Holding

Section 18 bars anticipatory bail only when a prima facie case exists and a valid arrest can be made under the CrPC; otherwise, anticipatory bail may be granted.

Summary

The appellant, Shajan Skaria, an online news editor, published a YouTube video alleging misconduct by the complainant, an MLA belonging to a Scheduled Caste. The complainant filed a complaint under Sections 3(1)(r) and 3(1)(u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Special Judge denied anticipatory bail invoking Section 18, which was upheld by the Kerala High Court. The Supreme Court examined whether Section 18 creates an absolute bar to anticipatory bail, when a prima facie case exists, and whether the video’s content satisfied the ingredients of offences under Sections 3(1)(r) and 3(1)(u). It held that Section 18 bars anticipatory bail only where a prima facie case is made out and a valid arrest can be effected under CrPC sections 41 and 60A; mere knowledge of the complainant’s caste is insufficient. The Court found no caste‑based intent or promotion of enmity in the video, concluding that no prima facie offence under the Act existed, and therefore set aside the lower courts’ orders and granted bail. The appeal was allowed, directing that the appellant be released on bail with conditions if arrested.

Issues considered

Whether Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989 imposes an absolute bar on the grant of anticipatory bail.
When a prima facie case can be said to be made out in a given FIR or complaint.
Whether the FIR/complaint discloses commission of an offence under Section 3(1)(r) of the Act.
Whether an offence under Section 3(1)(u) of the Act is prima facie made out.
Whether mere knowledge of the complainant's caste identity is sufficient to attract an offence under Section 3(1)(r).

Legislation cited

Code of Criminal Procedure, 1973s. 41, s. 438, s. 482, s. 60A
Constitution of Indias. Article 14, s. Article 21, s. Article 226
Indian Penal Code, 1860s. 500
Kerala Police Acts. 120(o)
Protection of Civil Rights Act, 1955s. 7(1)(d)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 18, s. 18-A(i), s. 3(1)(r), s. 3(1)(u)

Subjects

Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989Anticipatory bailPre-arrest bailBar on grant of anticipatory bailAbsolute barprima facieCasteCaste identityScheduled Caste or Scheduled TribeMember of the Scheduled Caste or Scheduled TribeCaste-based humiliationInsults or intimidationsMalicious prosecutionPolitical/private vendettaArrestHumiliationVideo published on YouTubeTranscript of videowith intent to humiliateIntention to humiliateUntouchabilityDigital materialsInternetSocial mediaSocial media platforms

Judgment

[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
[2024] 8 S.C.R. 1087

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 [2024] 8 S.C.R.

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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
[2024] 8 S.C.R. 1089

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 [2024] 8 S.C.R.

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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.
[2024] 8 S.C.R. 1091

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 [2024] 8 S.C.R.

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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.
[2024] 8 S.C.R. 1093

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 [2024] 8 S.C.R.

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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.
[2024] 8 S.C.R. 1095

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.
1096 [2024] 8 S.C.R.

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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
[2024] 8 S.C.R. 1097

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 [2024] 8 S.C.R.

