Knowledge of the caste of the complainant is essential for establishing an offense under Section 3(2)(va) of the SC/ST (POA) Act.

JUDGMENT

Dated this the 16th day of June, 2022 This Criminal Appeal is filed challenging an order passed by Court of Sessions, Kasaragod (for short ‘the court below’) in Criminal M.P. No.967/2022. The above Crl.M.P. was filed under Section 438 of the Code of Criminal Procedure , 1973 (for short ‘Cr.P.C.’) seeking for pre-arrest bail by accused 1 and 2 in Crime No. 134/2022 of Nileshwaram Police Station. Originally in Crime No.134/2022 registered at Neeleswaram Police Station, the offences under Sections 341,323, 324, 294(b), 354A(1)(iv) read with Section 34 of Indian Penal Code, 1860 (for short ‘the IPC’) and Section 3 (1) (s) and 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989 (for short ‘SC/ST (POA) Act’) were incorporated. Later on investigation was proceeded with and by report of the Investigating Officer (1) (s) was removed from the purview of the investigation. Therefore, the only offence under the SC/ST (POA) Act now stands alleged against the appellants is one under (2) (va). The court below has dismissed the application seeking pre-arrest bail, for the reason that in view of Section 18 and 18-A of SC/ST (POA) Act, it is barred from exercising jurisdiction under Section 438 Cr.P.C.

2. Sri.P.Sreekumar, the learned counsel has contended that the appellants cannot be taken to have knowledge of the caste of which the 2nd respondent is a member at the relevant time when the offences were allegedly committed. According to him, in order to attract an offence under Section 3 (2) (va), there must be an allegation that the appellants as accused had committed the scheduled offences on the ground that the de facto complainant belongs to Scheduled Caste or Scheduled Tribe. He has also cited a Ruling of the Apex Court to rest his contention. But, the judgment cited being laid in the context of the legal position available prior to amendment of (2) (va) of SC/ST (POA) Act in the year 2016 cannot be relied on in the case on hand. As per amendment brought in the provision in the year 2016, knowledge of the caste to which the de facto complainant belongs alone is sufficient to attract an offence under (2)(va) of SC/ST (POA) Act.

3. As per the prosecution case, there was an understanding among the appellants and the 2nd respondent to adjust the money due to the appellants as costs of furnitures purchased by them in the charges for installation of surveillance camera at the 2nd respondent’s house. But, the 1st appellant arrived at the furniture shop of the 2nd respondent and demanded the money due as charges for installation of the camera and then the former lost temper and thereby committed the offences. FIR was registered in that context.

4. According to the learned counsel for the 2nd respondent, there was an allegation in the FIS that her caste name was called and therefore, the appellants cannot be heard to say that they had no knowledge about her caste. But FIS was recorded following the filing of a complaint before the Deputy Superintendent of Police. In the said complaint there was no allegation that caste name of the 2nd respondent was called. However, the offence under Section 3 (1)(s) of SC/ST (POA) Act is no longer there in the crime registered. Only the offence under (2) (va) of SC/ST (POA) Act is there. Therefore, there is absolutely no basis to take a view that the appellants had knowledge about the caste of the 2nd respondent at the relevant time of the alleged commission of offences under the IPC. Therefore, the offence under (2) (va) is improbable to attract. The court below has not applied it’s mind to the above aspects while declining to exercise jurisdiction under Section 438 Cr.P.C. and dismissing the application. This Court finds it expedient in the interest of justice to reverse the order.

In the result, Crl.Appeal is allowed. The impugned order is set aside. Crl.M.P. stands allowed. The investigating officer shall enlarge the appellants on bail in the event