C.K. Vinod & Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **CRL.A.No.1029 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 1570/2019 OF DISTRICT COURT & SESSIONS COURT,THRISSUR** **CRIME NO.404/2019 OF Cherpu Police Station , Thrissur** ## **APPELLANT/S:** - **1 C.K.VINOD, AGED 42 YEARS, S/O. KUNJUKUTTY, CHITTIPARAMBIL HOUSE, CHERPU WEST, THRISSUR TALUK, THRISSUR DISTRICT-680561.** - **2 M. SUJITH KUMAR, AGED 30 YEARS, S/O. GOPINATH, MENOTH HOUSE, CHERPU WEST, THRISSUR TALUK, THRISSUR DISTRICT-680561.** - **3 K.G. SATHEESH, AGED 38 YEARS, S/O. GOPALAN, KOOKAPARAMBIL HOUSE, INJAMUDI, THRISSUR TALUK, THRISSUR DISTRICT-680564.** - **4 PRADEEP VALIYANGOTTU, AGED 44 YEARS S/O. KUNJAN, VALIYANGOTTU HOUSE, PARAKOVIL, CHERPU P.O., THRISSUR TALUK- 680561.** - **5 SANDEEP P., AGED 32 YEARS S/O. RAMDAS, KANJULLY HOUSE, CHERPU, THRISSUR TALUK, THRISSUR DISTRICT-680561.** - **6 EDISON P.J., AGED 32 YEARS S/O. JOSE, PLAKKAL HOUSE, CHEVOOR P.O., THRISSUR TALUK, THRISSUR-680027.** - **7 FAISAL P.S., AGED 30 YEARS S/O. SALEEM, PUTHIYAVEETIL HOUSE, CHERPU, THRISSUR TALUK, THRISSUR DISTRICT-680561.** - **8 JOSE CHAKKERI, AGED 30 YEARS S/O. JOHNSON, CHAKKERI HOUSE, CHEVOOR, THRISSUR TALUK, THRISSUR-680027.** - **9 JHON J. ALAPPADAN, AGED 36 YEARS S/O. GEORGE, ALAPPADAN HOUSE, CHEVOOR, THRISSUR TALUK THRISSUR-680027.** - **10 MANIKANTAN K.R., AGED 45 YEARS, S/O. RAGHAVAN, KARYADAN HOUSE, CHERPU, THRISSUR TALUK, THRISSUR680561.** **11 GEORGE ANTO, AGED 50 YEARS S/O. ANTONY, ELUVATHINGAL HOUSE, CHEVOOR, THRISSUR TALUK, THRISSUR-680027.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.THOMAS J.ANAKKALLUNKAL SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRI.C.R.REKHESH SHARMA SRUTHY N. BHAT SRI.P.M.RAFIQ** ## **RESPONDENT/S:** **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 ADDL.R2 SMT. GEETHA GOPI, 44 YEARS, W/O GOPI, KAKKAD HOUSE, GURUVAYUR DESOM, GURUVAYUR VILLAGE, GURUVAYUR PO, PIN-680101. MOBILE NO-9446106565.** **ADDITIONAL SECOND RESPONDENT IMPLEADED VIDE SIDE LEAF AS PER ORDER DATED 19/9/2019 IN CRL.MA NO.03/2019.** **R1 BY SRI.P.NARAYANAN, SENIOR GOVT. PLEADER** ## **OTHER PRESENT:** ## **SRI. KALEESWARAM RAJ, AMICUS CURIAE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **(C.R)** ## **ALEXANDER THOMAS, J.** ================== Crl.Appeal No.1029 of 2019 ================== Dated this the 20[th] day of December, 2019 ## **J U D G M E N T** Aggrieved by the order dated 19.8.2019 rendered by the Sessions Court, Thrissur, in Crl.M.C.No. 1570/2019, dismissing the plea of the appellants herein for grant of anticipatory bail in Crime No. 404/2019 of Cherpu Police Station, Thrissur, they have preferred the instant Criminal Appeal under Sec.14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, [SC/ST POA Act, 1989] as amended. The appellants herein have been arrayed as the accused persons in the above Crime No. 404/2019 of Cherpu Police Station, which has been registered for offence punishable under Sec. 3(1)(u) of the SC/ST POA Act, 1989 and Secs.143, 147 and 149 of the I.P.C., on the basis of the first information conveyed through the petition dated 27.7.2019 submitted by the 2[nd] respondent lady defacto complainant. 2. The prosecution case in short is as follows: That the 2[nd] respondent lady defacto complainant belongs to Scheduled Caste (SC) community and that she has been duly elected Crl.Appeal 1029/19 - : 4 :- as the Member of the Legislative Assembly (MLA) representing the Nattika Constituency, which is under scheduled caste representation. That the 2[nd] respondent on 27.7.2019 had conducted a sit-in dharna at the Civil Station, Thrissur, to protest against the inaction and negligence on the part of the PWD authorities in not repairing the roads, which were in a extremely bad condition inasmuch as the PWD authorities have not even bothered and not even taken care to fill up the various potholes in the PWD roads and when she got assurance that immediate remedial measures would be taken by the Departmental authorities and after discussion with the authorities, she had left the venue of the sit-in dharna at about 1.30 p.m. on that day. That after she had left the scene, the accused persons, who are Youth Congress activists, have come to the same venue and made a big scene by washing the place with cow dung water where the 2[nd] respondent MLA had sat for the sit-in dharna and then had cleaned it with broom sticks and raised slogans against her and that the accused persons have done the abovesaid act of pouring cow-dung water in the place where she had sat earlier and cleaned it with broom stick