If Complaint Doesn’t Make Prima Facie Case For Applying SC/ST Act, Court Is Not Precluded From Granting Anticipatory Bail To Accused: Supreme Court

The Supreme Court while granting anticipatory bail to Shajan Skariah, held that if a complaint does not make out a prima facie case for the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e., SC/ST Act, the Court would not be precluded from granting anticipatory bail to the accused.

The Court held thus in a criminal appeal filed by Shajan against the judgment of the Kerala High Court by which it dismissed his appeal and affirmed the order of the Special Judge declining anticipatory bail to him.

The two-Judge Bench of Justice J.B. Pardiwala and Justice Manoj Misra observed, “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.”

The Bench clarified that the SC/ST Act, 1989 does not impose an absolute fetter on the power of the courts to examine whether a prima facie case attracting the provisions of the said Act is made out or not.

Senior Advocates Sidharth Luthra and Gaurav Agrawal appeared for the appellant while Senior Advocate P.V. Dinesh and Advocate Haris Beeran appeared for the respondents.

In this case, in May 2023, the appellant i.e., Shajan Skariah 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 complainant who is a Member of the Kerala Legislative Assembly (MLA) representing the Kunnathunad constituency, a seat reserved for the members of the Scheduled Castes, aggrieved by the publication of the said video, filed a written complaint before the ACP, Central Police Station, Ernakulam alleging that the video was published by the appellant in order to publicise, abuse and insult him being SC member.

Resultantly, an FIR was registered against the appellant and two other persons for offences punishable under Section 120(o) of the Kerala Police Act (KP Act) and Sections 3(1)(r) and 3(1)(u) of the SC/ST Act. The complainant had alleged that the video caused him a lot of humiliation, mental pain and agony. He also alleged that the video was uploaded by the appellant with the intention to humiliate and ridicule him among the general public with the knowledge that he is a member of the Pulaya community, which is a Scheduled Caste. Apprehending his arrest, the appellant approached the Special Judge but he was denied anticipatory bail. Thereafter, he went before the High Court but it affirmed the impugned order. Hence, he filed an appeal before the Apex Court.

The Court after hearing the contentions of the counsel noted, “As discussed, Section 18 stipulates that in any case which involves the arrest of any person on the accusation of having committed an offence under the Act, 1989, the benefit of anticipatory bail under Section 438 of CrPC would not be available to the accused. We have deliberated on the significance of the expression “arrest of any person” appearing in the text of Section 18 of the Act, 1989 and are of the view that Section 18 bars the remedy of 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.”

The Court said that 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. It added that the words ‘complaint’, ‘information’ and ‘suspicion’ are qualified by the adjectives ‘reasonable’, ‘credible’ and ‘reasonable’ respectively and similarly, the police officer is required to have a ‘reason to believe’ based on the information he has received that the accused person has committed the alleged offence.

“It is settled law that arrest cannot be made merely because it is lawful to do so. The exercise of the power to arrest has been qualified by a twofold requirement – first, of having a reasonable belief that the accused person has committed the offence and secondly, that there is a need to arrest the accused person. This Court in Satender Kumar Antil v. CBI reported (2022) held that non-observance of the requirements stipulated under Sections 41 and 41A of CrPC respectively before effecting arrest would entitle the accused to be enlarged on bail”, it further noted.

The Court emphasised that the bar under Section 18 of the Act, 1989 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the Act and 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.

“As a sequitur, if the necessary ingredients to constitute the offence under the Act, 1989 are not disclosed on the prima facie reading of the allegations levelled in the complaint or FIR, then in such circumstances, as per the consistent exposition by various decisions of this Court, 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”, it also observed.

The Court enunciated that the duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused and the courts should not shy away from conducting 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 SC/ST Act.

“It is expected of the courts to apply their judicial mind to determine whether the allegations levelled in the complaint, on a plain reading, satisfy the ingredients constituting the alleged offence. Such application of judicial mind should be independent and without being influenced by the provisions figuring in the complaint/FIR. The aforesaid role of the courts assumes even more importance when a prima facie finding on the case has the effect of precluding the accused person from seeking anticipatory bail, which is an important concomitant of personal liberty of the individual”, it remarked.

The Court said that this case is of a unique nature and one that falls in a separate category and with the advent of internet and social media, such cases are likely to come up more frequently.

“We may only say that in cases like the one in hand, the 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 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 and it would be open to the courts to consider the plea for the grant pre-arrest bail on its own merits”, it added.

The Court said that the appellant via YouTube video did not promote feelings of enmity, hatred, or ill-will against SC/ST members as his target was just the complainant alone. It elucidated that 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 SC/ST as a group and not as individuals.

“A penal statute must receive strict construction. A principle of statutory interpretation embodies the policy of the law, which is in turn 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 can, therefore, be described as a principle of legal policy formulated as a guide to the legislative intention”, it concluded.

Accordingly, the Apex Court allowed the appeal, set aside the impugned order, and granted anticipatory bail to Shajan.

Cause Title- Shajan Skaria v. The State of Kerala & Anr. (Neutral Citation: 2024 INSC 625)

Appearance:

Appellant: Senior Advocates Sidharth Luthra, Gaurav Agrawal, AOR Surbhi Kapoor, Advocates Abhay Anil Anturkar, Dhruv Tank, Aniruddha Awalgaonkar, Sarthak Mehrotra, Ayush Kaushik, and Bhagwant Deshpande.

Respondents: Senior Advocate P.V. Dinesh, AORs Nishe Rajen Shonker, Radha Shyam Jena, Advocates Haris Beeran, Anu K Joy, Alim Anvar, Ajith Anto Perumbully, Anna Oommen, Urvashi Chauhan, Azhar Assees, and Anand B. Menon.

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