Ziyad Rahman A.A., J
1. The appellant is the accused in Crime No.712/2022 of Ernakulam Town North Police Station. This Crl.Appeal is filed under Section 14A of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC/ST Act’) against the rejection of
the application for bail submitted by the appellant before the Special Court for the trial of cases relating to SC/ST Act (Court of Session, Ernakulam
Division) (hereinafter referred to as ‘Special Court’).
2. The appellant is implicated in the aforesaid crime as the 1st accused. The Crime was initially registered for the offences punishable under Sections
294B, 506, 509 r/w. Section 34 of the Indian Penal Code (IPC) and Section 3 of the SC/ST Act. Subsequently, a further report was submitted by the
Police by which the offences under Sections 354A(i)(iii) (iv) of IPC, Section 3(1)(r), 3(w)(ii) and 3(2) (va) of SC/ST Act and Sections 66E and 67A
and 84C of Information Technology Act, 2000 (hereinafter referred to as I.T.Act) were also incorporated.
3. The aforesaid Crime was registered based on a complaint submitted by the 2nd respondent herein on 27.5.2022. The F.I.R. was registered on
15.6.2022. The contents of the complaint submitted by the 2nd respondent are as follows:
The 2nd respondent was working as an employee under the appellant in his online channel, 'Crime Online’. While working in the establishment of
the appellant, the appellant allegedly compelled her to make a video programme by creating nude pictures of a lady Minister of the State. As she
expressed her unwillingness to do the same, the appellant herein allegedly communicated sexually coloured remarks and lasciviously described her
body in the presence of others, thereby mentally torturing her. Annexure-II is the F.I.R. and the complaint submitted by the 2nd respondent against the
appellant.
4. In connection with the investigation of the said crime, the appellant was arrested on 17.6.2022, and since then, he has been under judicial custody.
An application viz. Crl.M.C.No.1392/2022 was filed by the appellant before the Special Court seeking bail, but as per the order dated 28.6.2022, the
aforesaid application was rejected. This appeal is submitted in such circumstances.
5. When this Crl.Appeal came up for consideration, notice of the appeal was directed to be furnished to the 2nd respondent through Station House
Officer. Accordingly, notice was given to her. The 2nd respondent appeared through counsel and also submitted a written objection along with certain
records strongly opposing the prayer sought by the appellant. The learned Public Prosecutor also opposes the appeal.
6. I have heard Sri. S.Rajeev, the learned counsel appearing for the appellant, Sri. S.U.Nazar, the learned Special Government Pleader
(Criminal)/Public Prosecutor and Smt. K.Nandini, the learned counsel appearing for the 2nd respondent/victim.
7. The contention put forward by the learned counsel for the appellant is that, the complaint submitted by the 2nd respondent and the registration of
crime was without any materials. According to the learned counsel for the appellant, even though the 2nd respondent worked as an employee in his
establishment for some time, on account of certain illegal acts committed by her along with some other persons, he was compelled to submit a
complaint before the Police, and it resulted in the registration of Annexure-I F.I.R. which is numbered as Crime 436/2022 of Info Park Police Station
against the 2nd respondent and three others for the offences punishable under Sections 120B, 294(b), 506 r/w. Section 34 of the IPC and also under
Section 120(O) of the Kerala Police Act. The aforesaid F.I.R. was registered on 15.6.2022, and the present proceedings are a counterblast to the said
case. It is also alleged that the appellant is a journalist by profession and is conducting an online news channel through which he is interfering in
sensitive issues in the society and he has many enemies both in politics and among influential persons. It is pointed out that, on account of the same,
the appellant is continuously implicated in various criminal cases at the instance of such influential persons. The learned counsel also submitted that the
appellant has been in custody from 17.6.2022, and about 31 days have already elapsed. In the meantime, the police custody of the appellant was
permitted by the court, and a search was conducted in the office of the appellant. According to the learned counsel, no incriminating materials to
support the allegations in the F.I.R. could be procured by the Investigating Officer so far. It is the further contention of the learned counsel that the
offences alleged against the appellant are punishable with maximum imprisonment of 5 years, and the materials available on record would not be
sufficient to attract the aforesaid offences. In such circumstances, the prayer for setting aside the order passed by the Special Court is sought.
8. The learned Public Prosecutor seriously opposes the contentions above. It is pointed out that, in addition to the present case, the appellant is
involved in four other cases, and the details of the same were also made available by the learned Special Public Prosecutor. It is pointed out that
Crime No.712/2022 was registered for the offences punishable under Sections 294(b),354A(i)(iii)(iv), 506 and 509 r/ w. Section 34 of the IPC and
Section 3(1)(r), 3(w)(ii) and 3(2)(va) of SC/ST Act and Section 66E, 67A and 84C of the I.T. Act and the aforesaid crime was registered on the
allegation that the appellant had uploaded certain videos on his YouTube channel, which contained certain lascivious remarks on a lady Minister of the
State. It is further pointed out that though the appellant was released on bail in some of the cases, his bail was cancelled later because he violated the
bail conditions as he committed similar offences at the subsequent point of time. The learned Public Prosecutor seriously opposes the prayer sought
for in the appeal by mainly highlighting the appellant's criminal antecedents. It is pointed out that, if the appellant is released on bail, he is likely to
threaten and influence the witnesses.