to denigrate her by causing ill-will against her who is a member of the scheduled caste community. Further it is stated that if the accused Crl.Appeal 1029/19 - : 5 :- persons show this kind of ill-will, even as against the person who is an MLA, then it shows the deplorable condition of mind set of such people and that such an action is a matter of great shame to a State like Kerala which is said to be highly advanced in literacy and culture. It is on this basis that the abovesaid FIR has been registered for offences punishable under Sec. 3(1)(u) of the SC/ST POA Act, 1989 and Sec. 143, 147, read with Sec. 149 of the I.P.C. 3. The appellants herein moved for grant of anticipatory bail under Sec. 438 of the Cr.P.C. by filing Crl.M.C.No. 1570/2019 before the Sessions Court, Thrissur and the said Court has taken the view as per the impugned order dated 19.8.2019 that since a prima facie case is made out as against the accused persons under Sec. 3(1)(u) of the SC/ST POA Act, 1989 as amended, the said court is thus not having jurisdiction and competence to consider the plea of grant of anticipatory bail on merits in view of the statutory bar engrafted in Sec.18 and Sec.18A of the abovesaid Act. It is this rejection order rendered on 19.8.2019 that is under challenge in this Criminal Appeal. 4. Heard Sri.P.Vijayabhanu, learned Senior Counsel instructed Sri.M.Revikrishnan, learned counsel appearing for the appellants, Sri.P.Narayanan, learned Prosecutor appearing for the Crl.Appeal 1029/19 - : 6 :- respondent State and Sri. Kaleeswaram Raj, learned Amicus Curiae. 5. At the outset, it has to be noted that the appellants have taken up a specific plea that he 1[st] and 10[th] appellants herein belong to scheduled caste community and that therefore, the abovesaid offence alleged under SC/ST POA Act, 1989, as amended, cannot be pressed into service as against them in any view of the matter. The appellants have produced as Anxs.A and B community certificates issued by the Thrissur Taluk office, wherein it is stated that the 1[st] applicant herein (C.K.Vinod) and 10[th] appellant herein (K.R.Manikantan) belong to scheduled caste community. 6. The preliminary issue to be decided in this case is one of jurisdiction and competence of this Court to consider the plea of anticipatory bail on merits, more particularly, as to whether the statutory bars engrafted as per Secs.18 & 18A of the abovesaid Act would apply in the facts of this case. Sec. 18 of the SC/ST POA Act, 1989, reads as follows: _“Sec. 18: Section 438 of the Code not to apply to persons committing an offence under the Act.-- Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”_ ## Sec. 18A of the above Act reads as follows: _**“Sec.18A: No enquiry or approval required.--** (1) For the purposes of this Act,--_ - _(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or_ Crl.Appeal 1029/19 - : 7 :- - _(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,_ _against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply._ _(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”_ 7. It has been held by the Apex Court and various High Courts including this Court that where not even a prima faice case of substance for offences as per SC/ST POA Act, 1989 is disclosed in the impugned criminal proceedings, then the statutory bar engrafted as per Sec.18 of the abovesaid Act will not have any application and in such cases, the Session Courts/High Courts will have jurisdiction and competence to consider the plea of anticipatory bail as per Sec. 438 of the Cr.P.C., on merits. But, if on the other hand, prima facie case of substance for offences as per the said Act is made out by the prosecution, then certainly the said statutory bar would apply, in which case, there will be no jurisdiction or competence to consider the plea for anticipatory bail under Sec. 438. Of course, even in such a scenario, the said bar would apply only for bail applications filed under Sec. 438 of the Cr.P.C. (for pre-arrest bail) and not in the case of bail applications filed under Sec. 437 or Sec.439, as the case may be. Crl.Appeal 1029/19 - : 8 :- 8. The 2-Judges Bench of the Apex Court in the decision in the case between _**Dr.Subhash Kashinath Mahajan v. State of Maharashtra & Ors.