Kerala High Court: V.G. Arun J., while dismissing the present appeal clarified on the applicability of Section 438 Criminal Procedure Code, 1973 in an offence under SC/ST (POA) Act.
Brief Facts
Appellants are the accused of offences punishable under Sections 341, 294(b) and 506(i) read with Section 34 of the Penal Code, 1860 and Sections 3(i)(s) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act; ‘SC/ST (PoA) Act’. The prosecution allegation is that on 24-07-2020, the appellants illegally restrained the de facto complainant; a lady belonging to Scheduled Caste community and abused her by calling her caste name. The anticipatory bail application filed before the Special Court was rejected, finding that from the FIS, FIR and other materials, a prima facie case was made out against the accused. The Special Judge further referred to the bar under Section 18A(2) of the SC/ST (PoA) Act to hold the application under Section 438 CrPC to be not maintainable.
Contentions
Counsel for the appellants, C.K. Mohanan, contended that the allegations in the complaint are false and was made at the instigation of the de facto complainant’s employer, who is a political leader. It was further contended that even if the allegations are accepted in their entirety, no serious offence so as to deny anticipatory bail to the appellants is made out.
Special Public Prosecutor, Ambika Devi opposed the prayer for pre-arrest bail and submitted that a hapless lady was illegally restrained, abused, intimidated and insulted in public by calling her caste name and that such acts can, by no stretch of imagination, be termed as petty offences for the purpose of the SC/ST (POA) Act, 1989. The rigor of Section 18 and 18A(2) of the Act was highlighted with the aid of the recent decision of the Supreme Court in Prithvi Raj Chauhan v. Union of India, (2020) 4 SCC 727. It was further pointed out that the Special Judge, after perusing the relevant records have concluded that there exist a prima facie material to attract the alleged offences and that there is no reason for deviation of the present Court as such.
Decision
Concurring with the findings of the lower Court, the Court held, “Anticipatory bail can be granted for offences under the Act only in the event of no prima facie case being made out. The Supreme Court has alerted the courts to be cautious while exercising such power.”[Mohandas C. v. Sub Inspector of Police, 2020 SCC OnLine Ker 4783, decided on 28-10-2020]
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