# Shajan Skaria v. The State of Kerala & Anr

- **Citation:** 2024 INSC 625
- **Court:** Supreme Court of India
- **Decided:** 2024-08-23
- **Case number:** Criminal Appeal No. 2622 of 2024
- **Bench:** J.B. Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shajan-skaria-v-the-state-of-kerala-anr-38010
- **Pages:** 60

## Headnote

Whether Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 imposes an absolute bar on
the grant of anticipatory bail in cases registered under the said
Act; when can it be said that a prima facie case is made out in a
given FIR/complaint; whether the averments in the FIR/complaint in
question disclose commission of any offence under Section 3(1)(r)
or under Section 3(1)(u) of the 1989 Act; whether mere knowledge
of the caste identity of the complainant is sufficient to attract the
offence under Section 3(1)(r) of the 1989 Act.
Headnotes†
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.18 - Bar on the grant of anticipatory
bail, if absolute:
Held: No - s.18 does not impose an absolute bar on the power
of the courts to examine whether a prima facie case attracting
the provisions of the 1989 Act is made out or not - The bar
created by ss.18 and 18-A(i) shall not apply, if the complaint does not
make out a prima facie case for applicability of the provisions of the
1989 Act and thus, the Court would not be precluded from granting
pre-arrest bail to the accused persons - s.18 bars anticipatory bail
only in those cases where a valid arrest of the accused person
can be made as per Section 41 read with Section 60A of CrPC.
[Paras 35, 41]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - "prima facie" - When can a prima facie
case be said to be made out in a given FIR/complaint - Bar
of s.18, when not applicable:
Held: Prima facie, a Latin term translates to "at first sight" or
"based on first impression" - The expression "where no prima
* Author
[2024] 8 S.C.R.
1087
Shajan Skaria v. The State of Kerala & Anr.
facie materials exist warranting arrest in a complaint or FIR"
means "when based on first impression, no offence is made
out as shown in the FIR or the complaint" - Thus, when the
necessary ingredients to constitute the offence under the 1989 Act
are not made out upon the prima facie reading of the complaint
or FIR, no case can be said to exist prima facie and the bar of
Section 18 would not apply and the courts would not be absolutely
precluded from granting pre-arrest bail to the accused persons
on its own merits - However, if the complaint has all the ingredients
necessary for constituting the offence, then the remedy of
anticipatory bail will not be available to the accused - Courts
should conduct a preliminary inquiry to determine if the narration of
facts in the complaint/FIR in fact discloses the essential ingredients
required to constitute an offence under the 1989 Act to ensure
that no unnecessary humiliation is caused to the accused -
Words "having committed an offence under this Act" denote that it
is only when the accusation in the complaint clearly points towards
the commission of an offence under the 1989 Act that the bar of
Section 18 would apply. [Paras 48-52]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.3(1)(r), 3(1)(u) - Appellant, Editor
of an online news channel published a video on YouTube
allegedly making derogatory statements and levelling various
allegations against the complainant - Ingredients necessary to
constitute offences under Sections 3(1)(r) and 3(1)(u), if prima
face disclosed in the FIR - Offence under Sections 3(1) (r) and
3(1)(u), if made out:
Held: No - All insults or intimidations to a member of the Scheduled
Caste or Scheduled Tribe will not amount to an offence under the
1989 Act, unless such insult or intimidation is on the ground that the
victim belongs to Scheduled Caste or Scheduled Tribe - Offence
under Section 3(1)(r) is not established merely on the fact that the
complainant is a member of a Scheduled Caste or a Scheduled
Tribe, unless there is an intention to humiliate such a member for
the reason that he belongs to such community - In the present
case, there is nothing in the transcript of the video in question
to indicate even prime facie that the

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[2024] 8 S.C.R. 1086 : 2024 INSC 625
Shajan Skaria
v.
The State of Kerala & Anr.
(Criminal Appeal No. 2622 of 2024)
23 August 2024
[J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Whether Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 imposes an absolute bar on
the grant of anticipatory bail in cases registered under the said
Act; when can it be said that a prima facie case is made out in a
given FIR/complaint; whether the averments in the FIR/complaint in
question disclose commission of any offence under Section 3(1)(r)
or under Section 3(1)(u) of the 1989 Act; whether mere knowledge
of the caste identity of the complainant is sufficient to attract the
offence under Section 3(1)(r) of the 1989 Act.
