17 Feb 2022 10:48 AM GMT
The Gujarat High Court has held that to prosecute a person under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it must be established that the accused had knowledge of the victim's caste."If we refer Section 3(5) (A) of the Act, it must be within knowledge of the accused person that such person is a member of Schedule Caste or Schedule Tribe or such...
The Gujarat High Court has held that to prosecute a person under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it must be established that the accused had knowledge of the victim's caste.
"If we refer Section 3(5) (A) of the Act, it must be within knowledge of the accused person that such person is a member of Schedule Caste or Schedule Tribe or such property belongs to such member. It is nowhere alleged by the complainant that the accused persons were having knowledge that the complainant was the member of Schedule Caste or Schedule Tribe or such property belongs to such member," Justice BN Karia opined.
The Bench made this observation in connection with a criminal appeal filed under Section 14 of the Act, seeking anticipatory bail.
In the instant case, the Respondent No. 2 was allegedly demanded sexual favours by the accused 1 and 2 and when she informed her husband, the other accused allegedly hurled abusive words against her caste and gave a kick and a blow to another witness. It is for this reason, that Respondent No. 2 registered a complaint under the SC/ST Act. The names of the present Appellants were not mentioned in the FIR and only during investigation, the Appellants' names were raised.
The Appellants had filed an application before the Additional Sessions Judge under section 438 of CrPC seeking anticipatory bail for offences under Sections 354(A)(1), 354-D, 323, 506(2) and 114 of IPC, and Sections 3(1)(r), (s), 3(1)(w-1-2) and 3(2)(5A) of the SC/ST Act which was rejected by the Judge. Aggrieved, they filed an appeal with the High Court.
The Appellants primarily contended that no offence under the SC/ST Act could be made out since the Appellants did not insult or abuse the caste of the Complainant. Further, the alleged incident occurred on 19th November but the complaint was filed on 21st November wherein general and vague allegations were made against the Appellants. The instant incident only pertained to a political dispute between the parties.
In contradiction, the Respondent-State averred that section 18 debarred the Appellants for seeking anticipatory bail and during the course of investigation, it was revealed that the Appellants were involved in the incident and serious allegations were made against them.
Drawing attention to Subhash Kashinath Mahajan vs State of Maharashtra [2018(6) SCC 454], the Bench reiterated the Apex Court's opinion: "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 malafide."
In this backdrop, the Bench proceeded to examine the present appeal. It noted that there were no specific allegations in the complaint against the Appellants within Sections 3(2)(5)(a), 3(g), 3(p), 3(r), 3(s)(z)(c) and under section 8 of the SC/ST Act. It held,
"basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word spoken alleging someone caste would not involve the present appellants in the offence."
Recognizing that the Appellants did not insult or use any words alleged by the Respondent No.2 against her caste, the Bench opined that prima facie, no offence was made out under the SC/ST Act.
There was no allegation against the Appellants as they did not use abusive language against Respondent No.2 The Bench explained that under Section 3(5)(A) of the Act, it must be known to the accused that the person belongs to the SC or ST community. However, in the instant case, the Appellants were not aware of Respondent No. 2's caste.
Accordingly, the appeal was allowed and the Appellants were directed to be enlarged on bail with a bond of INR 10,000 each. They were directed to cooperate with the investigation and refrain from making inducement, threat or promise to any person acquainted with the case. They were also directed to be present before the Magistrate on the first date of hearing and other occasions per the Magistrate.
Case Title: RAJESHBHAI JESINGBHAI DAYARA Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 47
Case No: R/CR.A/96/2021
Click Here To Read/Download Order