The bar under Section 18 of SC/ST (POA) Act does not apply if no prima facie case is established, allowing anticipatory bail.

JUDGMENT

This is an appeal filed under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [SC/ST (POA) Act].

2. The petitioners are accused in Crime No.866 of 2023 of Elathur Police Station. That crime was registered alleging offences punishable under Section 506 read with Section 34 of the Indian Penal Code, 1860 ( IPC ) and Sections 3 (1)(f) and 3(1)(s) of the SC/ST (POA) Act. The allegation constituting the aforesaid offences are that the petitioners, who belonged to an upper caste, obstructed the pathway being used by the de facto complainant to reach his house with the knowledge that he belongs to a Scheduled Caste. It was also alleged that the petitioners erected a fence to block the pathway and the de facto complainant was threatened to kill and also hurled abusive and ridiculing words stating his caste name.

3. The appellants filed Crl.M.C.No.1951 of 2023 before the Sessions Court, Kozhikode. As per the order dated 21.11.2023, the Sessions Court dismissed their application for anticipatory bail. Aggrieved by the said order, this appeal has been filed.

4. Heard the learned counsel for the appellants and the learned Public Prosecutor.

5. Despite giving notice to the de facto complainant, he did not choose to appear before the Court.

6. Annexure A is a copy of I.A.No.2 of 2023 in O.S.No.393 of 2023 pending before the Munsiff’s Court-I, Kozhikode. Annexure B is a copy of the order dated 04.10.2023 of the Munsiff restraining the de facto complainant and a few others from trespassing into the property of one Smt.Draupadi, which according to the appellants, is the property in dispute. It is the contention of the appellants that in retaliation to the said civil dispute, the 2^nd respondent lodged a false complaint against the appellants.

7. The aforesaid submissions of the learned counsel for the appellants were controverted by the learned Public Prosecutor. It is further submitted that in the investigation, causing of obstruction in the pathway used by the de facto complainant and his relatives and also abusing and threatening them by the appellants have been revealed. The learned Public Prosecutor accordingly submitted that the bar under Section 18 of the SC/ST (POA) Act gets attracted in this case and hence no anticipatory bail can be granted to the appellants.

8. From the F.I. statement or the report of the investigating officer, which are made available for my perusal, it is not able to find that the de facto complainant and his relatives were abused by calling their caste name within public view. If so, it cannot prima facie be said that an offence under Section 3 (1)(s) of the SC/ST (POA) Act was committed by the appellants.

9. As stated, a civil suit between the parties concerning the pathway in dispute is pending. There is an order of temporary injunction in that suit against the de facto complainant and others. It is in respect of that pathway, there occurred the alleged incident, which resulted in registration of the present crime. An offence under Section 3 (1)(f) of the SC/ST (POA) Act will be attracted if the obstruction is in respect of a property owned, possessed or allotted to a member of the Scheduled Caste or a Scheduled Tribe. When the suit between the parties is pending before the civil court, it is possible to find prima facie that the alleged act of obstructing the pathway is an offence under (1)(f) of the SC/ST Act.

10. InSubhash Kashinath Mahajan v. State of Maharashtra [(2018) 6 SCC 454] , the Apex Court after considering the provisions of the SC/ST Act and various decisions including the one inN.T.Desai v. State of Gujarat [1997 (2) GLR 942], issued a few guidelines for dealing with the applications for anticipatory bail, arrest of public servant and quashing of FIRs about offences under the SC/ST Act. In Union of India v. State of Maharashtra [(2020) 4 SCC

761], a three-judge Bench of the Apex Court reviewed the aforesaid decision and directions Nos. ii