Headnotes†
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.18 - Bar on the grant of anticipatory
bail, if absolute:
Held: No - s.18 does not impose an absolute bar on the power
of the courts to examine whether a prima facie case attracting
the provisions of the 1989 Act is made out or not - The bar
created by ss.18 and 18-A(i) shall not apply, if the complaint does not
make out a prima facie case for applicability of the provisions of the
1989 Act and thus, the Court would not be precluded from granting
pre-arrest bail to the accused persons - s.18 bars anticipatory bail
only in those cases where a valid arrest of the accused person
can be made as per Section 41 read with Section 60A of CrPC.
[Paras 35, 41]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - "prima facie" - When can a prima facie
case be said to be made out in a given FIR/complaint - Bar
of s.18, when not applicable:
Held: Prima facie, a Latin term translates to "at first sight" or
"based on first impression" - The expression "where no prima
* Author
[2024] 8 S.C.R.
1087
Shajan Skaria v. The State of Kerala & Anr.
facie materials exist warranting arrest in a complaint or FIR"
means "when based on first impression, no offence is made
out as shown in the FIR or the complaint" - Thus, when the
necessary ingredients to constitute the offence under the 1989 Act
are not made out upon the prima facie reading of the complaint
or FIR, no case can be said to exist prima facie and the bar of
Section 18 would not apply and the courts would not be absolutely
precluded from granting pre-arrest bail to the accused persons
on its own merits - However, if the complaint has all the ingredients
necessary for constituting the offence, then the remedy of
anticipatory bail will not be available to the accused - Courts
should conduct a preliminary inquiry to determine if the narration of
facts in the complaint/FIR in fact discloses the essential ingredients
required to constitute an offence under the 1989 Act to ensure
that no unnecessary humiliation is caused to the accused -
Words "having committed an offence under this Act" denote that it
is only when the accusation in the complaint clearly points towards
the commission of an offence under the 1989 Act that the bar of
Section 18 would apply. [Paras 48-52]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.3(1)(r), 3(1)(u) - Appellant, Editor
of an online news channel published a video on YouTube
allegedly making derogatory statements and levelling various
allegations against the complainant - Ingredients necessary to
constitute offences under Sections 3(1)(r) and 3(1)(u), if prima
face disclosed in the FIR - Offence under Sections 3(1) (r) and
3(1)(u), if made out:
Held: No - All insults or intimidations to a member of the Scheduled
Caste or Scheduled Tribe will not amount to an offence under the
1989 Act, unless such insult or intimidation is on the ground that the
victim belongs to Scheduled Caste or Scheduled Tribe - Offence
under Section 3(1)(r) is not established merely on the fact that the
complainant is a member of a Scheduled Caste or a Scheduled
Tribe, unless there is an intention to humiliate such a member for
the reason that he belongs to such community - In the present
case, there is nothing in the transcript of the video in question
to indicate even prime facie that the allegations were made by
the appellant only on account of the fact that the complainant
belongs to a Scheduled Caste - Allegations made by the appellant
show that he is at inimical terms with the complainant and his
intention may be to malign or defame him but not on the ground
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or for the reason that the complainant belongs to a Scheduled
Caste - At best, the appellant could be said to have prima facie
committed the offence of defamation punishable under Section 500,
IPC for which the complainant can prosecute the appellant -
A prima facie conjoint reading of the transcript of the video and
the complaint does not disclose that the actions of the appellant
were impelled by the caste identity of the complainant for which
he could invoke the provisions of the 1989 Act - Further, even 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 - 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 had
nothing to do in general with the members of Scheduled Caste or
the Scheduled Tribe - Appellant's target was just the complainant
alone - Impugned order passed by the High Court declining to
grant anticipatory bail to the appellant, set aside - If arrested, the
appellant be released on bail on the terms and conditions, which the
Investigating Officer may deem fit to impose. [Paras 58, 74, 77, 89]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 s.3(1)(r) - Mere knowledge of the caste
identity of the complainant, if sufficient to attract the offence
under:
Held: No - Wherever the legislature intended that mere knowledge
of the fact that the victim is a member of Scheduled Caste or
Scheduled Tribe would be sufficient to constitute an offence under
the 1989 Act, it has specified the same for instance, u/ss.3(1)(w)
(i), (ii), (2)(v), (va) whereas, the words in Section 3(1)(r) of the
1989 Act are altogether different. [Para 79]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.3(1)(r) - "with intent to humiliate" -
Meaning:
Held: Section 3(1)(r) should be seen in the context of
Section 7(1)(d) of the Protection of Civil Rights Act, 1955 wherein
any insult against a member of a Scheduled Caste or Scheduled
Tribe on the ground of "untouchability" was punishable with
imprisonment for a maximum term of six months - However, Civil
Rights Act could not adequately tackle caste-based offences and
[2024] 8 S.C.R.