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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.
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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
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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
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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
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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. 620 and State of Kerala v. Hassan reported
in 2002 (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 India reported 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.
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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
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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.
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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.—
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[(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
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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 sub-
section (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.—
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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
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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.
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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
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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)
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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
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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
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“… 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
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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.—
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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
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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
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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
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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
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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:
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“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)
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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.
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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 Others reported 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
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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 bar for invoking Section 438 of the CrPC yet the courts
are entrusted with a duty to verify the averments in the complaint
and to find out whether an offence under the Act, 1989 is prima facie
made out or not. It was further observed that while considering the
application for anticipatory bail, the scope for appreciation of evidence
and other material is limited and the courts are not expected to
undertake an intricate evidentiary inquiry of the materials on record.
The relevant observations are reproduced hereinbelow:
“9. Section 18 of the SC/ST Act creates a bar for invoking
Section 438 of the Code. However, a duty is cast on the
court to verify the averments in the complaint and to find
out whether an offence under Section 3(1) of the SC/
ST Act has been prima facie made out. In other words,
if there is a specific averment in the complaint, namely,
insult or intimidation with intent to humiliate by calling
with caste name, the accused persons are not entitled to
anticipatory bail.
10. The scope of Section 18 of the SC/ST Act read with
Section 438 of the Code is such that it creates a specific
bar in the grant of anticipatory bail. When an offence
is registered against a person under the provisions of
the SC/ST Act, no Court shall entertain application for
anticipatory bail, unless it prima facie finds that such an
offence is not made out. Moreover, while considering the
application for bail, scope for appreciation of evidence and
other material on record is limited. Court is not expected
to indulge in critical analysis of the evidence on record.
When a provision has been enacted in the Special Act to
protect the persons who belong to the Scheduled Castes
and the Scheduled Tribes and a bar has been imposed in
granting bail under Section 438 of the Code, the provision
in the Special Act cannot be easily brushed aside by
elaborate discussion on the evidence.”
(Emphasis supplied)
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39. A three-Judge Bench of this Court in Rahna Jalal v. State of Kerala
reported in (2021) 1 SCC 733 while discussing in the context of
Section 7 of the Muslim Women (Protection of Rights on Marriage)
Act, 2019, elaborated on the requirement of the existence of a prima
facie case under Section 18 of the Act, 1989 for the bar of anticipatory
bail to become applicable, as follows:
“25. Thus, even in the context of legislation, such as the
Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act 1989, where a bar is interposed by
the provisions of Section 18 and Sub-section (2) of
Section 18-A on the application of Section 438 of the
CrPC, this Court has held that the bar will not apply
where the complaint does not make out “a prima facie
case” for the applicability of the provisions of the Act. A
statutory exclusion of the right to access remedies for bail
is construed strictly, for a purpose. Excluding access to
bail as a remedy, impinges upon human liberty. Hence,
the decision in Chauhan (supra) held that the exclusion
will not be attracted where the complaint does not prima
facie indicate a case attracting the applicability of the
provisions of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989.”
(Emphasis supplied)
40. This Court, in Hitendra Vishnu Thakur and Others v. State of
Maharashtra and Others reported in (1994) 4 SCC 602, while
discussing a similarly worded provision in the Terrorist and Disruptive
Activities (Prevention) Act, 1985, held as follows:
“13. We would, therefore, at this stage like to administer a
word of caution to the Designated Courts regarding invoking
the provisions of TADA merely because the investigating
officer at some stage of the investigation chooses to add
an offence under same (sic some) provisions of TADA
against an accused person, more often than not while
opposing grant of bail, anticipatory or otherwise. The
Designated Courts should always consider carefully the
material available on the record and apply their mind to
see whether the provisions of TADA are even prima facie
attracted.”
(Emphasis supplied)
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a. Significance of the expression “arrest of any person”
appearing in Section 18 of the Act, 1989
41. It is clear from the aforesaid discussion that Section 18 of the 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
Act, 1989 is made out or not. 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.
42. Section 60A of CrPC provides that no arrest shall be made except in
accordance with the provisions of CrPC or any other law for the time
being in force and providing for arrest. Section 41 of CrPC confers
upon the police the power to arrest without warrant in certain situations
as specified therein. Sections 41(1)(b) and 41(1)(ba) respectively of
CrPC read as follows:
“41. When police may arrest without warrant.—(1) Any
police officer may without an order from a Magistrate and
without a warrant, arrest any person—
xxx xxx xxx
(b) against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which
may be less than seven years or which may extend to
seven years whether with or without fine, if the following
conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis
of such complaint, information, or suspicion that such
person has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary—
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(a) to prevent such person from committing any
further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence
of the offence to disappear or tampering with
such evidence in any manner; or
(d) to prevent such person from making 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 the police officer; or
(e) as unless such person is arrested, his presence
in the Court whenever required cannot be
ensured, and the police officer shall record while
making such arrest, his reasons in writing.
Provided that a police officer shall, in all cases where
the arrest of a person is not required under the
provisions of this sub-section, record the reasons in
writing for not making the arrest.
(ba) against whom credible information has been received
that he has committed a cognizable offence punishable
with imprisonment for a term which may extend to more
than seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the
basis of that information that such person has committed
the said offence.”
43. A plain reading of the above provision shows 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 is worth noting that the words
‘complaint’, ‘information’ and ‘suspicion’ are qualified by the adjectives
