SHAJAN SKARIA versus THE STATE OF KERALA & ANR.

Summary

The Court granted anticipatory bail to the editor of an online news channel who was booked under Sections 3(1)(r) and 3(1)(u) of the SC/ST (Prevention of Atrocities) Act, 1989 for a YouTube video making allegations against an MLA belonging to a Scheduled Caste. The bar on anticipatory bail in Section 18 applies only where the complaint, and here the video it relies on, prima facie discloses all the ingredients of an offence under the Act. Insult is caste-based humiliation under Section 3(1)(r) only where it is directed at the victim because of caste, and mere knowledge of the victim's caste is not enough. The video, at most defamatory, targeted an individual, not Scheduled Castes as a group.

Issues

1. Whether Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989 imposes an absolute bar on anticipatory bail in cases registered under the Act.
2. When a prima facie case can be said to be made out in an FIR or complaint for the purpose of the Section 18 bar, and whether the court may examine the material on which the complaint is based.
3. Whether the allegations in the FIR disclosed an offence under Section 3(1)(r) of the Act, including what 'intent to humiliate' means.
4. Whether an offence under Section 3(1)(u) of the Act was prima facie made out.
5. Whether the accused's mere knowledge of the complainant's caste is enough to attract Section 3(1)(r).

Provisions considered

• Section 18, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Excludes Section 438 CrPC in any case involving the arrest of a person accused of an offence under the Act. Following Prathvi Raj Chauhan, Vilas Pandurang Pawar and Rahna Jalal, and reading 'arrest' with Sections 41 and 60A CrPC, the Court held the bar applies only where the complaint prima facie discloses all the ingredients of an offence under the Act. (¶¶ 23, 24, 35, 38, 41, 46, 48, 49, 51, 87)
• Section 18A, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Noted as inserted in 2018 after Subhash Kashinath Mahajan. As explained in Prathvi Raj Chauhan, the bar in Sections 18 and 18A does not apply where the complaint does not make out a prima facie case under the Act. (¶¶ 31, 32, 33, 35)
• Section 3(1)(r), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Ingredients: an accused who is not SC/ST intentionally insults or intimidates an SC/ST member, with intent to humiliate, in a place within public view. 'Intent to humiliate' is tied to caste identity and the idea of untouchability; nothing in the video suggested the allegations were made because the complainant belonged to a Scheduled Caste. (¶¶ 54, 55, 56, 57, 58, 60, 61, 70, 72, 74, 80, 81)
• Section 3(1)(u), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Requires promoting, or attempting to promote, enmity, hatred or ill-will against members of the Scheduled Castes or Scheduled Tribes as a group. The video targeted only the complainant as an individual, so the offence was not prima facie made out. (¶¶ 75, 76, 77)
• Sections 3(1)(w) and 3(2)(v), 3(2)(va), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Cited to show that where Parliament intended knowledge of the victim's SC/ST status to be enough, it said so expressly; Section 3(1)(r) contains no such wording. (¶¶ 79, 80)
• Section 438, Code of Criminal Procedure, 1973Traced the origin of anticipatory bail as a protection of personal liberty. Its exclusion by Section 18 is to be strictly construed, and once the Section 18 bar is held inapplicable the plea for pre-arrest bail is considered on its merits. (¶¶ 14, 15, 16, 17, 18, 49, 52)
• Sections 41 and 60A, Code of Criminal Procedure, 1973A valid arrest requires a reasonable complaint, credible information or reasonable suspicion, reason to believe, and necessity. Reading these into Section 18, the bar operates only where prima facie material of an offence under the Act exists, since only then could a lawful arrest be made. (¶¶ 41, 42, 43, 44, 45, 46)
• Section 7(1)(d), Protection of Civil Rights Act, 1955Insulting a Scheduled Caste member on the ground of untouchability was punishable under this provision. Section 3(1)(r) is its more stringent successor and must be read with the same underlying idea of untouchability. (¶¶ 71, 72)

Held

• Section 18 does not impose an absolute bar. Anticipatory bail is excluded only where the FIR or complaint, read at face value, prima facie discloses all the ingredients of an offence under the Act; a bare accusation lacking those ingredients does not attract the bar. This is the only test, and courts must apply their judicial mind independently of the sections named in the FIR. (¶¶ 41, 46, 47, 48, 49, 50, 51)
• A plea that an FIR which does disclose an offence under the Act is false because of political or private vendetta cannot be raised under Section 438. It can be considered only by the High Court under Section 482 CrPC or Article 226. (¶ 49)
• Where the complaint rests entirely on material in the public domain, such as a YouTube video, the court may examine that material together with the complaint when deciding whether a prima facie case under the Act is made out. (¶ 52)
• Not every insult or intimidation of an SC/ST member is an offence under Section 3(1)(r); it must be on account of the victim's caste. 'Intent to humiliate' denotes caste-based humiliation linked to untouchability or notions of caste superiority, purity and pollution, and the provision must be read with Section 7(1)(d) of the Protection of Civil Rights Act, following Hitesh Verma and Ramesh Chandra Vaishya. (¶¶ 58, 59, 60, 61, 62, 69, 70, 72, 73)
• The video showed hostility towards the complainant and at most an intention to malign or defame him, possibly an offence under Section 500 IPC, but nothing indicated the allegations were made because he belonged to a Scheduled Caste. The High Court erred in not asking whether the insult was on account of caste. (¶¶ 57, 58, 74, 81)
• Section 3(1)(u) is attracted only when enmity, hatred or ill-will is promoted against members of the Scheduled Castes or Scheduled Tribes as a group, not where an individual member is targeted. (¶ 77)
• Mere knowledge that the victim is an SC/ST member is not enough for Section 3(1)(r). Where Parliament meant knowledge to suffice, as in Sections 3(1)(w) and 3(2)(v), it said so expressly, and penal provisions must be strictly construed. (¶¶ 79, 80, 82, 83, 84, 85, 86, 87)

Result

Appeal allowed; High Court order set aside. In the event of arrest in the FIR registered at Elamakkara Police Station, the appellant to be released on bail on terms and conditions the Investigating Officer may deem fit.