Kerala High Court: In an appeal relating to the grant of anticipatory bail for the commission of offences under Sections 452, 506(ii) and 195-A of the Penal Code, 1860 as well as under Section 3(2)(va) of the Scheduled Tribes (Prevention of Atrocities) Act, (SC/ST Act) 1989, A. Badharudeen, J. has observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered and when considering the question of prima facie case for considering bail application, the knowledge shall be understood and inferred from the prosecution records.
The Court noted that the prosecution allegation is that the accused persons/appellants who are not members of Scheduled Caste or Scheduled Tribe community, criminally trespassed upon the house of the complainant, who belonged to the said community on 08.07.2022. and threatened her with dire consequences, if she would not be abstaining from proceeding with the Sessions trial pertaining to the death of her son. Further, apprehending arrest in the above case, one of the appellants filed bail application seeking pre-arrest bail before the Special Court, and the Court dismissed the said bail application referring to Section 18 and 18-A of the SC/ST Act.
The Court dealt with the following questions in the present appeal:
(i) Whether grant of anticipatory bail is specifically barred in cases involving commission of offences under the SC/ST Act, 1989 and to what extent relaxation to Section 18 and 18-A of the SC/ST Act is permissible?
The Court took note of the ruling in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 , wherein the Court held that “the scope of Section 18 of the SC/ST Act read with Section 438 of the Code of Criminal Procedure 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 an application for anticipatory bail, unless it prima facie finds that such an offence is not made out” and observed that Section 18 of the SC/ST Act provides that nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person or accusation of an offence committed under this Act.
It further took note of the ruling in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, wherein the Court held that “the High Court has not given any finding in the impugned order that an offence under the aforesaid Act is not made out against the respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in Vilas Pandurang Pawar case. Hence, without going into the merits of the allegations made against the Respondent, we set aside the impugned order of the High Court granting bail to the respondent”.
The Court also observed that after the ruling in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 , SC/ST Act was amended, and Section 18-A got incorporated in the Act which provides that a preliminary enquiry shall not be required for registration of a first information report against any person; or the Investigating Officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation has been made and no procedure other than that provided under this Act shall apply. Further, Section 18(2) provides that 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.
The Court further took note of the decision in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 and observed that the law is well settled that even after incorporation of Section 18-A there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, the Court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.
Thus, there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, provided there is no prima facie case.
(ii) How the word `knowing’ in Section 3(2)(va) of the SC/ST Act to be understood?
The Court observed that, by reading Section 3(2)(va), it is emphatically clear that commission of offences specified in the schedule would attract an offence under Section 3(2)(va) of the SC/ST Act, and to attract the said offence, commission of the offences punishable under the IPC, shown in the schedule, should be committed by the accused against a member of the SC/ST knowing that such person is a member of a SC/ST.
The Court further viewed that, now the question is, how the word “knowing”, in Section 3(2)(va) of the SC/ST Act to be understood, and referred to Section 8(c) of the SC/ST Act, which provides that “if the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved”. Thus, it was observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered. When considering the question of prima facie case for the purpose of considering plea of bail during investigation and the period before trial, the knowledge shall be understood and inferred from the prosecution records.
The Court also viewed that on examination of the schedule in the SC/ST Act, Section 506 of IPC is an offence in the schedule and therefore commission of offence under it would attract an offence under Section 3(2)(va) of the SC/ST Act. Further, it was observed that the knowledge of the accused as to the status of the complainant as a member of the SC/ST community could be inferred prima facie from the prosecution materials. Therefore, prima facie commission of offence under Section 3(2)(va) of the SC/ST Act is made out. Thus, in this case Section 18 and 18-A of the SC/ST Act would apply and therefore, anticipatory bail cannot be granted.
[Abbas R.V v. State of Kerala, 2022 SCC OnLine Ker 4713, decided on 23.09.2022]
Advocates who appeared in this case :
Balamurali K.P., Advocate, Counsel for the Appellant;
P.V.Jeevesh, Advocate, Counsel for the Respondent;
Senior Public Prosecutor T.R.Renjith.