9. The learned counsel appearing for the 2nd respondent also opposes the aforesaid prayer sought for by the appellant. My attention was also brought
to the objection filed by the 2nd respondent, which contains a detailed description of her grievances. It is pointed out that at the time of the commission
of the crime, the appellant was aware that the 2nd respondent belonged to SC/ST community. To substantiate the same, the learned counsel places
reliance upon Exhibits R2(a) and R2(b), which relate to a video programme created by the appellant in connection with a litigation in which the victim
was a party. Earlier, during the month of March 2022, before her joining in the establishment of the appellant, the appellant contacted the 2nd
respondent in connection with the making of a programme in respect of a case involving the property of the 2nd respondent. A news item in
connection with the same was prepared by the appellant, as evidenced by Annexures R2(a) and R2(b) and from the contents of the same, it can be
clearly seen that, the appellant was aware of the status of the 2nd  respondent as a person belonging to Scheduled Caste. Therefore, it is contended
that, the appellant committed the aforesaid acts with the specific knowledge of her caste status. Hence, the offences under the provisions of the
SC/ST Act are attracted. She also submitted that, on account of the illegal acts committed by the appellant, she was compelled to submit her
resignation on 24.5.2022 and immediately thereafter, the complaint was submitted on 27.5.2022. In response to the contention of the appellant that the
complaint submitted by her was a retaliation of the crime registered against her, it was pointed out that the complaint is dated 27.5.2022, whereas
Annexure-I F.I.R. was registered against her only on 15.6.2022. The learned counsel for the 2nd respondent thus seriously opposes the prayer sought
for in the appeal.
10. I have perused the records, including the Case Diary made available by the learned Public Prosecutor. Among the offences alleged against the
appellant, the punishment for the offences under Section 3(1)(r) and 3(w)(ii) of the SC/ST Act may extend to 5 years with a fine. Similarly, the
offence under Sections 66E of the I.T. Act is punishable with imprisonment for up to three years or with a fine, and the offence under Section 67A of
the said Act is five years with a fine. Section 84C of the I.T. Act deals with the attempt to commit offences under the said Act. The term of
imprisonment contained therein is half of the term of the punishment for the offence attempted to be committed. The remaining offences alleged
against the appellant are punishable with imprisonment for a term of three years or lesser.
11. When the offences under the provisions of the SC/ST Act are taken into consideration, it can be seen that, on going through the contents of the
written complaint submitted by the appellant, based on which FIR is registered, it is not explicitly stated by the 2nd respondent/defacto complainant that
she was subject to harassment because of the fact that she belongs to scheduled caste. Apart from the above, as far as the offence under Sections
66E and 67A of the I.T. Act are concerned, the only material so far collected by the Investigating Officer is the statement of the 2nd
respondent/defacto complainant. On going through the contents of F.I. statement which is in the form of a written complaint as mentioned above, it
can be seen that the allegation is that the defacto complainant was asked to offer help to the appellant herein for creating certain nude pictures of a
lady Minister. It is also alleged that, when she refused to offer such help she was harassed by making certain sexually coloured remarks about her
body.
12. The learned Public Prosecutor brought my attention to the further statement of the defacto complainant recorded under 161 of Cr.PC. It is true
that the aforesaid statement contains further details of the crime allegedly committed by the appellant. It includes an allegation that the 2nd
respondent/defacto complainant was asked to pose for nude photographs to enable the appellant to use the same for creating new images of a lady
Minister. However, even after going through the entire materials so far collected and available in the case diary, apart from the statement of the 2nd
respondent/defacto complainant, no other materials could be collected by them to substantiate the offences under Sections 66E and 67A of the I.T.
Act. Section 66E of the I.T.Act is attracted only when a person intentionally or knowingly captures, publishes or transmits the image of private area of
any person without his or her consent. In this case, despite anxiously going through the entire materials, I could not find any materials indicating any
such capture, publication or transmission of the image of a private area of any person.
13. When coming to the allegation regarding Section 67A of the I.T. Act, there also, as of now, no materials could be find out to establish the same.
The aforesaid offence would get attracted when a person publishes or transmits or causes to be published or transmitted in the electronic form any
material which contains sexually explicit act or conduct. In this case, even going by the First Information Statement made by the 2nd respondent, there
is no allegation that any such publication /transmission was actually made by the accused. Therefore, if at all the allegations in the F.I.R. is taken into
consideration, what would be attracted is only the offence under Section 84C of I.T.Act, which is for attempting to commit the offences under the
Act. The maximum punishment that can be imposed for the said offence is half of the term prescribed for the offence which attempted to have been
committed. Among the offences under the I.T.Act, the highest term of imprisonment prescribed is for the offence under Section 67A, which is five
years. Therefore, the maximum punishment that can be awarded under Section 84C of I.T.Act can only be, 2½ years, as far as the offences under
the IT Act are concerned.
