The Kerala Government has moved the Kerala High Court challenging the anticipatory bail granted to the author and social activist Civic Chandran in a sexual harassment case filed by a Dalit Writer.
The Kerala State Government has approached the Kerala High Court through Additional Public Prosecutor challenging the anticipatory bail granted to Writer-Activist Civic Chandran, citing that the order is against the spirit of the Special Law enacted for Prevention of Atrocities against the people belonging to SC/ST community.
The Accused was booked in a sexual harassment case punishable under Sections 354, 354 A(1)(ii), 354A(2), 354 D(2) IPC and relevant provisions under the SC/ST(Prevention of Atrocities) Act, 1999. During the course of investigating, the accused had sought anticipatory bail, and despite the objection from the prosecution and the victim, bail was granted.
The Prosecution case is that in February 2022, the de facto complainant had organised a function in connection with the publication of her book at Nandi. After the function, the accused sexually assaulted the complainant by kissing the back side of her neck without her consent after demanding to do so with sexual interest thus, the accused outraged the modesty of the victim with the knowledge that the complainant belonged to Scheduled Caste.
It was averred in the appeal memorandum that the Sessions Court went wrong in considering the pre-arrest bail application under Section 438 of the Code of Criminal Procedure, when there is an absolute bar under Section 18 and 18 A of the Scheduled Castes and Scheduled Tribes (PA) Act, 1989. Furthermore, it is submitted that the Sessions Court seriously erred in stating in the order that there is no prima facie case made out against the accused, alleging that the findings of the Sessions Court that no prima facie case is made out are only for the purpose of circumventing the bar under Section 18 of the Act.
The Court, while granting the anticipatory bail, determined the applicability of Section 18 and 18A, and had observed that Section 438 CrPC has no application in the case of the SC/ST (Prevention of Atrocities) Act as it is a general principle that the general provisions will have no application in case of a particular provision in the special statute.
What is stated in Section 18 of the Act is "it shall not apply to cases under the Act 1989 if the complainant does not make out a prima facie case for applicability of the provisions of the Act 1989", observed the Court. Referring to the Apex Court Court decision in Prathvi Raj Chauhan v. Union of India, in which Section 18A was elaborately interpreted, the Court also observed that Section 18 reads that 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.
Further, the Court remarked that "It is highly unbelievable that the touching or hugging as alleged by the victim that the accused had knowledge about her caste, the accused is a reformist and is engaged in social activities and he is against the caste system. He is writing and fighting for a casteless society. In such circumstances it is highly unbelievable that he will touch the body of the victim fully knowing that she is a member of scheduled caste".
The Court reasoned that since the accused is fighting against the case system and is involved in a number of agitations, therefore offence under Section 3(1)(w)(i) and 3(2)(va) of the SC/ST(Prevention of Atrocities)Act will not stand against the accused, and the bar under Sections 18 and 18A of the Act has no application.
The Same Court, on the 12th of this month, granted anticipatory bail to the Writer-Activist in another sexual harassment case in which it is alleged that the accused made sexual advances toward the de facto complainant, who is a young female writer and tried to outrage her modesty in a camp convened at Nandi beach in February 2020. While granting anticipatory bail, the Court observed that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.
Both orders have been subjected to severe criticism, especially the Courts remark that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.
Case Title: State of Kerala v. Civic Chandran & Anr.