**_ [(2018)6 SCC 454], the Apex Court has inter alia held that there is no absolute bar against the grant of anticipatory bail in cases under the SC/ST POA Act, if no prima facie case is made out or where, on judicial scrutiny, the complaint is found prima facie mala fide. Certain other directions have also been issued by the Apex Court in _**Dr.Subhash Kashinath Mahajan's case**_ supra. The said directions are as follows: [(2018)6 SCC 454, para 83]. _“i) Proceedings in the present case are clear abuse of process of court and are quashed._ _ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);_ _iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention._ _iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.”_ ## 9. The matter in _**Dr.Subhash Kashinath Mahajan's**_ _**case**_ supra was impugned in a Review Petition (Criminal), which was heard and decided by a 3-Judges Bench of the Apex Court. The 3- Crl.Appeal 1029/19 - : 9 :- Judges Bench of the Apex Court in the judgment dated 1.10.2019 in the said Review Petition (Crl).No.228/2018 in the case between _**Union of India v. State of Maharashtra**_ , has allowed the main pleas in the Review Petition, but the same has not affected the abovesaid legal position regarding the scope of the bar against the plea for anticipatory bail. 10. A reading of paragraph No.40 of the abovesaid decision rendered by 3-Judges Bench of the Apex Court in Review Petition (Crl) No.228/2018 (arising out of Crl.Appeal No. 416/2018) would make it clear that the learned Attorney General has indeed taken the stand on behalf of the Union Government that the possibility of false cases can be taken care of by the courts under Sec. 482 of the Cr.P.C. and that in case no prima facie case is made out, the courts can always consider the grant of anticipatory bail and the power of quashing in appropriate cases, etc. It will also be pertinent to refer to paragraphs 54 and 57 of the said 3-Judges Bench decision in the Review Petition, which read as follows: _“54. The guidelines in (iii)and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221. The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/St Act of 1989, in that case, the bar created under section 18 on the grant of_ Crl.Appeal 1029/19 - : 10 :- _anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above. In Kartar Singh (supra), a Constitution Bench of this Court has laid down that taking away the said right of anticipatory bail would not amount to a violation of Article 21 of the Constitution of India. Thus, prima facie is appears that in the case of misuse of provision, adequate safeguards are provided in the decision mentioned above._ **==> picture [160 x 7] intentionally omitted <==** _57. In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568]”_ 11. Hence now it has been categorically held and declared by the Apex Court in the abovesaid 3-Judges Bench decision in the Review Petition (Crl), that the consistent view of the Apex Court is that if prima facie case has not been made out attracting SC/ST Act, 1989, then the bar created under Sec.18 on the grant of anticipatory bail is not attracted and that the misuse of the provisions of the Act is thus intended to be taken care of on that basis. So the main issue to be decided in this case is that, if the allegations raised in the abovesaid prosecution case are assumed to be broadly true, then whether any prima facie case or substance as far as the offence as per SC/ST POA Act, 1989 has been made in the instant case. The abovesaid dictum laid down by the Apex Court would be applicable not only to assess and evaluate about the scope of the bar engrafted in Sec. 18 of the Act, but also with reference to the bar contained in Crl.Appeal 1029/19 - : 11 :- Sec. 18A of the amended provision of the Act. The amended provision of Sec. 18A of the Act has not made any substantial difference compared to the provision contained in Sec. 18 and if prima facie case or substance is not made out, then the bar under both Sec. 18 and 18A of the Act will not apply. 12. The investigating officer in this case has filed a report through the learned Prosecutor, wherein it is _inter alia_ stated in paragraph No.4 on page 3 thereof that the abovesaid C.K.Vinod (1[st] appellant herein- accused No.3) and K.R.Manikantan (10[th] appellant herein – accused No.10), belong to scheduled caste communities. Further, it is also stated that the 2[nd] respondent lady defacto complainant belongs to scheduled caste community and that she has been duly elected as MLA representing the Nattika constituency, which is under scheduled caste reservation. Since the 1[st] appellant and the 10[th] appellant belong to scheduled caste community, it has to be held at the outset that the offence as per Sec. 3(1)(u) of the SC/ST POA Act, which is the main substantive offence in this case, cannot be invoked as against them. Sec. 3(1)(u) of the SC/ST POA Act, 1989, as amended has been incorporated as per the Amendment Act, 1 of 2016, w.e.f. 26.1.2016. Sec. 3(1)(u) of the abovesaid reads as follows: Crl.Appeal 1029/19 - : 12 :- _“ -- Sec. 3: Punishments for offences of atrocities. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--_ **==> picture [159 x 6] intentionally omitted <==** _(u) by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes;_ **==> picture [159 x 7] intentionally omitted <==** _shall be punishable with imprisonment for a term, which shall not be less than six months but which may extend to five years and with fine.”_ 13. The main contentions urged by the appellants are as follows: Firstly that even going by the admitted prosecution allegations in the FIS and the FIR, it can be seen that the 2[nd] respondent MLA had left the scene even before the accused persons had reached there and that the 2[nd] respondent was thus not even present in the vicinity of the scene of occurrence when the alleged acts were said to have been done by the accused persons. Further that this Court has already held in the decision rendered on 10.8.2012 in Crl.M.C.Nos. 1365 and 1517 of 2011, in the case between _**Gireeshkumar v. State of Kerala**_ [2012 (3) KLT 901] has dealt with a similar case, wherein the main issue raised was as to whether the alleged sprinkling of cowdung water in the office premises as part of purification ceremony to remove the impurities left over by the retiring employee (defacto Crl.Appeal 1029/19 - : 13 :- complainant therein) who is a scheduled caste member, would amount to “atrocity” or offence as contemplated under Sec. 3(1)(ii) & 3(1)(x), as it stood then. Further that the specific allegation of the 2[nd] respondent is that by the act of the accused persons in pouring cowdung water and then cleaning it with broom stick, etc. and calling out slogans against her, the accused persons have humiliated and denigrated her caste-wise. In that regard, it is pointed out that the specific allegation is that after the amendment of the abovesaid Act, it can be seen from a reading of Clauses (a) to (s), (w), (y), (z) to (zc) of Sec. 3(1) on the one hand, vis-a-vis the provisions contained in clause (u) of Sec. 3(1) would reveal that the former provisions would come into play when the individual member of the scheduled caste/ scheduled tribe is insulted or humiliated, whereas the latter provision, which, as in the instant case, is one as per Sec. 3(1)(u) will apply only when the alleged act is one which is directed against the members of the SC or ST as the case may be, as a whole group and not merely as against the individual victim, who is a member of the said community. That in the instant case, since the allegation of the lady defacto complainant is only to the effect that by the abovesaid acts the accused persons have humiliated or denigrated her Crl.Appeal 1029/19 - : 14 :- individually, caste-wise, etc., the vital requirement of Sec. 3(1)(u) will not be attracted and therefore, no offence is made out. That since the main substantive offence is the one as per Sec. 3(1)(u) and the other offences in the I.P.C. are only those in relation to unlawful assembly, no case is made out against the appellants, etc. On this basis, it is contended by the appellants that since no prima facie case for the offence as per SC/ST POA Act, has been disclosed against the appellants in this proceedings, the statutory bar contained in Sec. 18 and Sec.18A of the said Act cannot be pressed into service by the prosecution and that therefore, the sessions court has committed a grave illegality in holing to the contrary. Consequently, it is urged that this Court has competence to grant anticipatory bail to the appellants herein. The appellants have a case that the FIR itself would disclose that none of the names of the applicants herein has been incorporated therein, except stating that the accused persons are identifiable by sight and that the investigating agency has not been able to get any materials whatsoever to connect the appellants to the instant crime. 