‘reasonable’, ‘credible’ and ‘reasonable’ respectively. 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.
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44. 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 in (2022) 10 SCC 51 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. The relevant paragraphs are reproduced hereinbelow:
“25. The consequence of non-compliance with Section 41
shall certainly inure to the benefit of the person suspected of
the offence. Resultantly, while considering the application for
enlargement on bail, courts will have to satisfy themselves
on the due compliance of this provision. Any non-compliance
would entitle the accused to a grant of bail.”
45. In Arnesh Kumar v. State of Bihar and Another reported in (2014)
8 SCC 273, this Court laid emphasis on the phrases “credible
information” and “reasonable suspicion” as they appear in Section 41
of CrPC and held as follows:
“5. Arrest brings humiliation, curtails freedom and casts
scars forever. Lawmakers know it so also the police. There
is a battle between the lawmakers and the police and it
seems that the police has not learnt its lesson: the lesson
implicit and embodied in CrPC. It has not come out of its
colonial image despite six decades of Independence, it
is largely considered as a tool of harassment, oppression
and surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been
emphasised time and again by the courts but has not
yielded desired result. Power to arrest greatly contributes
to its arrogance so also the failure of the Magistracy to
check it. Not only this, the power of arrest is one of the
lucrative sources of police corruption. The attitude to
arrest first and then proceed with the rest is despicable.
It has become a handy tool to the police officers who lack
sensitivity or act with oblique motive.
6. Law Commissions, Police Commissions and this Court
in a large number of judgments emphasised the need to
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maintain a balance between individual liberty and societal
order while exercising the power of arrest. Police officers
make arrest as they believe that they possess the power
to do so. As the arrest curtails freedom, brings humiliation
and casts scars forever, we feel differently. We believe
that no arrest should be made only because the offence
is non-bailable and cognizable and therefore, lawful for
the police officers to do so. The existence of the power
to arrest is one thing, the justification for the exercise of
it is quite another. Apart from the power to arrest, the
police officers must be able to justify the reasons thereof.
No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a
person. It would be prudent and wise for a police officer
that no arrest is made without a reasonable satisfaction
reached after some investigation as to the genuineness of
the allegation. Despite this legal position, the legislature
did not find any improvement. Numbers of arrest have
not decreased. Ultimately, Parliament had to intervene
and on the recommendation of the 177th Report of the
Law Commission submitted in the year 2001, Section 41
of the Code of Criminal Procedure (for short “CrPC”), in
the present form came to be enacted. It is interesting to
note that such a recommendation was made by the Law
Commission in its 152nd and 154th Report submitted as
back in the year 1994. The value of the proportionality
permeates the amendment relating to arrest.
xxx xxx xxx
7.3. In pith and core, the police officer before arrest must
put a question to himself, why arrest? Is it really required?
What purpose it will serve? What object it will achieve?
It is only after these questions are addressed and one or
the other conditions as enumerated above is satisfied, the
power of arrest needs to be exercised. In fine, before arrest
first the police officers should have reason to believe on
the basis of information and material that the accused has
committed the offence. Apart from this, the police officer
has to be satisfied further that the arrest is necessary for
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one or the more purposes envisaged by sub-clauses (a)
to (e) of clause (1) of Section 41 CrPC.
xxx xxx xxx
10. We are of the opinion that if the provisions of Section 41
CrPC which authorises the police officer to arrest an
accused without an order from a Magistrate and without
a warrant are scrupulously enforced, the wrong committed
by the police officers intentionally or unwittingly would
be reversed and the number of cases which come to
the Court for grant of anticipatory bail will substantially
reduce. We would like to emphasise that the practice of
mechanically reproducing in the case diary all or most of
the reasons contained in Section 41 CrPC for effecting
arrest be discouraged and discontinued.”
(Emphasis supplied)
46. The aforesaid discussion indicates that the term ‘arrest’ appearing
in the text of Section 18 of the Act, 1989 should 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. Seen thus, it can be said 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, 1989. We say so 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.
iii. When can it be said that a prima facie case is made out in
a given FIR/complaint?
47. Prima facie is a Latin term that translates to “at first sight” or “based
on first impression”. The expression “where no prima facie materials
exist warranting arrest in a complaint or FIR” should be understood
as “when based on first impression, no offence is made out as shown
in the FIR or the complaint”. This means that when the necessary
ingredients to constitute the offence under the Act, 1989 are not
made out upon the reading of the complaint, no case can be said
to exist prima facie.
48. As a sequitur, if the necessary ingredients to constitute the offence
under the Act, 1989 are not disclosed on the prima facie reading
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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.
49. In our opinion, the aforesaid is the only test that the court should
apply, when an accused prays for anticipatory bail in connection with
any offence alleged to have been committed under the provisions of
the Act, 1989. In a given case, an accused may argue that although
the allegations levelled in the FIR or the complaint do disclose the
commission of an offence under the Act, 1989, yet the FIR or the
complaint being palpably false on account of political or private
vendetta, the court should consider the plea for grant of anticipatory
bail despite the specific bar of Section 18 of the Act, 1989. However,
if the accused puts forward the case of malicious prosecution
on account of political or private vendetta then the same 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. However, powers
under Section 438 of the CrPC cannot be exercised once the contents
of the complaint/FIR disclose a prima facie case. In other words, if
all the ingredients necessary for constituting the offence are borne
out from the complaint, then the remedy of anticipatory bail becomes
unavailable to the accused.
50. 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. 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 Act, 1989. 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.
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51. The aforesaid position is also apparent from a plain construction
of the text of Section 18 of the Act, 1989. The 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 Act, 1989 that the bar of Section 18 would
apply. The minimum threshold for determining whether an offence
under the Act has been committed or not is to ascertain whether
all the ingredients which are necessary to constitute the offence
are prima facie disclosed in the complaint or not. An accusation
which does not disclose the necessary ingredients of the offence
on a prima facie reading cannot be said to be sufficient to bring into
operation the bar envisaged by Section 18 of the Act, 1989. Holding
otherwise would mean that even a plain accusation, devoid of the
essential ingredients required for constituting the offence, would be
enough for invoking the bar under Section 18. In our considered
view, such an approach would not be in line with the dictum as laid
by this Court while upholding the Constitutionality of Sections 18
and 18-A respectively of the Act, 1989.
52. Having said so, we would also like to state that the case at hand is
of a unique nature and one that falls in a separate category. With
the advent of internet and social media, cases like the one we are
dealing with are likely to come up more frequently. In the present
case, the basis of the FIR is the YouTube video and some other
digital materials alleged to have been published by the appellant
in the public domain. It is not the case of the complainant that the
appellant subjected him to insults or humiliations in some public
gathering, the details of which can only be gathered by recording
the statements of witnesses. The entire incriminatory material
based upon which the complaint came to be lodged was available
in the public domain by virtue of having been uploaded on social
media platforms. We had the occasion to threadbare go through the
transcript of the YouTube video. 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.
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iv. Whether the averments in the FIR/complaint in question
disclose commission of any offence under Section 3(1)(r)
of the Act, 1989?
53. It is the case of the complainant as well as the State that considering
the rash and derogatory statements alleged to have been made by
