When Offence U/S 74 BNS Is Made Out, Section 3(2)(Va) Of SC/ST Act Would Automatically Be Attracted: Kerala High Court
The Court upheld the anticipatory bail to five accused after investigation found no evidence to substantiate allegation of caste-based assault on an inter-faith couple, during church festival.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has reiterated that where an offence under Section 74 of the BNS, a scheduled offence under the SC/ST (Prevention of Atrocities) Act, is made out against the accused, Section 3(2)(va) of the SC/ST Act stands automatically attracted, provided the accused's knowledge that the victim belongs to a Scheduled Caste or Scheduled Tribe is discernible from the material on record. The Court clarified that this automatic attraction, and the consequent statutory bar on anticipatory bail under Section 18 of the Act, is contingent on a scheduled offence being made out prima facie from the prosecution case in the first place.
Applying this principle to the facts before it, the Court upheld the grant of anticipatory bail to five accused persons in a case arising out of an alleged assault on a woman (Hindu) from the Scheduled Caste community and her husband (Christian), who belonged to different religious communities, following a church festival. The Court held that the bar under Section 18 could not be invoked where the Investigating Officer's own report, filed after detailed investigation, recorded that no evidence had been obtained to substantiate the incident as narrated in the complainant's First Information Statement, thereby negating any prima facie case under Section 74 of the BNS or Section 3(2)(va) of the SC/ST Act.
A Bench of Justice A. Badharudeen observed, “In the investigation conducted so far in this case, no evidence has been obtained to substantiate the incident, as described in the First Information Statement of the complainant. It is well settled law that, when an offence under the SC/ST Act is made out prima facie from the prosecution case, the bar under Section 18 would operate. Similarly, when an offence under Section 74 of the BNS is made out, Section 3(2)(va) of the SC/ST Act would automatically be attracted”.
Advocate Sarath K.P. appeared for the appellant and Sajeev P.K., Public Prosecutor appeared for the respondent.
The matter originated from a matrimonial dispute following the appellant's marriage to a man from a different religious community, which was allegedly not accepted by the local church community. The appellant alleged that on the intervening night of January 04-05, 2026, while returning from a church festival, she and her husband were assaulted by the accused, who used casteist slurs and physically assaulted her and her husband's friends. A complaint was sent by post on January 05, 2026, followed by further complaints, culminating in registration of FIR on April 13, 2026 alleging offences under the BNS and Sections 3(1)(r), 3(1)(s), 3(1)(w)(i) and 3(2)(va) of the SC/ST (POA) Act.
The accused persons had earlier been proceeded against by the appellant and her husband in a separate, prior-registered crime arising from the same night's events, in which they themselves were named as accused.
Their anticipatory bail applications in that matter had led to proceedings before the Supreme Court, whose observations regarding non-registration of the appellant's complaint eventually prompted registration of the present FIR. The Special Court, on considering the rival contentions, granted anticipatory bail to the accused on finding that no offence under the SC/ST Act was prima facie made out, which order was under challenge in this appeal.
Considering the report and case diary produced by the Public Prosecutor, the Court noted significant inconsistencies in the complainant's version, including discrepancies in the time and place of occurrence, and injuries recorded during medical examination against those alleged. Crucially, the Investigating Officer's report stated in unambiguous terms that no evidence had been obtained during investigation to substantiate the incident as described in the complainant's FI statement. The Court held that since no prima facie case under Section 74 of the BNS, or consequently under Section 3(2)(va) of the SC/ST Act, was disclosed, the bar under Section 18 of the SC/ST Act did not operate, and the grant of anticipatory bail required no interference.
The appeal was accordingly dismissed, and the order granting anticipatory bail to the accused was upheld.
Cause Title: XXXXXXXXXX v. State of Kerala and Others (Neutral Citation: 2026:KER:68580).
Appearances:
Appellant: Sarath K.P., Sruthy K.K., P.V. Uttara, Advocates.
Respondent: Sajeev P.K., Public Prosecutor, Philip T. Varghese, Thomas T. Varghese, Achu Subha Abraham, V.T. Litha, K.R. Monisha, Jincy C.J., Anjali G. Krishnan, Nitya R, Advocates.