The bar under Section 18A of the SC/ST Act does not apply if the complaint fails to establish a prima facie case, allowing for anticipatory bail.

J U D G M E N T

Dated this the 13 th day of January, 2022 This is an appeal filed u/s 14 A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the SC/ST Act) against the dismissal of anticipatory bail application filed by the appellant.

2. The appellant is the accused in Crime No.110/2021 of Balussery Police Station. The offences alleged are under Sections 341, 325, 506 of IPC and S 3(1)(s) and 3(2)(va) of the SC/ST Act.

3. The prosecution case in short is that on 27/1/2021 at 1.00 p.m, the accused who is a member of the Scheduled Caste insulted the de facto complainant who is not a member of Scheduled Caste by calling his caste name, wrongfully restrained and threatened to kill him and further kicked on his chest and thereby committed the offence.

4. The appellant moved an application as Crl.M.C.No.974/2021 at the Sessions Court, Kozhikode u/s 438 of Cr.P .C. seeking pre-arrest bail. The learned Sessions Judge dismissed the said application as per the impugned order holding that the application is not maintainable in view of Section 18 of the SC/ST Act. The said order is under challenge in this appeal.

5. Notice has been issued to the victim who has been arrayed as 3 rd respondent. But, there is no appearance.

6. I have heard the learned counsel for the appellant Sri.Shaju Purushothaman and Sri.Aravind V.Mathew, the learned Public Prosecutor.

7. It is true that as per S.18A(2), the provisions of S.438 of Cr.P .C. shall not apply to a case under the Act. However, the Apex Court in Prathviraj Chauhan v. Union of India and Others [(2020) 4 SCC 727] has held that if the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created under Section 18A shall not apply.

8. As stated already, the offences under the SC/ST Act alleged against the petitioner are u/s 3(1)(s) and 3(2)(va). The IPC offences alleged are bailable in nature. The Single Bench of this Court in Jafar Sadhik Thangal v. State of Kerala (2020 (1) KLT 707) and Basheer v. State of Kerala (2020 (2) KLT 790) has held that if the offences under the IPC which is included in the Schedule to the SC/ST Act alleged is bailable offence, then the offence as per S.3(2)(va) for commencing such scheduled IPC offence is also a bailable offence. In order to attract S.3(1)(s), the person not being a member of Scheduled Caste/Scheduled Tribe should abuse any member of a Scheduled Caste or Scheduled Tribe by calling caste name in any place within public view. Thus, the offence should be committed in any place within public view. A reading of FI statement and the scene mahazar would show that the alleged place of incident was within the courtyard of the house of the neighbor of the de facto complainant. Admittedly, it is not a public place. There is no allegation in the prosecution case that the said place of occurrence was within the public view and any other person witnessed the incident. In these circumstances, the basic ingredients of S.3(1)(s) are not attracted. Hence, bar u/s 18A would not apply.

For these reasons, I hold that the petitioner is entitled to pre arrest bail on the following conditions.

(i) The petitioner shall be released on bail in the event of his arrest on executing a bond for ` 1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The petitioner shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of discovery, if any, as and when demanded.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner shall also appear before the investigating officer as and when required by him.

(iv) The petitioner shall not commit any offence of like nature while on bail.

(v) The petitioner shall not make any at