision in Prathvi Raj Chauhan (supra) makes it abundantly clear that even while upholding the validity of Section 18-A of the Act, 1989, this Court observed that if the complaint does not make out a prima facie case for applicability of the provisions of the Act, 1989 then the bar created by Sections 18 and 18-A(i) shall not apply and thus the court would not be precluded from granting pre-arrest bail to the accused persons. 36.

Justice Ravindra Bhat, in his concurring judgment, observed that while considering any application seeking pre-arrest bail in connection with an offence alleged to have been committed under the provisions of the Act, 1989, the courts should balance two interests - On one hand they should ensure that the power is not exercised akin to the jurisdiction under Section 438 of the CrPC while on the other hand they should ensure that the power is used sparingly in exceptional cases where no prima facie offence is made out as shown in the FIR or the complaint. It was observed that in cases where no prima facie materials exist in a complaint which would warrant the arrest of the accused, the court would have the inherent power to direct a pre-arrest bail. 37. The applicability of Section 438 of the CrPC to cases registered under the Act, 1989 was also dealt with by a two-Judge Bench of this Court in Vilas Pandurang Pawar and Another v.

State of Maharashtra and Othersreported in (2012) 8 SCC 795. The specific issue framed and answered by this Court was whether an accused charged with various offences under the IPC along with offences 1124 under the Act, 1989 would be entitled for an anticipatory bail under Section 438 of CrPC. 38. It was observed by this Court that although Section 18 of the Act, 1989 creates a ba