14. When considering the allegations regarding the offences under the SC/ST Act, the main contention of the 2nd respondent is that the appellant
committed the acts above with the specific knowledge that the 2nd respondent belongs to the Scheduled Caste community. However, on going through
the contents of the F.I. Statement, there is nothing to infer that the acts allegedly committed by the appellant because of the fact that the 2nd
respondent belongs to the SC/ST community. While making the aforesaid observations, I am conscious of the fact that the offence under Sections 3(1)
(w) (ii)and 3(2)(va)of the SC/ST Act would get attracted on mere knowledge that the victim belonged to the Scheduled Caste community. However,
in this case, even going through the entire materials, it can be seen that, apart from the statement of the victim, so far, no other materials could be
collected for establishing the offences alleged against the appellant. When considering the offences under the Indian Penal Code alleged against the
appellant are taken into consideration, the maximum punishment that can be imposed is imprisonment for up to a period of three years or with a fine.
Here again, other than the statement of the victim, no other materials were collected.
15. It is discernible from the records that the appellant was arrested on 17.6.2022. He was given in police custody for some time, and the police have
already searched the appellant's office premises. The learned Public Prosecutor pointed out that, during such search, several materials could be
collected by the investigation team, which indicates that the appellant is in the habit of making false stories by creating documents for the same. Some
documents are part of the case diary, and I have gone through the same. There are indeed several documents among the seized documents that may
be defamatory to several persons. However, it can be seen that none of the said documents are about the allegations contained in this case. However,
the contention of the learned Public Prosecutor based on such materials is that the aforesaid articles coupled with the implication of the appellant in
four other cases clearly reveal his guilty mind and criminal antecedents.
16. In response to the same, the learned counsel for the appellant relies on the judgment passed by the Hon’ble Supreme Court in Prabhakar
Tewari v. State of U.P. and Ors. [(2020) 11 SCC 648]. In the said decision, the Hon’ble Supreme Court observed that criminal antecedents by
themselves could not be a reason to reject an application for bail. In my view, criminal antecedents can indeed be one of the relevant aspects, among
other aspects, to be taken note of while considering bail. In this case, after going through the gravity of the offences, the nature of the allegations and
the materials so far collected, I am of the view that the appellant can be released on bail. This is particularly because even though certain allegations
against the appellant are serious in nature, on going through the written complaint submitted by the 2nd respondent, it can be seen that details of many
of the allegations are not mentioned. Of course, in the statement submitted by her under Section 161 of Cr.PC, she provided further details. However,
the absence of relevant materials in the F.I.R, which was registered on a written complaint submitted by her after a reasonable time which enabled
her to make up her mind, is a crucial aspect to be taken note of for the purpose of bail. In the F.I.R. registered, the alleged incident is reported to have
occurred between 20.04.2022 and 24.4.2022, whereas the complaint was submitted after a month of the said incident, which is 27.5.2022. The learned
counsel for the 2nd respondent disputed this entry by submitting that the incidents occurred between 20.04.2022 and 24.05.2022, the date on which she
resigned from the appellant's establishment. However, the relevant entry in the FIR is otherwise, and no further reports in this regard are seen
submitted by the Investigation Officer so far before the court. The FIR was registered after one month of the same, which was on 15.6.2022.
Therefore, considering the nature of allegations contained in Annexure-II F.I.R., the aforementioned aspects are also very much relevant. Now the
appellant is under detention for more than 30 days. The Police were granted custody of the appellant for some time, and the search and seizure were
already effected. The respondents have no case that any further recovery is to be made from the appellant. The main apprehension voiced by the
respondents appears to be the influence/threat that is likely to be caused by the appellant on the victim and other witnesses if he is released. In my
view, such apprehension can be addressed by imposing appropriate conditions. Therefore further incarceration of the appellant is not necessary.
In the result, this Crl.Appeal is allowed. The impugned order passed by the Special Court for the trial of cases relating to the SC/ST Act (Court of
Session, Ernakulam Division) in Crl.M.C.No.1392/2022 dated 28.6.2022 is hereby set aside. The appellant is directed to be released on bail subject to
the following conditions:
1) The appellant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like
sum to the satisfaction of the Special Court for the trial of cases relating to SC/ST Act, Ernakulam
2) The appellant shall fully co-operate with the investigation.
3) The appellant shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m on every Wednesday until the filing of the final
report.
4) The appellant shall also appear before the Investigating Officer as and when required.
5) The appellant shall not commit any offence of like nature while on bail.
6) The appellant shall not make any attempt to contact the 2nd respondent victim, or any of the prosecution witnesses, directly or through any other
person, or in any other way attempt to tamper with the evidence or influence any other persons related to the investigation.
7) The appellant shall not leave the State of Kerala without the permission of the trial Court.
8) In case of violation of any of the above conditions, the Special Court for the trial of cases relating to SC/ST Act, Ernakulam shall be empowered to
consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law.