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Shajan Skaria v. The State of Kerala & Anr.
the practice of "untouchability", leading to the enactment of the
1989 Act introducing more stringent provisions for combating such
practices - The words "with an intent to humiliate a member of a
Scheduled Caste or Scheduled Tribe" are thus, inextricably linked
to the caste identity of the person who is subjected to intentional
insult or intimidation and are inseparable from the underlying idea
of "untouchability" which is sought to be remedied and punished
by the 1989 Act - Not every intentional insult or intimidation of
a member of a SC/ST community will result into a feeling of
caste- based humiliation - It is only in those cases where the
intentional insult or intimidation takes place either due to the
prevailing practice of untouchability or to reinforce the historically
entrenched ideas like the superiority of the "upper castes" over
the "lower castes/untouchables", the notions of 'purity' and
'pollution', etc. that it could be said to be an insult or intimidation as
envisaged by the 1989 Act - The expression "intent to humiliate" in
Section 3(1)(r) must be construed in the larger context in which
the concept of humiliation of the marginalised groups has been
understood by various scholars - It is not ordinary insult or
intimidation which would amount to 'humiliation' that is sought to
be made punishable under the 1989 Act - Humiliations based on
different grounds and identities existing in the society targeted in
different legislations like the Protection of Women from Domestic
Violence Act, 2005, the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013, discussed.
[Paras 61, 72]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Cases where complaints/FIRs are based
on YouTube videos, digital materials on social media platforms -
Courts to look into said materials alongwith the complaint:
Held: Courts should have the discretion to look into the materials
based upon which the complaint has been registered, in addition
to verifying the averments made in the complaint - If on a prima
facie reading of the such materials referred to in the complaint and
the complaint itself, the ingredients necessary for constituting the
offence are not made out, then the bar of Section 18 would not
be applicable. [Para 52]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Code of Criminal Procedure, 1973 -
ss.438, 482 - Constitution of India - Article 226 - Cases of
malicious prosecution due to political/private vendetta:
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Held: Such cases can be considered only by the High Court in
exercise of its inherent powers under Section 482 of the Code
or in exercise of its extraordinary jurisdiction under Article 226
of the Constitution - Powers under Section 438 of the CrPC
cannot be exercised once the contents of the complaint/FIR disclose
a prima facie case. [Para 49]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.18 - "arrest of any person" -
Significance - Code of Criminal Procedure, 1973 - ss.41, 60A:
Held: s.18 bars anticipatory bail only in cases where a valid
arrest of the accused person can be made as per Section 41 read
with Section 60A of CrPC - An arrest cannot be made merely
because it is lawful to do so - An arrest can be effected if there
is a reasonable complaint, credible information or reasonable
suspicion and the police officer has a reason to believe that such
offence has been committed by the accused person and the
arrest is necessary - The term 'arrest' appearing in the text of
Section 18 is to be construed and understood in the larger context
of the powers of police to effect an arrest and the restrictions
imposed by the statute and the courts on the exercise of such
power - Thus, the bar under Section 18 would apply only to
those cases where prima facie materials exist pointing towards
the commission of an offence under the 1989 Act because it is
only when a prima facie case is made out that the pre-arrest
requirements as stipulated under Section 41 of CrPC could be
said to be satisfied. [Paras 41, 43, 44, 46]
Interpretation of Statutes - Penal Statutes - Strict
interpretation - Principles of statutory interpretation:
Held: A penal statute must receive strict construction - A principle
of statutory interpretation embodies the policy of the law which is
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 is a principle of legal
policy formulated as a guide to the legislative intention. [Para 82]
Code of Criminal Procedure, 1973 - s.438 - Evolution of,
purpose - Discussed.
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Words and phrases - "Humiliation" -
Social context - Humiliations in different social structures -
Works of various scholars - Discussed.
[2024] 8 S.C.R.
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Shajan Skaria v. The State of Kerala & Anr.
Case Law Cited
Hitesh Verma v. State of Uttarakhand [2020] 9 SCR 593 : (2020)
10 SCC 710; Ramesh Chandra Vaishya v. State of Uttar Pradesh
& Anr. [2023] 6 SCR 643 : (2023) SCC OnLine SC 668; Prathvi
Raj Chauhan v. Union of India [2020] 2 SCR 727 : (2020) 4 SCC
727; Siddharam Satlingappa Mhetre v. State of Maharashtra and
Others [2010] 15 SCR 201 : (2011) 1 SCC 694; State of Madhya
Pradesh v. Ram Krishna Balothia [1995] 1 SCR 897 : (1995) 3
SCC 221; Satender Kumar Antil v. CBI [2022] 10 SCR 351 : (2022)