the appellant herein, he could be said to have prima facie committed
the offence under Sections 3(1)(r) and 3(1)(u) respectively of the
Act, 1989.
54. We shall first proceed to examine whether the necessary ingredients
to constitute the offence under Section 3(1)(r) of the Act, 1989 are
prima face disclosed on a plain reading of the FIR. Section 3(1)(r)
reads thus:
“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,—
XXX XXX XXX
(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;”
(Emphasis supplied)
55. The basic ingredients to constitute the offence under Section 3(1)(r)
of the Act, 1989 are:
a. Accused person must not be a member of the Scheduled Caste
or Scheduled Tribe;
b. Accused must intentionally insult or intimidate a member of a
Scheduled Caste or Scheduled Tribe;
c. Accused must do so with the intent to humiliate such a person;
and
d. Accused must do so at any place within public view.
56. It is relevant to note that Section 3(1)(r) of the Act, 1989 is similarly
worded as the erstwhile Section 3(1)(x) of the Act, 1989 which was
in force prior to its substitution with effect from 26.01.2016.
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57. In the case at hand, the appellant is alleged to have published a video
on YouTube, containing a slew of reckless statements in the form of
allegations levelled against the complainant. We are not supposed
to look into the veracity or the truthfulness of such allegations as
contained in the video. We are only trying to understand that even
if all the statements alleged to have been made by the appellant
are believed to be true whether any offence under Section 3(1)(r)
of the Act, 1989 could be said to have been prima facie committed.
In our opinion, the answer should be in the negative.
58. We say so for the reason that all insults or intimidations to a member
of the Scheduled Caste or Scheduled Tribe will not amount to an
offence under the Act, 1989 unless such insult or intimidation is on
the ground that the victim belongs to Scheduled Caste or Scheduled
Tribe. There is nothing in the transcript of the uploaded video to
indicate even prime facie that those allegations were made by the
appellant only on account of the fact that the complainant belongs to
a Scheduled Caste. From the nature of the allegations made by the
appellant, it appears that he is at inimical terms with the complainant.
His intention may be to malign or defame him but not on the ground
or for the reason that the complainant belongs to a Scheduled Caste.
59. In the aforesaid context, we may refer to and rely upon a three-Judge
Bench decision of this Court in Hitesh Verma (supra). The relevant
observations are reproduced below:
“13. The offence under Section 3(1)(r) of the Act would
indicate the ingredient of intentional insult and intimidation
with an intent to humiliate a member of a Scheduled
Caste or a Scheduled Tribe. All insults or intimidations to
a person will not be an offence under the Act unless such
insult or intimidation is on account of victim belonging to
Scheduled Caste or Scheduled Tribe. The object of the
Act is to improve the socio-economic conditions of the
Scheduled Castes and the Scheduled Tribes as they are
denied number of civil rights. Thus, an offence under the
Act would be made out when a member of the vulnerable
section of the society is subjected to indignities, humiliations
and harassment. The assertion of title over the land by
either of the parties is not due to either the indignities,
humiliations or harassment. Every citizen has a right to
avail their remedies in accordance with law. Therefore,
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if the appellant or his family members have invoked
jurisdiction of the civil court, or that Respondent 2 has
invoked the jurisdiction of the civil court, then the parties are
availing their remedies in accordance with the procedure
established by law. Such action is not for the reason that
Respondent 2 is a member of Scheduled Caste.
xxx xxx xxx
17. In another judgment reported as Khuman Singh v. State
of M.P. [Khuman Singh v. State of M.P. (2020) 18 SCC 763 :
2019 SCC OnLine SC 1104] , this Court held that in a case
for applicability of Section 3(2)(v) of the Act, the fact that
the deceased belonged to Scheduled Caste would not be
enough to inflict enhanced punishment. This Court held
that there was nothing to suggest that the offence was
committed by the appellant only because the deceased
belonged to Scheduled Caste. The Court held as under:
“15. As held by the Supreme Court, the offence
must be such so as to attract the offence under
Section 3(2)(v) of the Act. The offence must
have been committed against the person on
the ground that such person is a member of
Scheduled Caste and Scheduled Tribe. In the
present case, the fact that the deceased was
belonging to “Khangar” Scheduled Caste is not
disputed. There is no evidence to show that the
offence was committed only on the ground that
the victim was a member of the Scheduled Caste
and therefore, the conviction of the appellant-
accused under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act is not sustainable.”
18. Therefore, offence under the Act is not established
merely on the fact that the informant is a member of
Scheduled Caste unless there is an intention to humiliate
a member of Scheduled Caste or Scheduled Tribe for
the reason that the victim belongs to such caste. In the
present case, the parties are litigating over possession of
the land. The allegation of hurling of abuses is against a
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person who claims title over the property. If such person
happens to be a Scheduled Caste, the offence under
Section 3(1) (r) of the Act is not made out.”
(Emphasis supplied)
60. Thus, the dictum as laid aforesaid is that the offence under
Section 3(1)(r) of the Act, 1989 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 other
words, it is not the purport of the Act, 1989 that every act of intentional
insult or intimidation meted by a person who is not a member of a
Scheduled Caste or Scheduled Tribe to a person who belongs to a
Scheduled Caste or Scheduled Tribe would attract Section 3(1)(r)
of the Act, 1989 merely because it is committed against a person
who happens to be a member of a Scheduled Caste or Scheduled
Tribe. On the contrary, Section 3(1)(r) of the Act, 1989 is attracted
where the reason for the intentional insult or intimidation is that
the person who is subjected to it belongs to a Scheduled Caste or
Scheduled Tribe. We say so because the object behind the enactment
of the Act, 1989 was to provide stringent provisions for punishment
of offences which are targeted towards persons belonging to the
SC/ST communities for the reason of their caste status.
a. Meaning of the expression “intent to humiliate” appearing
in Section 3(1)(r) of the Act, 1989
61. The words “with intent to humiliate” as they appear in the text of
Section 3(1)(r) of the Act, 1989 are inextricably linked to the caste
identity of the person who is subjected to intentional insult or
intimidation. 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 of the type envisaged by the Act, 1989.
62. We would like to refer to the observations of this Court in Ram Krishna
Balothia (supra) to further elaborate upon the idea of “humiliation”
as it has been used under the Act, 1989. It was observed in the said
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case that the offences enumerated under the Act, 1989 belong to a
separate category as they arise from the practice of ‘untouchability’
and thus the Parliament was competent to enact special laws treating
such offences and offenders as belonging to a separate category.
Referring to the Statements of Objects and Purposes of the Act, 1989
it was observed by this Court that the object behind the introduction
of the Act, 1989 was to afford statutory protection to the Scheduled
Castes and the Scheduled Tribes, who were terrorised and subjected
to humiliation and indignations upon assertion of their civil rights and
resistance to the practice of untouchability. For this reason, mere
fact that the person subjected to insult or intimidation belongs to a
Scheduled Caste or Scheduled Tribe would not attract the offence
under Section 3(1)(r) unless it was the intention of the accused to
subject the concerned person to caste-based humiliation.
63. V. Geetha in her paper titled Bereft of Being: The Humiliations of
Untouchability1 describes humiliation as an experience that is “felt,
held and savoured in the very gut of our existence.” Humiliation, in
her understanding, can either be suffered as a one-time occurrence
which bruises the self-esteem or pride of an individual, or it can be
“suffered as a condition that is degrading and wounding.” In the
words of Gopal Guru, humiliation is not so much a physical injury
but is in the nature of a psychological injury that leaves a permanent
scar on the heart.
64. Explaining the social structures that perpetuate humiliation, Gopal
Guru, in an introduction to his book2 writes that “humiliation is almost
endemic to social life that is active basically through asymmetries
of intersecting sects of attitudes – arrogance and obeisance, self-
respect and servility and reverence and repulsion. Discussing on
how the basis of humiliation varies in different societies, depending
upon the social context, he observes that the idea and practice of
humiliation “continues to survive in different forms depending upon
the specific nature of the social context. For example, in the West it
is the attitude of race that is at the base of humiliation. In the East, it
is the notion of untouchability that foregrounds the form and content
of humiliation.”

