Point of Law: Required knowledge of accused that defacto complainant is a member of Scheduled Caste is well discernible from materials available as ascribed in Section 3(2)(va) of SC/ST Act.

JUDGMENT :

“DURALEX SEDLEX” – the law is hard but it is the law.”

In these appeals this Court is called upon to address the impact of legal bar in granting pre-arrest bail in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as `the SC/ST Act' for convenience].

2. The defacto complainant in Crime No.483/2022 of Koyilandy Police Station is the appellant in Crl.Appeal No.855/2022 and the respondents herein are State of Kerala as well as the accused in the above crime. The challenge raised in this appeal is against order granting anticipatory bail to the accused, as per order in Crl.M.C.No.1221/2022 dated 2.8.2022 by the learned Special Judge, Kozhikode, under the SC/ST Act.

3. Crl.Appeal No.875/2022 is at the instance of the State of Kerala challenging the same order. In this appeal, the 1st respondent is the accused and 2nd respondent is the defacto complainant.

4. I shall refer the parties in these appeals as `defacto complainant', `accused' and `prosecution', hereinafter for brevity and easy reference.

5. Heard Advocate K.V.Bhadrakumari, the learned counsel for the appellant/defacto complainant in Crl.Appeal No.855/2022, Advocate K.Nandini appearing for the 2nd respondent/the defacto complainant in Crl.A.No.875/2022, the learned Senior Public Prosecutor, Sri T.R.Ranjith, as well as Advocate Nirmal.S, who appeared for the accused and the 2nd respondent in Crl.Appeal No.855/2022 and the 1st respondent in Crl.Appeal No.875/2022.

6. The case diary produced by the learned Public Prosecutor is perused. The same unfurls the prosecution case. Precisely the allegation as could be read out from the case diary is that at 6.30 a.m on 17.04.2022 the accused (who does not belong to Scheduled Caste or Scheduled Tribe community) forcefully kissed the defacto complainant (who belongs to a Scheduled Caste community) on the rear side of her neck and thereby intentionally touched the defacto complainant, knowing that she belongs to a Scheduled Caste community, without the consent of the defacto complainant and thereby outraged her modesty. On the above facts, the prosecution alleges commission of offences under Sections 354 A(2), 354A(1)(ii), 354 D(2) of the Indian Penal Code (for short `I.P.C' hereinafter) and under Section 3(2)(va) and 3(1) (w)(i) of the SC/ST Act.

7. The accused, who apprehended arrest at the hands of Koyilandy police, set forth pre-arrest bail plea before the learned Special Judge. The learned Special Judge appraised the same and passed the impugned order whereby the learned Special Judge granted anticipatory bail to the accused.

8. Before addressing the rival arguments, I am inclined to extract the operative portion of the order of bail as under.

“In the result, the bail application is allowed.

(i) The accused shall be released on bail on executing a bond for Rs.50,000/-with two solvent sureties for the like sum in case of arrest by the SHO, Koyilandy Police Station.”

9. While concluding the finding in para.17 of the impugned order, the learned Special Judge observed as under:

“Another important contention raised is that the accused had no knowledge that the victim belongs to a Schedule Caste. For this the learned counsel is relying upon the FI statement. There it is not at all stated that the act of the accused was with knowledge that the victim belongs to a member of schedule caste or schedule tribe. It is further to be noted that the copy of the SSLC book of the accused would reveal that he was a social worker who refuse to put his caste name in the SSLC Book. It is highly unbelievable that the touching or hugging as alleged by the victim that the accused had a knowledge about her caste, the accused is a reformist and is engaged in social activities and he is against the caste system. He is writing and fighting for a casteless society. In such a circumstance it is highly unbelievable that he will touch the body of the victim fully knowing that she is member of sch