10 SCC 51; Arnesh Kumar v. State of Bihar and Another [2014]
8 SCR 128 : (2014) 8 SCC 273 - relied on.
Dr. Subhash Kashinath Mahajan v. State of Maharashtra and
Another [2018] 4 SCR 877 : (2018) 6 SCC 454; Vilas Pandurang
Pawar and Another v. State of Maharashtra and Others [2012]
8 SCR 270 : (2012) 8 SCC 795; Rahna Jalal v. State of Kerala
[2020] 13 SCR 621 : (2021) 1 SCC 733; Hitendra Vishnu Thakur
and Others v. State of Maharashtra and Others [1994] Supp. 1
SCR 360 : (1994) 4 SCC 602 - referred to.
Amir Chand v. The Crown (1949) SCC OnLine Punj 20; XXX v.
State of Kerala ILR 2022 4 Ker. 620; State of Kerala v. Hassan
2002 (2) KLT 505 - referred to.
U.S. v. Wiltberger [5 L Ed 37 : 18 US (5 Wheat.) 76 (1820)]; Tuck
& Sons v. Priester (1887) 19 QBD 629 (CA); London and Country
Commercial Properties Investments Ltd. v. Attorney General
(1953) 1 WLR 312 : (1953) 1 All ER 436; Willis v. Thorp (1875)
LR 10 QB 383 - referred to.
Books and Periodicals Cited
41st Law Commission of India report dated September 24, 1969; Law
Commission 48th Report (1972); Bereft of Being: The Humiliations of
Untouchability, Humiliation: Claims and Context, Oxford University
Press, First Edition (2009), pp. 95-107 by V. Geetha; Humiliation:
Claims and Context, pp. 1-22, by Gopal Guru; Logic of Humiliation,
Humiliation: Claims and Context, pp. 23-40 by Bhikhu Parekh;
The Interpretation of Statutes (12th Edn.) by Maxwell; Statute Law
(7th Edn. at p. 530) by William F. Craies - referred to.
List of Acts
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989; Code of Criminal Procedure, 1973; Kerala Police Act;
Constitution of India; Protection of Civil Rights Act, 1955.
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List of Keywords
Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989; Anticipatory bail; Pre-arrest
bail; Bar on grant of anticipatory bail; Absolute bar; "prima
facie"; Caste; Caste identity; Scheduled Caste or Scheduled
Tribe; Member of the Scheduled Caste or Scheduled Tribe;
Caste-based humiliation; Insults or intimidations; Malicious
prosecution; Political/private vendetta; Arrest; Humiliation; Video
published on YouTube; Transcript of video; "with intent to humiliate";
Intention to humiliate; Untouchability; Digital materials; Internet;
Social media; Social media platforms.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2622
of 2024
From the Judgment and Order dated 30.06.2023 of the High Court
of Kerala at Ernakulam in CRLA No.906 of 2023
Appearances for Parties
Sidharth Luthra, Gaurav Agrawal, Sr. Advs., Abhay Anil Anturkar,
Dhruv Tank, Aniruddha Awalgaonkar, Sarthak Mehrotra, Ayush
Kaushik, Bhagwant Deshpande, Ms. Surbhi Kapoor, Advs. for the
Appellant.
P.V. Dinesh, Sr. Adv., Nishe Rajen Shonker, Mrs. Anu K Joy, Alim
Anvar, Ms. Anna Oommen, Ms. Urvashi Chauhan, Haris Beeran,
Azhar Assees, Anand B. Menon, Radha Shyam Jena, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts: -
A.
FACTUAL MATRIX......................................................................
2*
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT................
10*
* Ed. Note: Pagination as per the original Judgment.
[2024] 8 S.C.R.
1093
Shajan Skaria v. The State of Kerala & Anr.
C.
SUBMISSIONS ON BEHALF OF THE COMPLAINANT...........
13*
D.
SUBMISSIONS ON BEHALF OF THE STATE..........................
15*
E.
RELEVANT STATUTORY PROVISIONS...................................
16*
F.
ISSUES FOR DETERMINATION................................................
20*
G.
ANALYSIS...................................................................................
21*
i.
Evolution of the concept of anticipatory bail.................
21*
ii.
Whether Section 18 of the Act, 1989 imposes an
absolute bar on the grant of anticipatory bail in cases
registered under the said Act?.......................................
27*
a.
Significance of the expression "arrest of any
person" appearing in Section 18 of the Act, 1989
41*
iii.
When can it be said that a prima facie case is made
out in a given FIR/complaint?..........................................
47*
iv.
Whether the averments in the FIR/complaint in
question disclose commission of any offence under
Section 3(1) (r) of the Act, 1989?.......................................
