Ernakulam Court Rejects Anticipatory Bail Of Media Person Accused Under SC/ST Act

Recently, the learned Special Court (SC/ST Act), Ernakulum Division, Kerala has refused to grant anticipatory bail U/s 438 Cr.P.C. to an accused person charged under section 3(l)(r) and 3(l)(u) of Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, Act 2015) and section 120(0) of Kerala Police Act, holding therein that bar under Section 18 of SC/ST Act, 1989 is squarely applicable in this case.

BRIEF FACTS OF THE CASE

The prosecution allegation complainant belongs to scheduled caste and he is the member of Legislative Assembly representing Kunnathunad Constituency. Petitioner herein belongs to Christian community. Kunnathunad Assembly Constituency is reserved for scheduled caste. This fact is known to public. The petitioner herein has also clear knowledge that the defacto complainant is the member elected from Kunnathunad Constituency reserved for scheduled caste. Petitioner herein is the editor, news reader and publisher of YouTube channel by name Marunadan Malayali. Accused 2 and 3 are the Managing Director-cum-CEO and Chief Editor respectively of the said news channel. On 24/05/2023 accused persons broad -casted a news item against the defacto complainant. This news item was transmitted and transferred through several social media platforms. This item was shared widely. In the news item several defamatory and derogatory comments were made against the defacto complainant. All the comments are baseless and without any iota of tru th. The aim of the petitioner is to intentionally insult the defacto complainant who belongs to scheduled caste in the presence of public. The contents of the news item lowered the status of the defacto complainant in the society and thus committed the offence alleged against him.

CONTENTION OF THE PETITIONER

Learned counsel for the petitioner contended that petitioner is innocent and having 30 years of experience in the field of journalism. He relied on decision of Hon’ble Supreme Court in Hitesh Verma vs. State of Uttarakhand and Another reported in AIR 2020 SC 5584. According to him, all insults or intimidations will not be an offence under the Act unless such insult or intimidation i .,.. the knowledge that the victim belongs to – scheduled cast or scheduled tribe.

He further relied on Prathvi Raj Chauhan Vs. UOI (2020(2)KHC423) wherein it was held that Bar under section 18 of SC/ST Act is not an absolute bar. He submitted that allegations are only defamatory.

CONTENTION OF RESPONDENT

The learned Public Prosecutor objected the petition stiffly. According to him, the news item is perse an derogatory and also insult to the defacto complainant. According to him the allegations are primafacie sufficient to attract the offences alleged against the petitioner. It is also submitted that the allegations are contemptuous also as the news contains derogative comments against the judiciary also.

The learned counsel for the complainant, relied on Sumesh GS and anr. Vs. State of Kerala (2023 Volume 2KLT513) and XXX Vs. State of Kerala (2022(6)KHC).

HON’BLE COURT’S OBSERVATIONS

Learned Session Judge Honey M. Verghese observed that “Section 18 and 18A of the Act clearly put a bar in considering the petition under section 438 of the Cr.P.C where the offences alleged under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities} Act.”

“The news prima-facie shows that the petitioner made comments against the defacto complainant with an intention to insult him. As held by the Hon’ble High Court in the decision XXX vs. State of Kerala that when considering the question of prima facie case for the purpose of considering plea of bail during investigation and the period before trial, the knowledge of the accused that the defacto complainant is a member of scheduled caste shall be understood and inferred from the prosecution records. This dictum is squarely applicable in this case. The word knowing or knowledge has to be found on the basis of the evidence tendered.”

The learned Trial court stated that evidence shows that petitioner has the knowledge of complainant belonging to Schedule Caste category as the legislative seat of Kunnathunadu is reserved for Scheduled Caste candidate.

In view of the above, learned Trial court held that prima facie allegations are correct and there is bar under section 18 of the Act to exercise discretion U/s 438 Cr.P.C.

Case Title:-  Shajan Skaria Vs. SHO Ellamkara & another

Case no. :-   Crl. M.C. No.1684 of 2023

Order date :- 16.06.2023