Rajesh @APPELLANT@Hash State Of Kerala

The appellant in Crl.A.No. 296 of 2018 is the first accused in Crime No. 976 of 2017 of the Anthikkad Police Station, registered under Sections 143, 147, 341 and 323 read with Section 149 of the Indian Penal Code, and also under Sections 3(1)(s) and 3(2)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and the appellants in Crl.A.No. 297 of 2018 are the accused Nos. 2 to 5 therein. They made application for pre-arrest bail before the Special Court for the Trial of SC/ST Act Cases (the First Additional Sessions Court, Thrissur). Their applications were disallowed by the learned trial Judge in view of the bar under Section 18 of the SC/ST Act. Now they have come up in appeal under Section 14(A) of the SC/ST Act. An appeal under Section 14(A) of the SC/ST Act can be brought only against orders allowing or disallowing regular bail. The purpose of appeal is to examine the orders of the trial court, and pass necessary orders which the trial court should have or could have passed. An appellate court cannot grant a prayer or relief which the trial court cannot grant. Pre-arrest bail is totally barred under the SC/ST Act. So, there is no question of the regular court granting pre-arrest bail in such matters in any circumstance. If the trial court cannot grant pre-arrest bail, the appellate court also cannot grant pre-arrest bail in exercise of the appellate jurisdiction. The SC/ST Act does not contemplate a situation where pre-arrest bail can be granted by the regular court. So, the appeal meant under Section 14(A) of the SC/ST Act must be an appeal against an order allowing or disallowing regular bail, because as regards pre-arrest bail, there is a total bar. Only the High Court can, in exercise of the inherent powers, or extraordinary powers, grant pre-arrest bail in such matters in exceptional circumstances. Appellate powers or revisional powers cannot be exercised to grant pre-arrest bail under the SC/ST Act, when there is a total bar under Section 18 of the SC/ST Act. Anyway, now the learned counsel for the appellants submits that the appellants are ready to surrender before the trial court, and make application for regular bail.

What is barred under the law is only pre-arrest bail. It is well settled that the regular court can very well entertain application for regular bail, and grant regular bail, if the accused deserves bail. This is an area where there is the possibility of the special provisions being misused. Such possibilities will have to be born in mind by the regular court. I do not think that the court below will mechanically approach the request for regular bail, or mechanically reject the request for regular bail. For a prosecution under Section 3(1)(s) of the SC/ST Act, the alleged offence must have been committed within public view, and also with the object of abusing or humiliating a member of a Scheduled Caste or Scheduled Tribe on the ground that he or she belongs to such a caste or tribe. A mere abuse personally will not come under Section 3(1)(s) of the SC/ST Act. When application for regular bail comes, the regular court will have to examine the whole case records, including the complaint, and see whether the essential elements of the offence under Section 3(1)(s) of the SC/ST Act are there in the complaint and other materials.

Section 3(2)(v)(a) of the SC/ST Act does not contain any substantive offence. It is only a provision ensuring appropriate sentence for the IPC offences enumerated in the Schedule to the Act. When any IPC offence is committed against a member of any Scheduled Caste or Scheduled Tribe, and if the offence is proved, the court will have to impose adequate sentence as provided under Section 3(2)(v)(a) of the SC/ST Act. It is not a provision creating any substantive sentence. Anyway, the main allegation is under Section 3(1)(s) of the SC/ST Act. Let the regular court look into the matter and see whether bail can be granted. If the accused deserves bail, they can very well be granted bail on appropriate conditions.

It is submitted that the Police has registered a counter case as crime No. 977 of 2017. The copy of the said FIR shows that the said crime involves the offences under Sections 341, 323 and 326 IPC. The defacto complainant therein is the first accused in this crime. He had sustained fracture of one or two fingers in the alleged incident. This fact also will have to be considered by the trial court while taking decision on the request for regular bail in Crime No. 976 of 2017. On a consideration of all the relevant aspects, the trial court will have to take a proper and judicious decision on the request for regular bail.

In the result, the two appeals are disposed of, with a direction to the court below that in case application for regular bail is filed by the appellants on surrender, or on production on arrest by the Police during investigation, the same shall be judiciously and appropriately considered and decided as stated above, on the date of application itself.