51*
a.
Meaning of the expression "intent to humiliate"
appearing in Section 3(1)(r) of the Act, 1989...........
55*
v.
Whether any offence under Section 3(1)(u) of the Act,
1989 is prima facie made out in the FIR/complaint in
question?............................................................................
63*
vi.
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?......................................
64*
H.
CONCLUSION............................................................................
69*
1.
This appeal arises from the judgment and order dated 30.06.2023
passed by the High Court of Kerala at Ernakulam in Criminal Appeal
No. 906 of 2023 filed by the appellant herein by which the High
Court dismissed the appeal and thereby affirmed the order dated
16.06.2023 passed by the Special Judge for Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ernakulam
Division declining to grant anticipatory bail to the appellant herein
in connection with the First Information Report No. 899 of 2023
lodged by the complainant (Respondent No. 2) at the Elamakkara
Police Station, District Ernakulam for the offence punishable under
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Sections 3(1)(r) and 3(1)(u) respectively of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the "Act,
1989").
A.
FACTUAL MATRIX
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. The English translation of the
video transcript is reproduced hereinbelow: -
"Thumb
Every one's afraid of P.V. Srinijan who grew up like a
mafia don!
Title
Who made P.V. Srinijan a mafia don?
Content
It was before a few days; the outside world knew about
the news. The pride of Kerala, Kerala blasters was holding
a selection trial which was for children under the age of
17. Children and parents had to wait for hours in front of
the stadium at Panampally Nagar, Ernakulam which was
owned by the Sports Council.
The Stadium was closed, because P.V. Srinijan, District
Sports Council President and MLA of Kunnathunad had
alleged that Kerala blasters had a debt to clear with
Kerala Sports Council. Media took on the news and
people got furious over it. With hesitation the gates were
finally opened. Yesterday evening Srinijan said sorry, he
said that he knew nothing about the incident and he was
being targeted. Former National Sports Star and present
Sports Council President, Sharaf Ali came out with strong
stand that; one, Kerala blasters didn't owe any money.
Two, even if they owed money it's a matter for the sports
council to deal with. The most important fact is that there
is not any due, because all the grounds belong to the
State Sports Council, the District Sports Council doesn't
have any relation. Sharaf Ali also said that P.V. Srinijan
doesn't have a say in it.
[2024] 8 S.C.R.
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Shajan Skaria v. The State of Kerala & Anr.
There are no arrears in the contract between Kerala
Blasters and Kerala Sports Council. The Kerala State
Sports Council has informed the Council in writing. The
District Sports Council has no right to block.
So why did Srinijan do the dirty work, who gave him the
right to do so? Today evening another news came out.
Including the sports hostel at Ernakulam, Panampalli
Nagar and district sports development is being obstructed
by Srinijan, the former Sports Council President and the
National Sports Star Olympian Mercy Kutty said.
The hostel at Panampally Nagar Sports Academy was
one of the biggest sports hostels in Kerala. With arrival of
Srinijan and the present President the administration got
completely changed. After that food was also not served
at the hotel. Now vigilance investigation is going on. All
the bills are fakes and the Sports Council's investigation
is being piled up.
Who should Kerala believe, Sharaf Ali, Mercy Kuttan or
Srinijan? Sharaf Ali and Mercy Kuttan have shown their
skills. They are national sports stars and are responsible
and know how to act according to the situation at hand.
They aren't political, so Kerala is more likely to believe
these sports stars.
Srinijan is lying, it's the latest example Srinijan's dramatic
moves to slowly bring it under his control. My question isn't
this, whenever a scandal, corruption or illegal activities
take place we will find Srinijan name under it. Srinijan is
infamous, still the CPM which made Srinijan a candidate
should remember he wasn't even a communist. He was
a leader of the youth congress. The footage of the DYFI
demonstration against Srinijan's relation to corruption and
black money transactions are still available.
First, CPM gives seat to him. Secondly, the people of the
locality elect him. The MLA Post is the best example that
the people of Kerala would allow any corrupt and black
money dealer to become a leader. By being at the MLA
position, Srinijan has only done damage to the state.
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We know that it is hard for Kerala to invite industries over,
because here political parties will raise red flags against
it. Therefore, even those industries in Kerala are leaving.
There are only a few industries who are born here and
pays taxes correctly to the State. One such industry is the
Kitex run by Kitex Sabu. The one who made Kitex Sabu
to move to Telangana from Kerala was Srinijan.
