Point of Law : SC/ST – Interpretation of Statutes - Principle, known as the 'doctrine of the ongoing statute', can be adopted in instances where it is obvious that the sweep of the Parliamentary intention could be fulfilled only if such an interpretation is adopted

ORDER :

The right to seek pre-arrest bail is a creation of the statute, and the said right can be taken away by the statute itself. In tune with the aforesaid principle, section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'), curtailed the right of an accused alleged of offences committed under the Act to seek pre-arrest bail.

2. Section 18 of the Act was subjected to legal analysis in Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Another [(2018) 6 SCC 454]. Subsequently, section 18A was introduced into the statute. The Supreme Court again considered the issue in the judgment in Prathvi Raj Chauhan v. Union of India and Others [(2020) 4 SCC 727]. The Court held that despite the bar under sections 18 and 18A, in exceptional cases where a prima facie case under the Act is not made out, the bar of section 18 and 18A of the Act will not be attracted.

3. Be that as it may, petitioner is facing an indictment for offences punishable under sections 354A(1)(iv), 509, 294(b) of the Indian Penal Code, 1860, sections 66E and 67A of the Information Technology Act 2000, apart from sections 3(1)(r), 3(1)(s) and 3(1)(w)(ii) of the Act in Crime No.744 of 2022 of the Ernakulam Town South Police Station. He has invoked the jurisdiction of this Court for obtaining pre-arrest bail.

4. Petitioner is the Managing Director of an online news channel called “True T.V.”, which is professed to have a viewership of more than five lakhs. The present crime has a background; without narrating which, the sequence will not be complete.

5. The victim had filed a complaint against her employer another media person, alleging that he was compelling her to videograph her nudity to create a morphed video of a lady minister of the State. The employer of the victim was arrested after registering a crime. Provoked by the arrest of a friend and fellow media person, petitioner telecasted an interview through his online channel. The content shows the petitioner interviewing the husband and father-in-law of the victim. The interview which was aired through petitioner's online media was uploaded on YouTube and circulated through Facebook as well. Alleging that the interview shown by the petitioner is spewing insult, hatred and ill-will against the members of the Scheduled Tribe community, apart from abusing and ridiculing the victim, crime No.744 of 2022 was registered. The said crime has created an apprehension of arrest in the petitioner's mind, and thus this application for pre-arrest bail.

6. Since the maintainability of the bail application was questioned, all the learned counsel addressed the Court on the said issue.

7. Sri. Babu S.Nair, learned counsel for the petitioner, contended that the offences alleged against the petitioner under the IPC and the IT Act are all bailable, while the offences under the Act are prima facie not attracted, and hence the application for pre-arrest bail is maintainable. It was contended that to attract the offences under section 3(1)(r) and section 3(1)(s) of the Act, the insult or intimidation, or abuse must take place not only within public view but should also be in the presence of the victim. Reliance was placed on the decision in E.Krishnan Nayanar v. Dr.M.A.Kuttappan, Member, Kerala Legislative Assembly and Others (1997 CRL L.J. 2036). It was further submitted that the offence under section 3(1)(w)(ii) of the Act will apply only if the offending word, act or gesture is made towards a woman clearly indicating her presence. The learned counsel vehemently contended that admittedly the victim was not present during the interview, and hence the provisions of the Act are not attracted and thus urged this Court to grant pre-arrest bail.

8. Smt.K.Nandhini, learned counsel appearing for the victim, submitted that the petitioner is a Mala Araya, which is a Scheduled Tribe. It was further argued that a perusal of the written text of the interview itself is sufficient to satisfy