1 Humiliation: Claims and Context, Oxford University Press, First Edition (2009), pp. 95-107
2 Humiliation: Claims and Context (supra), pp. 1-22
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65. While Gopal Guru makes the aforesaid observation in the context of
different societies in relation to one another, such as the East and
the West, in our opinion the observations are equally applicable to
specific individual societies as well wherein multiple varying grounds
of humiliation like gender, caste, race, etc. can co-exist and apply
to the same or different individuals and groups.
66. Bhikhu Parekh in his paper titled Logic of Humiliation3 attempts
to differentiate humiliation from other concepts that it is generally
confused with. He gives the example of the ticket inspector who threw
Gandhi off the train in South Africa to argue that humiliation might,
but need not, involve physical cruelty. On the contrary, he contends
that a man who starves another to death and tortures him, shows
cruelty but does not necessarily humiliate him. He argues the same
regarding the difference between insult and humiliation and observes
that although humiliation generally involves insult, yet insult alone is
not sufficient to constitute humiliation.
67. On the social context of humiliation, Parekh writes that “organised
or institutionalized humiliation exists when social institutions and
practices embody disrespect for, and systematically violate the self-
respect of, groups of individuals.” Drawing a distinction between
systemic and regimented humiliation on the one hand as distinguished
from isolated incidents of humiliation on the other, he observes that
while the latter is present in modern liberal societies, the former is
found in societies structured on the basis of slavery, racial segregation,
untouchability, caste system, hierarchical status, etc. According to
him, the reason for the same is that the modern liberal societies,
though marked by deep economic, political and other inequalities,
allow for vertical mobility owing to the fluid nature of the inequalities.
Whereas, societies based on race, caste system, etc. are grounded
in inequalities like colour, birth, ethnicity, etc. which are unalterable
and deeply entrenched in the very foundational fabric of such a
society. The inflexible nature of the basis of inequalities leads to the
existence of a more structural and systemic form of humiliation, as
the perpetrator is assured of its place in the structure of the society
owing to its immobility. Since no one can be assured of the same in
a modern liberal society which is marked by vertical mobility in the