14. Per contra, the learned Prosecutor would point out that the bar under Secs. 18 and 18A of the SC/ST POA Act would apply in Crl.Appeal 1029/19 - : 15 :- this case and that therefore this Court is denuded of the jurisdiction and competence to consider the plea for grant of anticipatory bail under Sec. 438 of the Cr.P.C.. Further the prosecution would argue that the core of the factual allegations in the FIS/FIR will disclose the offence as per Sec.3(1)(u) of the abovesaid Act and that what is to be adjudged is as to whether the said factual allegations made in the FIR would amount to acts, which otherwise could be held to be promoting or attempting to promote feelings of enmity, hatred or ill-will against the members of the SC/ST community and if such a case is made out, merely because the 2[nd] respondent lady defacto complainant has stated that by the said act, the accused persons have humiliated and denigrated her, will not take away the effect of the offence. So also, it is pointed out that even the 2[nd] respondent has alleged that she has been denigrated caste-wise (എന� ജ�ത�യമ�യ� അധ�ക�പ�ച�) and that any reasonable prudent man on an assessment of the core factual allegations made therein can only reach the conclusion that the acts would amount to promoting or attempting to promote feelings of hatred or ill-will, not only on individual member of the scheduled caste community, to whom it was then directed, but also it would have the effect of promoting such feelings against the members of the Crl.Appeal 1029/19 - : 16 :- SC community as a whole group and therefore it cannot be contended for a moment that no offence as per Sec. 3(1)(u) of the SC/ST POA Act is disclosed in this case. Hence it is pointed out that since prima facie case of substance as per the SC/ST POA Act, is so made out, the statutory bar under Sec.18 and 18A would apply. 15. This Court in the decision rendered on 10.8.2012 in _**Gireeshkumar's case**_ supra [2012 (3) KLT 901], has dealt with case where the defacto complainant belonged to SC community and he retired from service as Inspector General of Registration and a day after his retirement, some of the employees in his erstwhile office had allegedly sprinkled with cow-dung water in the office premises which was earlier occupied by him, to remove impurities caused by the defacto complainant, who is a member of the SC community and it was alleged that the said act of the accused persons would constitute the offence as per Sec.3(1)(x), and 3(1)(ii) of the abovesaid Act as it stood at that relevant time. The offence as per Sec. 3(1)(ii) & 3(1)(x) of the SC/ST POA Act, as it stood then, provided as follows: _Sec.3_ _**Punishments for offences of atrocities** : (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-_ _(i) .... xxx xxx xxx_ _(ii) acts with intend to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping_ Crl.Appeal 1029/19 - : 17 :- _excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;_ **==> picture [159 x 6] intentionally omitted <==** _(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view._ _xxx xxx_ _shall be punishable with imprisonment for a term, which shall not be less than six months but which may extend to five years and with fine.”_ 16. This Court held in the above decision that the word, “excreta” etc. occurring in Sec. 3(1)(ii) would only include within its ambit, human excreta and not the expulsion from any animal like cow dung and further that such excreta or any other obnoxious substance should have been dumped in the premises or neighbourhood of the defacto complainant/victim, who belongs to SC/ST community. It was held therein that since the alleged scene of occurrence in that case was a Government office, the said act cannot be said to have been done in the premises or neighbourhood of the defacto complainant concerned, and as it is not the premises or neighbourhood of the defacto complainant. As regards the applicability of Sec. 3(1)(x), this Court held that the act of intentional insulting or intimidating with intent to humiliate a member of SC/ST community should have taken place in any place within a public view. It has been held in the decision of the Apex Court as in Crl.Appeal 1029/19 - : 18 :- _**Asmathunnisa v. State of A.P**_ [AIR 2011 SC 1905] that the words used are “ _in any place but within pubic view_ ” must mean that the public must view the person being insulted for which he must be present and no offence on the allegation under the said Section gets attracted if the person is not present. Therefore, it was held that the alleged incident should have taken place in public view where the victim is present or that in other words, the alleged act of humiliation or intimidation with intend to humiliate a member of SC/ST community should be in any place within a public view, which is in the presence of the accused. Since in the said case the defacto complainant was not present in the scene of occurrence, it was held by this Court in _**Gireeshkumar's case supra**_ [2012 (3) KLT 901] that even the offence as per Sec. 3(1)(x) is not made out in that case. It may be noted that the provisions corresponding to Sec. 3(1)(ii) and Sec. 3(1)(x) as it stood earlier, are now contained in the provisions as per Sec. 3(1)(c) and Sec. 3(1)(r) of the said Act, after the amendment w.e.f. 26.1.2016. 