2.

On 24.05.2023, the appellant herein, in his capacity as the Editor of an online news channel named “Marunandan Malayali” published a video on YouTube, an online video sharing platform, levelling certain allegations against the complainant.

5.

A plain reading of the FIR would indicate that the appellant is not a member of the Scheduled Caste and he is alleged to have published and disseminated a video containing disparaging content about the complainant with a view to publicise, abuse and insult the complainant. The complainant has alleged that the video has caused him a lot of humiliation, mental pain and agony. The complainant has also alleged that the video was uploaded by the appellant with the intention to humiliate and ridicule him among the general public with the knowledge that the complainant is a member of the Pulaya community, which is a Scheduled Caste.

6.

Apprehending his arrest, the appellant went before the Court of Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989, Ernakulam Division, praying for grant of anticipatory bail under Section 438 of the Criminal Procedure Code, 1973 (the “CrPC”). The Special Judge, vide order dated 16.06.2023, rejected the anticipatory bail application of the appellant, holding that the allegations in the FIR are prima facie sufficient to attract the offence under the Act, 1989 and the bar of Section 18 of the said Act prohibits the court from exercising powers under Section 438 of the CrPC.

13.

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following issues fall for our consideration:

a. Whether Section 18 of the Act, 1989 imposes an absolute bar on the grant of anticipatory bail in cases registered under the said Act?

b. When can it be said that a prima facie case is made out in a given FIR/complaint?

c. Whether the averments in the FIR/complaint in question disclose commission of any offence under Section 3(1)(r) of the Act, 1989?

d. Whether any offence under Section 3(1)(u) of the Act, 1989 could be said to have been prima facie made out in the FIR/complaint in question?

e. Whether mere knowledge of the caste identity of the complainant is sufficient to attract the offence under Section 3(1)(r) of the Act, 1989?

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74.

Having regard to the reprehensible conduct and the nature of the derogatory statements made, the appellant, at best could be said to have prima facie committed the offence of defamation punishable under Section 500 of the IPC. If that be so, it is always open for the complainant to prosecute the appellant accordingly. However, the complainant could not have invoked the provisions of the Act, 1989 only on the premise that he is member of Scheduled Caste, more so, when a prima facie conjoint reading of the transcript of the video and the complaint fails to disclose that the actions of the appellant were impelled by the caste identity of the complainant.

77.

In our opinion, there is nothing to even prima facie indicate that the appellant by publishing the video on YouTube promoted or attempted to promote feelings of enmity, hatred or ill-will against the members of Scheduled Castes or Scheduled Tribes. The video has nothing to do in general with the members of Scheduled Caste or the Scheduled Tribe. His target was just the complainant alone. The offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or enmity against the members of the scheduled castes or scheduled tribes as a group and not as individuals.

80.

At the cost of repetition, the words in Section 3(1)(r) of the Act, 1989 are altogether different. Mere knowledge of the fact that the victim is a member of the Scheduled Caste or Scheduled Tribe is not sufficient to attract Section 3(1)(r) of the Act, 1989. As discussed earlier, the offence must have been committed against the person on the ground or for the reason that such person is a member of Scheduled Caste or Scheduled Tribe. When we are considering whether prima facie materials exist, warranting arrest of the appellant, there is nothing to indicate that the allegations/statements alleged to have been made by the appellant were for the reason that the complainant is a member of a Scheduled Caste.

81.

The High Court in its impugned order has observed “materials on record do indicate that the video is intended to insult and humiliate the second respondent.” The High Court may be right in observing that the intention of the appellant could have been to insult and humiliate the complainant but the High Court failed to consider whether such insult or humiliation was on account of or for the reason that the complainant belongs to Scheduled Caste. Is it the case of the complainant that had he not belonged to a Scheduled Caste, the appellant would not have levelled the allegations? The answer lies in the question itself.

82.

A penal statute must receive strict construction. A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can, therefore, be described as a principle of legal policy formulated as a guide to the legislative intention.

83.

Maxwell in The Interpretation of Statutes has observed that “the strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.”

88.

For all the foregoing reasons, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is hereby set aside.

89.

We direct that in the event of arrest of the appellant by police in connection with the First Information Report No. 899 of 2023 lodged at the Elamakkara Police Station, he shall be released on bail subject to terms and conditions, which the Investigating Officer may deem fit to impose.

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