3 Humiliation: Claims and Context (supra), pp. 23-40
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social structure, there is no incentive for anyone to have a regimented
system of humiliation.
68. Resistance is internal to humiliation, and some scholars have argued
that humiliation is only defined on the basis of the claims made
against it. Thus, those who are humiliated also inherently possess
the capacity to protest against it. However, those who protest also
run the risk of inciting opposition from those who want to push the
traditionally humiliated groups to the margins. This apprehension of
opposition and push back from the dominant against the marginalised
is also evident from the Statements of Objects of the Act, 1989, as
discussed by this Court in Ram Krishna Balothia (supra).
69. What appears from the aforesaid discussion is that the expression
“intent to humiliate” as it appears in Section 3(1)(r) of the Act, 1989
must necessarily 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 Act, 1989. The Parliament, by way of different legislations,
has over the years sought to target humiliation based on different
grounds and identities which exist in the society. The Protection of
Women from Domestic Violence Act, 2005 seeks to punish humiliation
based on gender inequalities by specifically including the term
‘humiliation’ in the definition of “domestic violence”. Similarly, The
Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 includes treatment causing humiliation to a
female employee and which may likely affect her health and safety
within the definition of sexual harassment.
70. In our considered view, it is in a similar vein that the term ‘humiliation’
as it appears in Section 3(1)(r) of the Act, 1989 must be construed,
that is, in a way that it deprecates the infliction of humiliation against
members of the Scheduled Castes and Scheduled Tribes wherein
such humiliation is intricately associated with the caste identity of
such members.
71. We would also like to refer to Section 7(1)(d) of The Protection of
Civil Rights Act, 1955 (“Civil Rights Act”) at this juncture to give
a more meaningful construction to Section 3(1)(r) of the Act, 1989.
The provision reads as follows:
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“7. Punishment for other offences arising out of
“untouchability”.—(1) Whoever—
xxx xxx xxx
(d) insults or attempts to insult, on the ground of
“untouchability”, a member of a Scheduled Caste;
shall be punishable with imprisonment for a term of not
less than one month and not more than six months, and
also with fine which shall be not less than one hundred
rupees and not more than five hundred rupees.”
72. It is clear from a plain reading of the aforesaid provision that 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 under the Civil Rights Act. With
the passage of time, it was realised by the legislature that the Civil
Rights Act was not adequately sufficient to tackle caste-based offences
and the practice of “untouchability”, leading to the enactment of the
Act, 1989 introducing more stringent provisions for combating such
practices. Section 3(1)(r) of the Act, 1989 should, thus, be seen in
the context of Section 7(1)(d) of the Civil Rights Act. Seen thus, the
words “with an intent to humiliate a member of a Scheduled Caste
or Scheduled Tribe” become inseparable from the underlying idea
of “untouchability” which is sought to be remedied and punished by
the Act, 1989.
73. A two-Judge Bench of this Court in Ramesh Chandra Vaishya
(supra) explained that for an act of intentional insult to attract the
offence under erstwhile Section 3(1)(x) of the Act, 1989 (which is
identical to Section 3(1)(r) of the Act, 1989) it was necessary that
the insult is laced with casteist remarks. Relevant observations is
extracted hereinbelow:
“18. […] The legislative intent seems to be clear that every
insult or intimidation for humiliation to a person would
not amount to an offence under section 3(1)(x) of the
SC/ST Act unless, of course, such insult or intimidation is
targeted at the victim because of he being a member of a
particular Scheduled Caste or Tribe. If one calls another an
idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any
place within public view, this would obviously constitute
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an act intended to insult or humiliate by user of abusive or
offensive language. Even if the same be directed generally
to a person, who happens to be a Scheduled Caste or
Tribe, per se, it may not be sufficient to attract section 3(1)
(x) unless such words are laced with casteist remarks. […]”
74. Having regard to the reprehensible conduct and the nature of the
derogatory statements made, the appellant, at best could be said to
have prima facie committed the offence of defamation punishable
under Section 500 of the IPC. If that be so, it is always open for the
complainant to prosecute the appellant accordingly. However, the
complainant could not have invoked the provisions of the Act, 1989
only on the premise that he is member of Scheduled Caste, more
so, when a prima facie conjoint reading of the transcript of the video
and the complaint fails to disclose that the actions of the appellant
were impelled by the caste identity of the complainant.
v. Whether any offence under Section 3(1)(u) of the Act, 1989
is prima facie made out in the FIR/complaint in question?
75. Section 3(1)(u) of the Act, 1989 reads thus:
“Punishments for offences of atrocities.— (1) Whoever, not
being a member of a Scheduled Caste or a Scheduled
Tribe,—
xxx xxx xxx
(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;
xxx xxx xxx
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”
(Emphasis supplied)
76. The basic ingredients for constituting an offence under Section 3(1)
(u) of the Act, 1989 are:
a. Accused should not be a member of the Schedule Caste or
Scheduled Tribe;
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b. Accused should by words, either written or spoken, or by signs
or by visible representation or otherwise;
c. Promote or attempt to promote feelings of enmity, hatred or
ill-will against members of the Scheduled Caste or the Scheduled
Tribes.
77. In our opinion, 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 has nothing to do
in general with the members of Scheduled Caste or the Scheduled
Tribe. His target was just the complainant alone. 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.
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?
78. It was also sought to be argued that the appellant knew very well
that the complainant belongs to a Scheduled Caste and despite such
knowledge if he went on to make derogatory utterances in the video
then the offence under Sections 3(1)(r) and 3(1)(u) respectively of
the Act, 1989 could be said to have been prima facie made out.
79. We find no merit in the aforesaid submission. 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 Act, 1989, it has said so in so many words. We
may reproduce some of the relevant provisions where knowledge
that the complainant belongs to the Scheduled Castes or Scheduled
Tribes is sufficient in itself to constitute the offence:
“3. Punishments for offences atrocities.-(1)
xxx xxx xxx
(w)(i) intentionally touches a woman belonging to a
Scheduled Caste or a Scheduled Tribe, knowing that she
belongs to a Scheduled Caste or a Scheduled Tribe, when
such act of touching is of a sexual nature and is without
the recipient’s consent;
[2024] 8 S.C.R. 1143

