Kerala Court Refuses Anticipatory Bail To 'Marunadan Malayali' Editor Shajan Skaria In Case By MLA Under SC/ST Act

A Kerala Court on Friday dismissed the anticipatory bail plea of Shajan Skariah, editor and publisher of YouTube Channel Marunadan Malayali, in the case against him for allegedly broadcasting a derogatory news item against MLA Sreenijin. 

The Special Court Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Honey M. Varghese found the allegations levelled by the petitioner, Skariah, against MLA Sreenijin, who is the de-facto complainant, to be insulting and defamatory. The Court found that the petitioner had knowledge that the de-facto complainant belongs to scheduled caste community, and that the publication of the news item containing derogatory comments through his YouTube channel was sufficient to attract the offence alleged under the SC/ST (Prevention of Atrocities) Act, 1989. 

"In this matter, the de facto complainant is a Member of the Legislative Assembly elected from a constituency reserved for scheduled caste and the accused has clear knowledge about him. The news item clearly mentions that the de facto complainant is a Member of Legislative Assembly. The knowledge of the accused that the de facto complainant belongs to Scheduled Caste could be discernible from the prosecution records and other materials", the Court observed while rejecting his plea. 

The petitioner had telecast a news item regarding alleged mal-administration of Sports Hostel at the instance of de facto complainant in his capacity as the Chairman, District Sports Council. The prosecution alleged that the said news item contained false, baseless and defamatory allegations against the de facto complainant, who belongs to the scheduled caste, with an intention to insult him. It was further alleged that the said news item promoted feelings of enmity, hatred, or ill-will against members of the scheduled caste or scheduled tribe. 

It was submitted by the counsels on behalf of the petitioner that he never intended to insult the defacto complainant with the knowledge that he belongs to scheduled caste, and that his action of publishing the news item was justified by truth. It was averred that the petitioner did not mention anything about the caste or community of the defacto complainant in the news item.

The counsels placed reliance upon the Apex Court decision in Hitesh Verma vs. State of Uttarakhand & Anr. (2020), to argue that all insults or intimidations will not be an offence under the Act unless such insult or intimidation is with the knowledge that the victim belongs to scheduled caste or scheduled tribe. It was contended that the allegations could only at the most be considered as defamatory, and not as an insult under section 3(1)(r) of the SC/ST (Prevention of Atrocities) Act, 1989, and that the allegations in the case would be insufficient to prima facie attract the offences alleged under the Act. 

The Public Prosecutor Manoj G. Krishnan on the other hand, opposed the application and argued that the said news item was derogatory and insulted the de facto complainant. It was added that the allegations in the news item, apart from being sufficient to attract the offence under the Act, were also contemptuous and contained derogative comments against the judiciary, as well. 

The counsels representing the de facto complainant averred that the petitioner had clear knowledge that the de facto complainant belonged to the scheduled caste community and intentionally humiliated him amongst the general public by making false allegations of intimidations. It was also submitted that the document produced before the Court at the instance of the petitioner as the published news item, was an edited version. It was also argued that although the news item had subsequently been withdrawn, it still generated insult and bad impression among the public against the de facto complainant. 

The Court in this case, at the very outset, ascertained the maintainability of the petition. It perused Sections 18 and 18A of the Act which put a bar in considering the petition under section 438 of the Cr.P.C where the offences alleged are under the SC/ST (Prevention of Atrocities) Act, 1989. The Court also perused the allegations in the news item and found the allegations levelled against the de facto complainant to be insulting and defamatory. 

"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 Kera/a 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 Court observed. 

The Court also took note of the decision in Sumesh G.S @ Sumesh Marcopolo V State Of Kerala [2023 LiveLaw (Ker) 148], wherein it had been observed that "online news channels have a duty to ascertain the veracity of the news before making disparaging remarks against individuals and publishing videos of their personal lives". 

The Court observed that although the act of the petitioner in withdrawing the news item was appreciable, it fortified the fact that they themselves considered it as a derogative comment. 

"On the basis of above discussions I hold that the allegations are prima-facie sufficient to attract the offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and hence the bar under Section 18 is squarely applicable in this case," the Court held while dismissing the petition. 

The petitioner was represented by Advocates Thomas J. Anakkallunkal, Jayaraman. S, Melba Mary Santhosh, Litty Peter, Anupa Anna Jose Kandoth. Advocates P.K.Varghese, K.S.Arun Kumar, M.T Sameer, Dhanesh V.Madhavan, Jerry Mathew, Reghu Sreedharan, Rameez M.Azeez and Sudarsanan U appeared on behalf of the respondents. 

Case Title: Shajan Skaria v. SHO, Elamakkara Police Station & Anr. 

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