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JAMMU AND KASHMIR HIGH COURT
Rajesh Sekhri, J.
Santosha Devi – Petitioner
versus
UT of J&K and Ors. – Respondents
CRM(M) No. 63 of 2026
Decided on 2.4.2026
For the Petitioner:M/s J. P. Gandhi and Nipun Gandhi, Advocates
For the Respondents: Mrs. Monika Kohli, Sr. AAG
IMPORTANT POINTS
(1) Pre-arrest bail [Anticipatory bail] – Not every insult against a member of SC/ST community qualifies as offence under SC/ST Act, if it lacks caste based humiliation – Mere uttering a caste name or abusing someone in a private dispute without specific caste name intent to humiliate would not constitute offence under the Act because core of offence is intent to humiliate someone specifically because of his caste identity.
(2) Once a person decides to frame somebody in a false case, he would design complaint in a fashion to create illusion of existence of ingredients necessary to constitute offence.
(3) Courts are required to focus on substance of averments and scrutinize allegations contained in FIR or complaint to ascertain if it genuinely discloses commission of an offence or not – Courts are not obliged to accept, what is stated in FIR or complaint as a gospel truth.
Headnote:
(A) Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 – Sections 18 and 18A – Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Pre-arrest bail – Where it is apparent from face of FIR or complaint that no ingredient prima facie constituting offence under SC/ST Act is made out, anticipatory bail can be granted – Offence under Section 3(1)(r) of SC/ST Act cannot stand only on the ground that complainant is a member of a Scheduled Caste or a Scheduled Tribe, unless there exists intention to humiliate him on account of his belonging to such community – Merely abusing a member of a Scheduled Caste or Scheduled Tribe or merely uttering a caste name by itself would not be sufficient to constitute offence within meaning of Section 3(1)(s) of Act, and it is necessary that accused abuses a member of such community “by the caste name” in any place within public view – If necessary ingredients to constitute offence(s) under SC/ST Act are not disclosed on prima facie reading of allegations contained in complaint or FIR, bar contained in Section 18 or 18A of SC/ST Act would not apply and Courts, in appropriate cases, can consider grant of pre-arrest bail. (Paras 20, 23 and 24)
(B) Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 – Sections 18 and 18A – Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Pre-arrest bail [Anticipatory bail] – Refusal – Not every insult against a member of SC/ST community qualifies as offence under SC/ST Act, if it lacks caste based humiliation – Mere uttering a caste name or abusing someone in a private dispute without specific caste name intent to humiliate would not constitute offence under the Act because core of offence is intent to humiliate someone specifically because of his caste identity – Even a single caste-based abuse shall be sufficient to make out offence under SC/ST Act, if it is linked to victim’s caste and intended to humiliate him in “public view” – Requirement of law is that it is not a generic abuse or insult, but accused must know that victim belongs to SC/ST community and utterance specifically targets that identity in public view – Once a person decides to frame somebody in a false case, he would design complaint in a fashion to create illusion of existence of ingredients necessary to constitute offence – Attempt can be made to circumvent legal barriers by creatively phrasing facts and avoid mentioning actual background – A minor offence may be camouflaged and given texture of a special offence or a graver offence with a veiled object of persecution rather than prosecution of accused – In such cases, courts are not obliged to accept, what is stated in FIR or complaint as a gospel truth – Court should not shy away from conducting preliminary enquiry to determine if narration of facts in complain/FIR, in fact discloses essential ingredients required to constitute offence under the Act or not – There is nothing in transcript of Video Recording or Press Conference to even prima facie indicate that necessary ingredients to constitute offences under Sections 3(1)(r) or 3(1)(s) of SC/ST Act are made out against petitioner, though rest of offences, under penal laws may be constituted – Pre-arrest bail granted. (Paras 34, 36, 37, 41 and 42)
Result: Petition allowed. Pre-arrest bail granted.
JUDGMENT
Aggrieved of order dated 21.01.2026 passed by learned Principal Sessions Judge (Special Judge) Bhadewah [“the trial Court”], vide which, her application for pre-arrest bail came to be dismissed, petitioner has preferred this composite petition under Section 528 BNSS read with Section 14A(2) of the Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 [hereinafter referred to as ‘SC/ST Act’].
2. An overview of the prosecution case is that on 09.01.2026, respondent No.2, [“the complainant”] at about 1700 hours, lodged a written report with Police Station, Doda, for registration of FIR against the petitioner, a member of District Development Council Kastigarh and her sons for the commission of cognizable offences during a public function. It was alleged that on 08.01.2026, during the inauguration of a road at Kastigarh, where MLA Doda, DDC Chairman and DDC vice Chairperson were present as Chief Dignitaries, sons of the petitioner with her connivance and connivance of their supporters, in furtherance of common criminal intention and without any provocation, attacked the complainant and others present at the venue. They indulged in physical violence, use of criminal force, intimidation and threats thereby disturbing public order and creating panic and chaos in the public function. Petitioner, Santosha Devi was armed with a sharp edged weapon, a scissor, with which she inflicted injuries upon the complainant party thereby endangering their lives. Complainant was brutally assaulted and he sustained injuries.
3. Allegation of the complainant, in particular, is that petitioner, with deliberate attempt, publicly abused, humiliated and insulted him by passing caste based derogatory slur “chinal”, knowing fully well that he belongs to ‘Megh’ community a Scheduled Caste category. Entire occurrence was captured in a video recording and photographs were circulated on social media platforms.
4. On the receipt of this complaint, FIR No. 09 of 2026, for offences punishable under Sections 126(2), 115(2), 351(2), 352 BNS read with Sections (1)(r) and 3(1)(s) of SC/ST Act came to be registered.
5. The investigating Agency, besides legal formalities recorded statements of key eye-witnesses, under Sections 180 and 183 BNSS. Statements of Lumbardar and Chowkidar of the area also came to be recorded who confirmed that term “Chinal” is locally understood as an abusive caste based slur, linked to “Megh” caste, an SC category intended to insult members of the community. The electronic evidence including videos and photographs of the incident was collected. Caste certificates of the complainant and accused were obtained from competent authorities, which verified that complainant belongs to ‘Megh’, 3 a Scheduled Caste category and accused belongs to ‘Jaral’, Rajput General Category.
6. The investigating agency, thus concluded that offences under Sections 115(2), 352 BNS and 3(1)(r) and 3(1)(s) SC/ST Act were established against accused persons, namely, Santosha Devi, the petitioner and her son Swarn Veer Singh Jaral. Accused Swarn Veer Singh Jaral, who was arrested on 26.01.2026 came to be released on bail by the trial Court on 30.01.2026
7. Learned trial court rejected bail plea of the petitioner, primarily on the ground that since word “Chinal” has been uttered by her to the complainant, member of Scheduled Caste, in a public view, prima facie ingredients of offences under SC/ST Act are made out.
8. Petitioner has taken an exception to the observation of learned trial court that word ‘Chinal’ is a derogatory word spoken in local language to Scheduled caste people.
9. According to the petitioner, term “Chinal” can be inferred in two senses, one which can be extracted from the internet; and another from the local language. While, meaning extracted from internet suggests that it is a gender specific word and referred for the women who are harlots, whereas complainant is a male and in local language, word “chinal” is derived from w