Shajan Skaria v. The State of Kerala & Anr.

(ii) uses words, acts or gestures of a sexual nature towards
a woman belonging to a Scheduled Caste or a Scheduled
Tribe, knowing that she belongs to a Scheduled Caste or
a Scheduled Tribe.”
xxx xxx xxx
(2) Whoever, not being a member of a Scheduled Caste
or a Scheduled Tribe,—
xxx xxx xxx
(v) commits any offence under the Indian Penal Code
(45 of 1860) punishable with imprisonment for a term of
ten years or more against a person or property [knowing
that such person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such member],
shall be punishable with imprisonment for life and with fine;
(va) commits any offence specified in the Schedule, against
a person or property, knowing that such person is a member
of a Scheduled Caste or a Scheduled Tribe or such property
belongs to such member, shall be punishable with such
punishment as specified under the Indian Penal Code (45
of 1860) for such offences and shall also be liable to fine;]”
(Emphasis supplied)
80. At the cost of repetition, the words in Section 3(1)(r) of the Act, 1989
are altogether different. Mere knowledge of the fact that the victim is
a member of the Scheduled Caste or Scheduled Tribe is not sufficient
to attract Section 3(1)(r) of the Act, 1989. As discussed earlier, the
offence must have been committed against the person on the ground
or for the reason that such person is a member of Scheduled Caste
or Scheduled Tribe. When we are considering whether prima facie
materials exist, warranting arrest of the appellant, there is nothing
to indicate that the allegations/statements alleged to have been
made by the appellant were for the reason that the complainant is
a member of a Scheduled Caste.
81. The High Court in its impugned order has observed “materials on
record do indicate that the video is intended to insult and humiliate
the second respondent.” The High Court may be right in observing
that the intention of the appellant could have been to insult and
1144 [2024] 8 S.C.R.

