'Marunadan Malayali' Editor Shajan Skaria Moves Kerala High Court Against Denial Of Anticipatory Bail In MLA's Complaint; Order Reserved

The Kerala High Court on Monday reserved for orders the appeal filed by the editor and publisher of YouTube Channel Marunadan Malayali, Shajan Skariah, against rejection of anticipatory bail by Special Court in a case against him for allegedly broadcasting derogatory news item against MLA Sreenijin.

The Single Judge Bench of Justice V.G. Arun has posted the matter on Friday for pronouncement of the Order. 

The appellant-accused Skaria 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 case against the appellant was 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.

The Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Honey M. Varghese found the allegations levelled by the appellant against MLA Sreenijin, to be insulting and defamatory. The Court found that Skaria 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.

The present appeal avers that the appellant-accused had no intention to insult the de facto complainant amongst the general public. It has been stated that the impugned video does not mention the caste or community of the de facto complainant. 

The appellant submitted that even as per the allegations raised in the complaint against him, the de facto complainant had no grievance that he had been intimidated with an intent to humiliate him as a member of the SC/ST community, and that his only grievance was that he had been defamed. 

It has thus been averred by the appellant that the offence under the SC/ST (Prevention of Atrocities) Act has not been made out in the present case. He therefore sought the order of the Special Court to be set aside, prayed for grant of anticipatory bail. 

During the hearing today, the counsel for the appellant submitted that there was no intention on part of the appellant to humiliate the de facto complainant. "What he (the de facto complainant) feels is not relevant. What is relevant is only my intention," the Court was told.

The prosecution on a pointed query by the Court, submitted that while criticism is certainly not an offence, and an MLA cannot be said to have any immunity from criticism, the same could not be said for statements made to humiliate the person.

MLA Sreenijin, the de facto complainant, on his part averred that the appellant had clear knowledge that the former belonged to SC Community and that he is an MLA from the constituency reserved for the candidates belonging to SC Community. He alleged that the appellant intentionally humiliated him amongst the general public by making false allegations and intimidations through his YouTube video. 

"The appellant in the above stated video, deliberately made several other statements against the de facto complainant which is prima facie defamatory, misleading and intentionally intended to insult, intimidate and humiliate the de facto complainant in public view, to the effect that the de facto complainant being a member of SC Pulaya Community, not capable of holding the post of a MLA," it was averred. 

He also stated that the appellant deliberately promoted feelings of enmity, hatred and ill-will against the de facto complainant through his video.

"S3(1)(r) of the Act provides that, whoever, not being a member of a Scheduled Caste or Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within view, shall be punished. It is pertinent to note that the de facto complainant being the elected MLA from the constituent assembly reserved for the SC community, even though bearing this knowledge the appellant intentionally humiliate the de facto complainant and which prima facie made out case under section 3 (1)(r) of the Act," it was added. 

"This is not journalism, this is something else," the Court orally remarked during the hearing.

The appeal has been moved through Advocates Thomas J. Anakkallunkal, Jayaraman S., Litty Peter, Anupa Anna Jose Kandoth, Melba Mary Santhosh, Sruthy K.K., P.M. Rafiq, M. Revikrishnan, Ajeesh K. Sasi, Sruthy N. Bhat, Rahul Sunil, and Nikita J. Mendez, and Senior Advocate P. Vijaya Bhanu. 

Case Title: Shajan Skaria v. State of Kerala