S. 3(1)(w) Of SC/ST Act Does Not Come Into Play When Offence Had No Reference To Prosecutrix's Caste : Delhi High Court
The Delhi High Court has held that to prosecute a person for an offence committed under Section Section 3(1)(w) of the SC/ST Act, the prosecution must show that the offence was committed in reference to the 'caste' of the victim/ prosecutrix.Section 3(1)(w) penalizes a person, not being a member of a Scheduled Caste or a Scheduled Tribe intentionally touches a woman belonging to a...
The Delhi High Court has held that to prosecute a person for an offence committed under Section Section 3(1)(w) of the SC/ST Act, the prosecution must show that the offence was committed in reference to the 'caste' of the victim/ prosecutrix.
Section 3(1)(w) penalizes a person, not being a member of a Scheduled Caste or a Scheduled Tribe intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent.
"The Complainant does not allege in her complaint that she was sexually victimised by reason of her caste status throughout her relationship with the Petitioner/Applicant," the Court noted in the facts of the instant case. It thus allowed the anticipatory bail application filed by the accused.
Justice Chandra Dhari Singh observed,
"It appears that the offences in the nature of sexual assault, alleged to have been committed by the Petitioner/Applicant, had no reference to the prosecutrix‟s caste, thereby, Section 3(1)(w) of the SC/ST Act does not prima facie come into play in the instant case."
Similarly, it noted that the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC/ST Act also do not prima facie attract because there is no allegation that the alleged casteist slur was made "within public view".
Section 3(1)(r) relates to intentionally insulting or intimidating with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Section 3(1)(s) penalizes abusing any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view.
In such circumstances, the Court added that the bar created by Sections 18 and 18A will not be applicable to the instant case. It observed,
"absence of the ingredients of Section 3(1)(w) of the SC/ST Act, or even for the offence under Sections 3(1)(r) and 3(1)(s) of the SC/ST Act, the question of applicability of the Sections 18 or 18A(2) of the SC/ST Act getting triggered does not arise in the instant case."
FIR alleging Sexual Offence
An FIR was filed against the Bail Applicant for charges related to Sections 376/506 of the Indian Penal Code, 1860 and Sections 3(1)(r) and 3(1)(s) of the SC/ST Act. The FIR was based on a Complaint by a divorced woman belonging to the Pasi Harijan Scheduled Caste category. It was alleged that the Petitioner made forceful physical relations, took objectionable pictures, extorted money, and threatened the Complainant with murder. Caste-based allegations were made based on an incident where the Applicant termed her as "Pasi".
Applicability of SC/ST Act
The Court assessed the evidence on the relationship between the parties. It was observed that the parties enjoyed a consensual relationship.
Finding no prima facie evidence for the applicability of SC/ST Act and following the Supreme Court case of Prithvi Raj Chauhan Vs Union of India and Others, 2020 SCC SC 159, the Court allowed the bail application on the following counts:
1. There was no caste-based sexual violence in the complaint's allegations throughout the relationship. An episode of the alleged caste-based slur was made only in the context of the Applicant refusing to marry the Complainant and not on sexual assault. It was noted that Section 3(1)(w) was not added in the original FIR but was added subsequently during court developments. Accordingly, Section 3(1)(w) of the SC/ST Act was held prima facie not applicable.
2. The alleged caste-based slur was not made in public view, as required in Sections 3(1)(r) and 3(1)(s) of the SC/ST Act. The Complainant had admitted that she had no recollection of any public person being present at the time of the incident. Accordingly, Sections 3(1)(r) and 3(1)(s) of the SC/ST Act was held not applicable to the Complainant's case.
3. Bar posed by Sections 18 and 18A(2) of the SC/ST Act against Section 438 CrPC was not attracted as no case was made out for an offence under the Act.
In Prithvi Raj Chauhan, the Supreme Court held that the High Court has inherent powers to grant pre-arrest bail in appropriate cases. Further, the bar against Anticipatory Bail under Section 18 of the SC/ST Act be invoked only if a prima facie case is made out. It was held in the case that:
"Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under the Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply."
In light of the established jurisprudence, the Court allowed the anticipatory bail application with directions to the Complainant to furnish a personal bond of Rs. 50,000 with surety of like amount from a family member to the Investigating Officer and other conditions.
Case Title: Joy Dev Nath v. State (NCT of Delhi)
Case No: BAIL APPN. NO. 4511/2021
Citation: 2022 LiveLaw (Del) 62
Date of Judgment: 28.1.2022