17. The prosecution case is that it is a matter of common knowledge that it was strong and prevalent socio-religious, cultural and caste practice in the past, whereby the members of the non- Crl.Appeal 1029/19 - : 19 :- SC/ST, more particularly, forward communities/upper class used to entertain the belief that the presence of SC persons would be causing defilement and impurity and such defilement and impurity caused by the mere presence of the members of the SC community is to be removed by the act of pouring cow-dung water in such places and then to clean it with broom stick, etc. This was so done as a symbolic act emanating from the strong caste discriminatory belief held by the forward community individuals that the presence of SC persons causes defilement and impurity and that such defilement is to be removed by such an act of pouring cow-dung water and cleaning it with broom stick, etc. The prosecution would point out that the said act, if it is done in this modern times, would amount to an act which clearly promotes or attempts to promote feelings of hatred or ill-will against the members of the SC community. The meaning of the word, “ _**ill-will**_ ” as found in various dictionaries are as follows: _According to the_ _**Oxford Dictionary** , “ill-will” means 'bad and unkind feelings towards somebody'_ _According to the_ _**Cambridge Dictionary** , 'ill-will' means 'bad feelings between people because of things that happened in the past'_ _According to the_ _**Merriam -Webster Dictionary** 'ill-will' means 'unfriendly feeling'_ _According to the_ _**Macmillan Dictionary** 'ill-will' means a strong feeling that you dislike someone and wish them harm._ Crl.Appeal 1029/19 - : 20 :- _According to the_ _**Collins Dictionary** , 'ill-will' means 'unfriendly or hostile feelings that you have towards someone.'_ The meaning of the word, “ _**hatred**_ ” is listed in the dictionaries as follows: _According to the_ _**Oxford Dictionary** , “hatred” means 'a very strong feeling of dislike for somebody/something'._ _According to the_ _**Cambridge Dictionary** , 'hatred' means 'an extremely strong feeling of dislike'._ _According to the_ _**Merriam -Webster Dictionary** 'hatred' means 'extreme dislike or disgust' and 'ill-will' or resentment that is usually mutual; prejudiced hostility or animosity'_ _According to the_ _**Macmillan Dictionary,** 'hatred' means 'a very strong feeling that you dislike someone or something very much'._ _According to the_ _**Collins Dictionary** , 'hatred' means, 'an extremely strong feeling of dislike for someone or something'._ 18. The prosecution would contend that the abovesaid act, which was highly prevalent amongst the members of the non-SC/ST, particularly, forward community/upper class in even treating the very presence of the member of SC community as causing defilement and impurity and that such defilement or impurity is to be purified and cleaned by pouring cow-dung water and then clearing it etc., is a historically well-known fact. Such a practice is an anathema to our high constitutional values and that if it is done in these modern times, it will inevitably have the effect of denigrating the members of the SC community, solely on the basis of their so-called low caste position Crl.Appeal 1029/19 - : 21 :- and it will have the effect of promoting or at least attempting to promote feelings of hatred or ill-will against the members of the SC community, as a whole group. It is urged that such acts, though it has been directed only against an individual victim, will amount to promoting or attempting to promote ill will or hatred against members of SC, as a whole group. True that a comparative reading of the provisions contained in Secs. 3(1)(a) to (s), (w) (y) and (z) to (zc) of the amended provisions vis-a-vis Sec. 3(1)(u) of the amended provisions on the other hand, would clearly show that the former provisions would come into play even if the acts are directed against only an individual, whereas the latter provision, viz., the one as per Sec. 3(1)(u), will come into play when the acts are directed against SC/ST collectively as a group or entity. 