Knowledge of a victim's SC/ST status is essential for establishing culpability under amended Section 3(2)(v) of the SC/ST Act for serious offences.

J U D G M E N T

This Criminal Appeal is instituted challenging the order in Crl.M.P.No.392 of 2020 on the files of the Special Court for trial of cases arising under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Mannarkkad, in terms of which an application for anticipatory bail preferred by the appellant who is the sole accused in Crime No.722 of 2020 of Palakkad Town South Police Station was dismissed. 2. The accused is a Christian working as the Centre Head of an institution. The de facto complainant in the case who belongs to a Scheduled Caste was an office staff in the institution. The accusation against the accused is that one day during February 2019, the accused committed rape on the de facto complainant inside the office. It is also alleged that subsequently, by threatening the de facto complainant that the accused will upload her obscene photographs, the accused continued to have sexual intercourse with the de facto complainant and impregnated her. The offences alleged against the accused are those punishable under Sections 376(2)(n) and 506(i) of the Indian Penal Code (the IPC) and Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989 (the Act). The case of the accused is that he is innocent of the allegations.

3. As noted, the application for anticipatory bail preferred by the accused before the Special Court has been dismissed on merits, in terms of the impugned order. In so far as Section 438 of the Code of Criminal Procedure does not apply to persons allegedly committing offence under the Act, an application for anticipatory bail could be entertained by the court only if the materials on record do not prima facie disclose the offence under the Act. As such, before considering the merits of the matter, it is necessary to examine the question whether the materials on record would prima facie disclose the offence under the Act.

4. The offence under the Act alleged against the accused is one punishable under Section 3 (2)(v). (2) (v) is a provision amended in terms of Act 1 of 2016. (2)(v) of the Act, as amended in terms of Act 1 of 2016 reads thus:

Section 3 (2). Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

x x x x x x x x x x (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine;”

The learned Public Prosecutor has made available the statement given by the de facto complainant and submitted that the de facto complainant was recruited in the institution as she belongs to a Scheduled Caste and therefore, the accused who is the Head of the Institution cannot be heard to contend that he had no knowledge about the caste status of the victim. The relevant portion of the statement relied on by the Public Prosecutor reads thus:

ൻ “Nehru Acadamy of Civil Services എ്ᩐ സᩝ᪋പനതᩈ᪌നᩙ᪓ നഹെഡുമᩝ᪋ണണ. ഞᩝ᪋

ർ SC വᩈ᪌ഭᩝ᪋ഗകᩝ᪋രᩈ᪌യᩝ᪋ണണ എ്ᩐണ എന്ᩐ ഇᩙ᪓ വവ നചയണ ജജᩝ᪋ലᩈ᪌നകടത ജജᩝ᪋സണ വᩈ᪌്ᩜനണ അറᩈ᪌യᩝ᪋ാᨱ .”

The Apex Court has considered the scope of the offence punishable under Section 3 (2)(v) of the Act inAsharfi v. State of Uttar Pradesh [ 2017 KHC 6845 ]. Paragraph 6 of the said judgment reads thus:

“6. S.3(2)(v) of the SC / ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words “.........on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” have been substituted with the words “......knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is commit