2024 Supreme(SC) 688

SUPREME COURT OF INDIA
J.B. Pardiwala, Manoj Misra, JJ.
Shajan Skaria – Appellant
VERSUS
The State of Kerala & Anr. – Respondents
Criminal Appeal No. 2622 OF 2024 (Arising Out Of SLP (Crl.) No. 8081 of 2023)
Decided On : 23-08-2024

IMPORTANT POINTS
(1) Anticipatory bail – Section 18 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 does not impose absolute fetter on power of courts to grant anticipatory bail.
(2) All insults or intimidations to a member of Scheduled Caste or Scheduled Tribe will not amount to an offence under Act, 1989 unless such insult or intimidation is on the ground that victim belongs to Scheduled Caste or Scheduled Tribe.
(3 ) Arrest cannot be made merely because it is lawful to do.
(4) A penal statute must receive strict construction.

Headnote:

(A) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 18 and 18-A – Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Anticipatory bail – Grant of – Legal bar – If complaint does not make out a prima facie case for applicability of provisions of Act, 1989 then bar created by Sections 18 and 18-A(i) shall not apply and court would not be precluded from granting pre-arrest bail to accused persons – Section 18 of Act, 1989 does not impose absolute fetter on power of courts to examine whether a prima facie case attracting provisions of Act, 1989 is made out or not – Section 18 bars remedy of anticipatory bail only in those cases where a valid arrest of accused person can be made as per Section 41 read with Section 60A of Cr.P.C. – Bar under Section 18 of Act, 1989 would apply only to those cases where prima facie materials exist pointing towards commission of offence under Act, 1989 – It is only when a prima facie case is made out that pre-arrest requirements as stipulated under Section 41 of Cr.P.C. could be said to be satisfied. (Paras 35, 41, 46 and 48)

(B) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 18 – Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Constitution of India – Article 226 – Anticipatory bail – Grant of – Legal bar – If accused puts forward case of malicious prosecution on account of political or private vendetta then same can be considered only by High Court in exercise of its inherent powers under Section 482 of Code or in exercise of its extraordinary jurisdiction under Article 226 of Constitution – If all ingredients necessary for constituting offence are borne out from complaint, then remedy of anticipatory bail becomes unavailable to accused – Duty to determine prima facie existence of case is cast upon courts with a view to ensure that no unnecessary humiliation is caused to accused – Courts should not shy away from conducting a preliminary inquiry to determine if narration of facts in complaint/FIR in fact discloses essential ingredients required to constitute an offence under Act, 1989 – Application of judicial mind should be independent and without being influenced by provisions figuring in complaint/FIR – Minimum threshold for determining whether an offence under Act has been committed or not is to ascertain whether all ingredients which are necessary to constitute offence are prima facie disclosed in complaint or not – An accusation which does not disclose necessary ingredients of offence on a prima facie reading cannot be said to be sufficient to bring into operation bar envisaged by Section 18 of Act, 1989. (Paras 49, 50 and 51)

(C) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 3(1)(r), 3(1)(u) and 18 – Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Anticipatory bail – Grant of – Legal bar – Appellant is not a member of Scheduled Caste and he is alleged to have published and disseminated a video containing disparaging content about complainant with a view to publicise, abuse and insult complainant – All insults or intimidations to a member of Scheduled Caste or Scheduled Tribe will not amount to an offence under Act, 1989 unless such insult or intimidation is on the ground that victim belongs to Scheduled Caste or Scheduled Tribe – There is nothing in transcript of uploaded video to indicate even prime facie that those allegations were made by appellant only on account of fact that complainant belongs to a Scheduled Caste – Appellant is at inimical terms with complainant – His intention may be to malign or defame him but not on the ground or for reason that complainant belongs to a Scheduled Caste – Not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation – Complainant could not have invoked provisions of Act, 1989 only on premise that he is member of Scheduled Caste, more so, when a prima facie conjoint reading of transcript of Video and complaint fails to disclose that actions of appellant were impelled by caste identity of complainant – Video has nothing to do in general with members of Scheduled Caste or Scheduled Tribe – His target was just complainant alone – Offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or enmity against members of scheduled castes or scheduled tribes as a group and not as individuals – Impugned order passed by High Court set aside and anticipatory bail granted to appellant. (Paras 58, 60, 61, 74, 77, 88 and 89)

(D) Criminal Procedure Code, 1973 – Section 438 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 482] – Anticipatory bail – Concept and evolution – Purpose behind incorporating Section 438 in Cr.P.C. was to recognise importance of personal liberty and freedom in a free and democratic country – Legislature was keen to ensure respect for personal liberty by pressing in service age-old principle that an individual is presumed to be innocent till he is found guilty by court – Liberty postulates creation of a climate wherein there is no suppression of human spirits. (Paras 18 and 19)

(E) Criminal Procedure Code, 1973 – Sections 41, 41A and 60A [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 35 and 62] – Arrest – Riders – Arrest cannot be made merely because it is lawful to do so – Exercise of power to arrest has been qualified by a twofold requirement – first, of having a reasonable belief that accused person has committed offence and secondly, that there is a need to arrest accused person – Arrest can be effected if there is a reasonable complaint, credible information or reasonable suspicion and police officer has a reason to believe that such offence has been committed by accused person and arrest is necessary – Words ‘complaint’, ‘information’ and ‘suspicion’ are qualified by adjectives ‘reasonable’, ‘credible’ and ‘reasonable’ respectively – Similarly, police officer is required to have a ‘reason to believe’ based on information he has received that accused person has committed alleged offence. (Paras 43 and 44)

(F) Protection of Civil Rights Act, 1955 – Section 7(1)(d) – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(1)(r) – Humiliation – Humiliation is not so much a physical injury but is in nature of a psychological injury that leaves a permanent scar on heart – There is distinction between systemic and regimented humiliation on one hand as distinguished from isolated incidents of humiliation on other – Resistance is internal to humiliation – Those who are humiliated also inherently possess capacity to protest against it – However, those who protest also run risk of inciting opposition from those who want to push the traditionally humiliated groups to margins – Term ‘humiliation’ as it appears in Section 3(1)(r) of Act, 1989 must be construed in a way that it deprecates infliction of humiliation against members of Scheduled Castes and Scheduled Tribes wherein such humiliation is intricately associated with caste identity of such members. (Paras 63, 67, 68 and 70)

(G) Interpretation of Statute – A penal statute must receive strict construction – A principle of statutory interpretation embodies policy of law, which is in turn based on public policy – Court presumes, unless contrary intention appears, that legislator intended to conform to this legal policy – A principle of statutory interpretation can be described as a principle of legal policy formulated as a guide to legislative intention. (Para 82)

Facts of the case:

Present appeal arises from judgment and order dated 30.06.2023 passed by High Court of Kerala at Ernakulam in Criminal Appeal filed by appellant herein by which High Court dismissed appeal and thereby affirmed order dated 16.06.2023 passed by Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ernakulam Division declining to grant anticipatory bail to appellant herein in connection with First Information Report lodged by the complainant (Respondent No. 2) for offence punishable under Sections 3(1)(r) and 3(1)(u) respectively of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Findings of Court:

High Court in its impugned order has observed “materials on record do indicate that the video is intended to insult and humiliate the second respondent.”High Court may be right in observing that intention of appellant could have been to insult and humiliate the complainant but the High Court failed to consider whether such insult or humiliation was on account of or for reason that the complainant belongs to Scheduled Caste. Is it the case of the complainant that had he not belonged to a Scheduled Caste, the appellant would not have levelled the allegations? The answer lies in the question itself.

Result : Appeal allowed.