S.3(2)(v) SC/ST Act Not Attracted In Absence Of Averment About Accused' Caste & His Awareness About Victim's Caste: Kerala High Court

The Kerala High Court has held that in order to attract an offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the accused must not be a member of the SC/ST community and must be shown to have committed the offence with the knowledge about victim's caste/ community. In the absence of an averment to that effect, the offence under Section 3(2)(v) would not be attracted.

Justice Kauser Edappagath observed,

"Merely because a person who does not belong to a member of a Scheduled Caste/Scheduled Tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more against a person belonging to a Scheduled Caste/Scheduled Tribe, the offence u/s 3(2)(v) would not get attracted...The word found in the provision being "knowingly", an allegation about the assailant's knowledge or awareness that the victim is a member of Scheduled Caste/Scheduled Tribe at the time of the commission of the atrocity described under the provision must be there. Without the element of knowledge being incorporated in the allegations, the offence is unlikely to be attracted."

The Court was hearing a criminal revision petition challenging the order of Special POCSO Court, dismissing the petition filed by the father of the victim seeking alteration or addition of charge. 

The revision petitioner is the father of the 5-year-old victim. The allegation of the prosecution is that the 2nd respondent-accused trespassed into the house of the victim, committed rape on her, thereafter murdered her. The petitioner alleged that since the 2nd respondent is a Christian and the victim belongs to Scheduled Caste, the offence under Section 3(2)(v) of the SC/ST Act is attracted. However, alleging inaction on the part of the investigating officer in incorporating the offence, he approached the Court. Aggrieved of dismissal by the POCSO Court, the instant revision was preferred.

The Counsel appearing for the petitioner, Advocate M. R. Rajesh contended that the accused was born to Christian parents and therefore he is Christian by birth. Even though he admitted that the father of the accused belonged to Hindu Parayan community, however, it was alleged that the father of the accused got converted to Christianity, got married as per Christian rites and thereafter the accused was born. The petitioner also submitted before the Court a report of Tahasildar which stated that the Tahasildar after enquiry found that the accused is Christian by birth.

On the contrary, the Counsel appearing for the accused, Adovcate S.K Adhithyan submitted that the accused is a Hindu Parayan by birth and produced a series of documents to substantiate his contentions. The Counsel contended that the report of the Tahasildar was issued without conducting proper investigation and without hearing the accused. The Counsel further contended that the petitioner does not have a case in the FIS that the accused was not a scheduled caste and he committed the crime knowing that victim is a scheduled caste and hence the offence u/s 3(2)(v) of the SC/ST Act will not be attracted

Senior Public Prosecutor Adovcate T. V. Neema relying on the Apex Court decision in P. Kartikalakshmi v. Sri Ganesh and anr., submitted that a petition for alteration of charge under Section 216 of CrPC cannot be entertained at the instance of either the prosecutor or the accused or the de facto complainant and it is strictly in the domain of the Court. 

Findings

The High Court found that in a subsequent decision of the co-equal bench, the Apex Court had held that even an informant/victim can seek alteration or addition of charge invoking S.216(1) of Cr.P.C. It also found that when conflicting views are taken in the decisions of two benches of equal strength of Apex Court, the decision passed in the later point of time, shall prevail over the earlier one. Thereby, the Court opined that the petition seeking alteration or addition of charge is maintainable.

Next, the Court observed that a reading of S. 3(2)(v) makes it clear that merely because a person who is not a member of SC/ST community commits any offence under IPC punishable with imprisonment for a term of 10 years or more against a person belonging to such community, the offence u/s 3(2)(v) would not get attracted. It emphasized on the 2016 amendment vide which the words 'knowing that such person is a member of a Scheduled Caste/Scheduled Tribe' were inserted in the provision.

Thus, the Court observed that subsequent to the amendment, sine qua non for application of Section 3(2)(v) of SC/ST Act is that the offence must be committed by a person who does not belong to the SC/ ST community against a person belonging to SC/ST community with the knowledge that such person (victim) belongs to SC/ST community.

The Court further observed that subsequent to the amendment, Section 8 of the Act which deals with presumptions as to offences was also amended and clause (c) was added, which provides that if the accused was acquainted with the victim/ family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless proved otherwise.

In the instant case however, the Court said that that there is no case either in the FIS, final report or in the statement of the petitioner given under Section 164 CrPC that the accused is not a member of SC/ST community or that he committed the offence with the knowledge that the petitioner is a member of such community. Thus it held that factual ingredients constituting the offence under section 3(2)(v) are not attracted and therefore observed that the alteration of charge sought for by the petitioner cannot be allowed.

Case Title: XXXXX v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 557

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