It was with Srinijan's consent that authorities used to pester
Kitex and being a close friend to the CM Pinarayi Vijayan,
Sabu had to come out to deal with the issue which made
Sabu to leave the state and move his entire industry into
Telangana. This is the situation of an entrepreneur who
gave jobs to millions and Srinijan is solely responsible for
it. To destroy the enterprise, he made the employees get
arrested in false charges, killed a person. The authorities
were haunting the enterprise. It is said as Kadambrayar
waste water, but investigation hasn't been fruitful. But
we know that the waste is being generated from the
Bhramapuram Plant which was later burnt. Now the dust
and ashes are going to the Kadambrayar Lake. No one
has a complaint about it. He made a businessman to
move out of the State who was providing jobs to millions.
Srinijan has many other allegations against him.
Srinijan's father-in-law was the Chief Justice of Supreme
Court. There are allegations that during those days he
made crores illegally which were even raised by the CPM.
Reason for Srinijan's sudden growth in wealth is due to
corruption has been come to knowledge. But no one has
the guts to start an investigation against him. Because he
has high connections even in the judiciary. Even an audio
clip came out that he had used his relations in judiciary to
bring down the Kitex Industry. The first was the account of
Srinijan's destruction of the sports sector in order to bring
it under his jurisdiction. The second was the conspiracy
to drive out a businessman out of the State.
Viewers might remember the news I have given out about
Prithviraj where it talked about the legal notice he had
sent me. After receiving the legal notice, I have studied
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Shajan Skaria v. The State of Kerala & Anr.
in depth about the film industry. From what I have learnt,
there are some shocking facts related to it. I am just waiting
for more proof. Knowingly or unknowingly Srinijan has a
presence in the film industry.
It is not as we thought, we can see Srinijan at most film
sites. Srinijan is the middle man in film industry for many.
Which means he is the one who provides funds the most
in the film industry.
But he does this with legal security. We are gathering
evidences and as we find it true we will publish it.
Just focus on one thing. When Srinijan gave affidavit for
participating in the competition he had to struggle to gather
money because he had lots of black money. If he were to
use it, he would get caught. So, he needed money in his
account, so it is said that he borrowed money from some
movie producers to show in record. I investigated some of
the movie producers listed in the records. These producers
borrow from others including Srinijan to make movies.
In short, Srinijan acts as a young mafia don. Srinijan has
presence in movie industry, sports sector and politics.
Srinijan will go to any extreme to eliminate those who
dares to stand against him. Srinijan has high connections
in judiciary. We shouldn't question judiciary. But there are
some judicial officers who are corrupt and Srinijan aids
them. But no one is bold enough to question him.
CPM has given Srinijan more power. Even the opposition
is afraid to stand up against him. Even the judiciary is
turning a blind eye. Even Kitex Sabu who fought against
this leaves at one point.
Why is everyone afraid of him? Why is Kerala letting
Srinijan to grow as a young mafia don?"
3.
The complainant who is a Member of the Kerala Legislative Assembly
representing the Kunnathunad constituency, a seat reserved for the
members of the Scheduled Castes, aggrieved by the publication of
the aforesaid video, filed a written complaint before the ACP, Central
Police Station, Ernakulam alleging inter alia that the video was
published by the appellant in order to publicise, abuse and insult the
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complainant, who is a member of a Scheduled Caste. The contents
of the complaint are reproduced as under:
"I am the elected candidate for the Kunnathunad Assembly
Constituency. Shri Sajan Skaria (Editor, News Reader
and Publisher), Smt. Ann Mary George (Managing Editor
& CEO), Shri Riju (Chief Editor) are using the online TV
Channel named Marunadan Malayali (TC 17/3164 (11)
Pattom Palace P.O., Pattom Thiruvananthapuram, PIN
695004) & are continuously concocting and spreading
false news against me through different social media,
which have no basis of any kind. Such false news are
created and spread in order to ridicule and humiliate me,
as a member of the Scheduled Caste Pulaya Community.
Shajan Skaria and aforesaid persons used my photo
and uploaded a defamatory video against me through
the Youtube Channel named Marunadan Malayali
on 24.03.2023 with the title reading 'PV Sreenijan, who
rose so suddenly as a Mafia Don' and the same was
shared through other social media as well.
He raised a false allegation against me, who is the
President of District Sports Council that there is a vigilance
inquiry going on against me regarding running of a sports
hostel. Besides he also alleged that I am trying to destroy
the business ventures and I have falsely implicated and
jailed the employees of Kitex. He also made a very serious
allegations against me that I have murdered one person.
Shajan Skaria and the aforesaid persons are making
efforts through their channel and other social media
to me as a murderer, without any basis. That after the
aforesaid video was uploaded, many people have shared
the same on different social media platforms. On seeing
this video, many persons from within the State of Kerala
outside telephoned me and talked about this matter and
raised doubts as to whether I am such a person or not.
