A criminal appeal filed in the Kerala High Court seeking anticipatory bail for the accused on the contention that the alleged place of occurrence of crime (i.e courtyard) cannot say to be a place within public view. It further claimed that it does not attract the penalty under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Vishak and Anr. v. State of Kerala).
The accused trespassed into the courtyard of the Complainant’s house, who belongs to a scheduled caste. He assaulted her and also abused her using the name of her caste.
The incident was registered under Sections 448, 323, 341, 354, 308 and 427, read with Section 34 of the Indian Penal Code and Section 3(1)(w)(i) and 3(1)(s) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The counsel for the appellants submitted before the Court that the allegations against the accused do not form the offences under the SCST (Prevention of Atrocities) Act, 1989 and thus, the anticipatory bail sought by the appellants should be permitted.
The counsel further elaborated on his previous contention that offence under Section 3(1)(w)(i) (touching a woman belonging to a Scheduled Caste or a Schedule Tribe without her consent) is not made out since the materials do not state that the accused have touched the body of the complainant with sexual intent.
It was also pointed out that the alleged abuse by caste name would not make out the offence under Section 3(1)(s) (abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view) of the Act as the place of occurrence cannot be said to be a place within public view.
The Court relied on the First Information Report, made by the complainant, which states that the place of occurrence of the incident was the victim’s courtyard.
Further, the Court also relied on the judgment of the Apex Court in Swaran Singh and Ors. V. State [2008 KHC 4926], which read, “We must therefore do not confuse the expression ‘place within public view’ with the expression ‘public view’. A place can be a private place but yet within public view”. The Apex Court further said, “if the offence is committed outside the building, e.g. in a lawn outside a house and someone can see the lawn, then the lawn would certainly be a place within the public view”.
The question before the Kerala High Court is whether the prima facie case has been made out. According to the Court, the place of occurrence of the incident was a courtyard which cannot be contented as a prima facie that it is not a place within public view.
Thus, the Court through Justice PB Suresh Kumar dismissed the bail plea moved by the men accused of using a casteist slur, assaulting and molesting a woman in her courtyard. It is made clear by the Court that the dismissal of this will not prevent the Court from considering the application of the appellants for regular bail under the law.
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