19. The prosecution would further point out that such an act would certainly cause bad feelings between the persons, who do not belong to SC community and the persons, who belong to SC community on account of such obnoxious caste discriminatory practices that have happened in the past, inflicted by the members of the non-SC/ST, particularly upper castes/upper class/ forward communities, on the scheduled caste persons or that it would Crl.Appeal 1029/19 - : 22 :- certainly cause unfriendly feeling against them and that it generates strong feeling of dislike against the members of the SC and even to wish them harm, by treating in such highly insulting and denigrating manner. 20. The learned Prosecutor would point out on the basis of the written submissions made in the abovesaid report filed by the I.O. that the investigating agency has been able to collect photographs proving the abovesaid incident and such photographs, which have been produced before the competent special court concerned, etc. and that it is on the basis of the proper and fair conduct of the investigation that the investigating agency has named the accused persons. Further the investigating agency has fairly conceded that the 1[st] appellant and the 10[th] appellant herein belong to SC community and that only 9 out of the 11 appellants belong to communities other than SC/ST. In the light of the abovesaid stand taken by the investigating agency, this Court need not probe the issue further as to whether any materials were available for the investigating agency for individually naming the accused persons for the purpose of this anticipatory bail application. It is a fact that the above 9 appellants concerned do not have a case that any or all of them belong SC Crl.Appeal 1029/19 - : 23 :- community. 21. After hearing both sides, this Court is of the view that the abovesaid alleged acts of the accused persons in pouring cow-dung water in the scene of occurrence after the 2[nd] respondent had left the scene and then cleaning it with broom stick, etc. will not satisfy the ingredients of Secs.3(1)(c) and Sec. 3(1)(r) of the abovesaid Act [which is pari materia to the pre-amended provisions contained in Sec. 3(1)(ii) and 3 (1)(x) respectively] in view of the dictum laid down by this Court in _**Gireeshkumar's case**_ supra. In the instant case also, what is allegedly used is cow-dung water and the said act was performed at the time when the 2[nd] respondent defacto complainant was not present at the scene of occurrence. 22. The provision contained in Sec. 3(1)(u) of the abovesaid Act has been incorporated after the amendment made to the Act, w.e.f. 26.1.2016 as per Act 1 of 2016. The provision as per Sec. 3(1) (u) of the amended Act was not in existence at the time of the occurrence of the offence considered by this Court in _**Gireeshkumar's case**_ supra. 23. After hearing both sides, this Court is constrained to take the view, but only for the limited purpose of anticipatory bail plea, Crl.Appeal 1029/19 - : 24 :- that the prosecution has certainly made out a prima case of substance that the abovesaid alleged acts said to have been done by the accused persons will have the effect of promoting or attempting to promote feelings of hatred or at least feelings of ill-will against, not only the individual victim concerned, but also against members of the SC community as a whole group. Moreover, it has to be borne in mind the specific case of the 2[nd] respondent lady defacto complainant is that, by the abovesaid acts, she has been denigrated caste-wise (എന� ജ�ത�യമ�യ� അധ�ക�പ�ച�). Prima facie, this Court is of the view that if the factual allegations are correct, then the above acts, even though it is directed against an individual SC victim, will inevitably have the effect of promoting or attempting to promote hatred or ill-will against the members of SC, as a whole group. This view is rendered by this court only to decide the limited issue as to whether the statutory bar contained in Secs. 18 and 18A of the abovesaid Act would apply in this case and the consequent plea for pre-arrest bail. Moreover, it has to be borne in mind that unlike the requirement of Sec. 3(1)(r) of the amended Act, [corresponding to Sec.3(1)(x) of the pre-amended provision] the requirement regarding the presence of the victim in public view at the scene of occurrence is not a necessary ingredient as Crl.Appeal 1029/19 - : 25 :- far as the offence as per Sec. 3(1)(u) of the amended Act is concerned. The dictum laid down by this Court in _**Gireeshkumar's case**_ supra [2012 (3) KLT 901] which is regarding the applicability of ingredients contained in Sec. 3(1)(ii) and 3 (1)(x) of the abovesaid Act as stood prior to the amendment [corresponding to Sec. 3(1)(c) and Sec. 3(1) (r) of the amended provision] cannot have any application as far as the ingredients of the offence as per Sec. 3(1)(u) of the amended provision. 