Digital Supreme Court Reports

humiliate the complainant but the High Court failed to consider whether
such insult or humiliation was on account of or for the reason that
the complainant belongs to Scheduled Caste. Is it the case of the
complainant that had he not belonged to a Scheduled Caste, the
appellant would not have levelled the allegations? The answer lies
in the question itself.
82. 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.
83. Maxwell in The Interpretation of Statutes (12th Edn.) has observed
that “the strict construction of penal statutes seems to manifest itself
in four ways: in the requirement of express language for the creation
of an offence; in interpreting strictly words setting out the elements
of an offence; in requiring the fulfilment to the letter of statutory
conditions precedent to the infliction of punishment; and in insisting
on the strict observance of technical provisions concerning criminal
procedure and jurisdiction.”
84. William F. Craies in Statute Law (7th Edn. at p. 530) while referring
to U.S. v. Wiltberger [5 L Ed 37 : 18 US (5 Wheat.) 76 (1820)]
observes thus:
“The distinction between a strict construction and a
more free one has, no doubt, in modern times almost
disappeared, and the question now is, what is the true
construction of the statute? I should say that in a criminal
statute you must be quite sure that the offence charged is
within the letter of the law. This rule is said to be founded
on the tenderness of the law for the rights of individuals,
and on the plain principle that the power of punishment is
vested in the legislature, and not in the judicial department,
for it is the legislature, not the court, which is to define a
crime and ordain its punishment.”
(Emphasis supplied)
85. In Tuck & Sons v. Priester reported in (1887) 19 QBD 629 (CA),
which was followed in London and Country Commercial Properties
[2024] 8 S.C.R. 1145

Shajan Skaria v. The State of Kerala & Anr.

Investments Ltd. v. Attorney General reported in (1953) 1 WLR
312 : (1953) 1 All ER 436, it was observed thus:
“We must be very careful in construing that section, because
it imposes a penalty. If there is a reasonable interpretation,
which will avoid the penalty in any particular case, we must
adopt that construction. Unless penalties are imposed in
clear terms, they are not enforceable. Also, where various
interpretations of a section are admissible it is a strong
reason against adopting a particular interpretation if it
shall appear that the result would be unreasonable or
oppressive.”
(Emphasis supplied)
86. Blackburn, J. in Willis v. Thorp reported in (1875) LR 10 QB 383
observed that “when the legislature imposes a penalty, the words
imposing it must be clear and distinct.”
87. We have construed Section 18 of the Act, 1989 keeping in mind
the aforesaid principles of statutory construction. We are of the
view that taking any other view than the one taken by us would
be unreasonable, oppressive and not in tune with the consecrated
principles of our Constitution.
H. CONCLUSION
88. For all the foregoing reasons, this appeal succeeds and is hereby
allowed. The impugned order passed by the High Court is hereby
set aside.
89. We direct that in the event of arrest of the appellant by police in
connection with the First Information Report No. 899 of 2023 lodged
at the Elamakkara Police Station, he shall be released on bail subject
to terms and conditions, which the Investigating Officer may deem
fit to impose.
90. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Divya Pandey