I doubt that the above actions of Shajan Skaria, Smt.
Ann Mary George and Shri Riju is a part of their efforts
to intentionally destroy the public faith that I enjoy in the
society.
[2024] 8 S.C.R.
1099
Shajan Skaria v. The State of Kerala & Anr.
The video published through the Online News Channel
Marunadan Malayali on 24.05.2023 containing only false
news and false averments, is knowingly made with the
knowledge that I belong to Scheduled Caste Pulaya
community and thus only to deliberately humiliate and
ridicule me among the general public. Shajan Skaria,
Smt. Ann Mary George, Shri Riju who belongs to Christian
Community, knowing it fully well that I belong to Scheduled
Caste Pulaya Community, has uploaded and spread
the video as aforesaid with the deliberate intention of
humiliating, ridiculing me among the general public. The
same is an offence and is punishable under Section 3(r)
and 3(u) of the Scheduled Caste and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
That I faced severe humiliation, loss and damages due
to the aforesaid actions of Shajan Skaria, Smt. Ann Mary
George and Shri Riju. Hence it is prayed that necessary
legal action be taken against Shajan Skaria, Smt. Ann
Mary George and Shri Riju against creating and spreading
of false news through online channel and other social
media under the Sections of the Scheduled Caste and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989,
sections of IT Act and Sections of IPC.
Sd/xx P.V. Sreenijan
Attaching the CD."
4.
On the basis of the aforesaid complaint, FIR No. 899 of 2023 dated
09.06.2023 came to be registered against the appellant and two
other persons, who are not parties to the present appeal, for offences
punishable under Section 120(o) of the Kerala Police Act (the "KP Act")
and Sections 3(1)(r) and 3(1)(u) respectively of the Act, 1989.
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
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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.
7.
The appellant challenged the order passed by the Special Judge
before the High Court of Kerala, wherein the High Court, vide order
dated 30.06.2023 ("impugned order"), affirmed the order passed
by the Special Judge and refused to grant anticipatory bail to the
appellant. Relevant observations made by the High Court in the
impugned order are extracted hereinbelow: -
"8. Now the question arises whether the offence under
Section 3(1)(r) will be attracted, in the absence of reference
to the caste status of the second respondent in the news
item. In my opinion that question cannot be decided,
oblivious of the object behind the enactment and the reason
for amending the Act in 2019. The Act was brought into
force for preventing the commission of atrocities against
members of the Scheduled Castes and Scheduled Tribes
and to establish Special Courts for the trial of such offences
and provide relief and rehabilitation to the victims of such
offences. The Act was amended on finding that, despite
various measures to improve the socio-economic conditions
of the scheduled Castes and Scheduled Tribes, they still
remained vulnerable. Of course, as held by the Apex Court
in Hitesh Verma and Ramesh Chandra Vaishya (supra),
all insults or intimidation will not be an offence under the
Act, unless such insult or intimidation is on account of the
victim belonging to the Scheduled Castes or Scheduled
Tribes. As observed earlier, materials on record do
[2024] 8 S.C.R.
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Shajan Skaria v. The State of Kerala & Anr.
indicate that the video is intended to insult and humiliate
the second respondent. At this stage, the court can only
go by the allegations in the complaint and the attendant
circumstances. The allegation is specific to the effect that
the appellant has been insulting and humiliating the second
respondent only for the reason that he belongs to the
Scheduled Caste. The attendant circumstances are the
wanton nature of the allegations and the repeated news
items published against the second respondent. Going by
the wording of Section 3(1)(r), reference to the caste name
of the victim is not necessary for attracting the offence.
This is clear from the distinction between the wording of
Section 3(1) (r) and 3(1)(s). As such, it is not possible to
hold that there are no prima facie materials to attract the
offence under Section 3(1)(r).
In view of the finding on Section 3(1)(r), I am not venturing
to decide whether the offence under Section 3(1)(u) is
attracted or not. For the aforementioned reasons, the
impugned order of the Special Court is upheld.
In the result, the Criminal Appeal is dismissed."
(Emphasis supplied)
8.
In view of the aforesaid, the appellant is before this Court with the
present appeal.
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT
9.
Mr. Sidharth Luthra and Mr. Gaurav Agrawal, the learned Senior
Counsel appearing for the appellant made the following submissions:
a.
The appellant had no intention to insult the complainant and
merely stated the facts without mentioning the name of the
complainant's caste or community. The appellant being a
journalist, had published facts gathered through research and
sources.
b.