24. Since the present proceedings is only for anticipatory bail, it may not right and proper for this Court to get into any detailed analysis of the factual aspects in this case, so as to pronounce any final opinion on the issue as to whether the offences are made out, etc., and this is all the more so, particularly in view of the nature of the factual matrix in this case. It is accordingly made clear that the abovesaid issue regarding the prima facie disclosure of the offence has been opined by this Court only in the limited context of deciding as to whether the statutory bar under Secs.18 and 18A of the Act will apply in this case as well as the plea for anticipatory bail. 25. The upshot of the above discussion is that since prima facie case or substance disclosing the offence as per Sec. 3(1)(u) is Crl.Appeal 1029/19 - : 26 :- SC/ST Act is made out in the instant case based on the prosecution materials, the bar under Secs. 18 and 18A of the said Act will apply. In other words, as rightly held by the Sessions Court in the impugned order, the said bar would stand in the way of the courts exercising jurisdiction and competence in deciding on pre-arrest bail pleas. 26. In view of the said bar, there is no jurisdiction and competence for this Court to consider the plea for grant of anticipatory bail under Sec. 438 of the Cr.P.C. in the case of those applicants herein, who do not belong to SC/ST. However, the said bar under Secs. 18 and 18A would apply only when the bail plea is made in terms of Sec.438 of the Cr.P.C., ie. for pre-arrest bail/ anticipatory bail. Needless to say, the said bar cannot have any application when the bail plea is made at the stage of Secs.437 of 439 of the Cr.P.C. At that stage, the competent special court notified to deal with SC/ST cases will have the jurisdiction to consider such bail pleas on merits. Indeed, at that stage the bail court concerned will have jurisdiction and obligation to consider the bail plea on merits and such jurisdiction under Secs. 437 or 439 of the Cr.P.C. is not in any manner fettered or barred on account of the provisions contained in Secs.18 and 18A of the SC/ST Act. This Court has only held that Crl.Appeal 1029/19 - : 27 :- there is no jurisdiction to consider the anticipatory bail plea under Sec. 438 of the Cr.P.C. in the facts and circumstances of the case. All observations and findings made by this Court are only in the limited context regarding the applicability of the bar in terms of Secs. 18 and 18A of the Act. 27. In view of abovesaid aspects, it is ordered that this Court is not in a position to accede to the plea of the appellants other than the 1[st] and 10[th] appellants for grant of anticipatory bail. 28. It is to be noted that the 1[st] and 10[th] appellants belong to SC caste. Further, the learned Prosecutor would now submit on the basis of the instructions of the investigation agency that if the above appellants personally surrender before the investigating officer concerned and fully co-operate with the interrogation process, then the investigating agency does not have much serious objections in the court concerned directing to release them on bail, subject to stringent conditions. Accordingly, it is ordered that the appellants may immediately surrender and personally appear before the investigating officer concerned for interrogation purposes without any further delay, at any rate, by 9 a.m. on any day on or before 30.1.2020 or within such Crl.Appeal 1029/19 - : 28 :- other time that may be extended by the Investigating Officer concerned, as he deems fit and proper. The appellants will fully cooperate with the IO in the interrogation process. Thereafter the IO will produce the appellants concerned before the special court concerned notified to deal with SC/ST cases and thereupon, the said court, may consider and pass orders on the bail applications of the appellants that may be filed under Sec. 437 of the Cr.P.C., after hearing the appellants' counsel and the learned Prosecutor and also taking note of the abovesaid submissions made by the Public Prosecutor on behalf of investigating agency that the custody interrogation of the appellants concerned is not necessary. With these observations and directions, the above Criminal Appeal will stand dismissed. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED TO THE 1ST APPELLANT. ANNEXURE B TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED TO THE 10TH APPELLANT.**