The High Court failed to take into consideration that the
complainant has not alleged that the appellant intentionally
insulted or intimidated him with an intent to humiliate him as a
member of the Scheduled Caste or Scheduled Tribe community.
A perusal of the telecast makes it clear that the appellant did
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not refer to the caste or community of the complainant. Even
if the statements made in the video are said to be defamatory,
the same by itself is not sufficient to attract an offence under
the Act, 1989.
c.
The complainant has not alleged that the appellant by words,
either written or spoken, had promoted or attempted to promote
feelings of enmity, hatred or ill-will against the members of the
Scheduled Castes or Scheduled Tribes. Thus, no offence under
Section 3(1)(u) of the Act 1989 is made out against the appellant.
d.
The High Court failed to consider the judgments of the
co-ordinate benches in XXX v. State of Kerala reported in
ILR 2022 4 Ker. 620 and State of Kerala v. Hassan reported
in 2002 (2) KLT 505, wherein it has been reiterated that the
offence under Section 3(1)(u) of the Act, 1989 would be attracted
only if the feelings of enmity, hatred or ill-will are promoted or
attempted to be promoted against members of the Scheduled
Castes or Scheduled Tribes as a class and not on criticizing
an individual member.
e.
The decision of this Court in Hitesh Verma v. State of
Uttarakhand reported in (2020) 10 SCC 710 held that an
offence under Section 3(1)(r) is not established merely on the
fact that the victim is a member of the Scheduled Caste, unless
there is an intention to humiliate a member of the Scheduled
Caste or Schedule Tribe for the reason that the victim belongs
to such caste.
f.
The decision of this Court in Ramesh Chandra Vaishya v.
State of Uttar Pradesh & Anr. reported in 2023 SCC OnLine
SC 668 held that every insult or intimidation would not amount
to an offence under Section 3(1)(x) of the Act, 1989 unless, such
insult or intimidation is targeted at the victim because he is a
member of a particular Scheduled Caste or Scheduled Tribe.
g.
The High Court failed to consider the decision of this Court in
Prathvi Raj Chauhan v. Union of India reported in (2020) 4
SCC 727 wherein it was held that if the complaint does not make
out a prima facie case for applicability of the provisions of the
Act, 1989 then the bar created by Section 18 and Section 18A(i)
would not apply.
[2024] 8 S.C.R.
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Shajan Skaria v. The State of Kerala & Anr.
C.
SUBMISSIONS ON BEHALF OF THE COMPLAINANT
10. Mr. Haris Beeran, the learned counsel appearing on behalf of the
complainant/Respondent No.2 made the following submissions:
a.
The appellant is a habitual offender in creating controversies
by intentionally propagating false and defamatory campaigns
against respectable members of society with the sole purpose
of attracting subscriptions to his web platform.
b.
The Act, 1989 was enacted with the object to prevent the
commission of offences and atrocities against the members of
the Scheduled Caste and Scheduled Tribes. Section 3(1)(r) of
the Act, 1989 underscores the crucial aspect of intentional insult
and intimidation with the specific intent to humiliate a member
of the Scheduled Caste or Scheduled Tribe. The primary aim
of the Act, 1989 is to ameliorate the socio-economic conditions
of the community as they have been historically deprived of
numerous civil rights. Therefore, an offence under the Act, 1989
is established when a member of these vulnerable sections of
society is subjected to humiliation and harassment.
c.
The appellant had wilfully disseminated the news against the
complainant, containing false assertions, deliberately aimed at
portraying the complainant in poor light in society on the ground
that he was a member of a Scheduled Caste.
d.
The false and derogatory remarks were spread with full
awareness of the complainant's status as a person belonging
to the Scheduled Caste, having been elected as an MLA
in 2021 from a seat reserved for members of the Scheduled
Caste community. The appellant's deliberate actions of insult
and humiliation undeniably constitute the offence under
Section 3(1)(r) of the Act, 1989.
e.
The appellant himself has stated that the complainant is
an MLA representing the Kunnathunad Constituency. This
makes his intentions clear as it is common knowledge that the
said constituency is reserved for members belonging to the
Scheduled Castes.
f.
The complainant has been singled out by the appellant for the
sole reason that he belongs to a Scheduled Caste. The Appellant
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has made unsubstantiated allegations and aspersions against
the complainant and has gone to the extent of calling him a
'murderer' and 'mafia don'.
g.
The appellant has not spared even the former Chief Justice of
India who happens to be the father-in-law of the complainant
and a person belonging to a Scheduled Caste. The appellant
has intentionally humiliated the father-in-law of the complainant,
assassinating his character as he also belongs to the Scheduled
Caste community.