The Kerala High Court on Friday dismissed the appeal filed by the editor and publisher of YouTube Channel Marunadan Malayali, Shajan Skariah, against rejection of anticipatory bail by Special Court in a case against him for allegedly broadcasting derogatory news item against MLA Sreenijin.
“It is pertinent to note that the allegations levelled against the second respondent include murder and contains insinuation against the second respondent’s father in law, aspersions on unnamed judicial officers and bestows the title ‘Mafia Don’ on the second respondent. As such, it can unhesitatingly be held that the video contains insults, which are intended to humiliate the second respondent (MLA Sreenijin) in public view,” the Single Judge Bench of Justice V.G. Arun observed while passing the order.
The appellant-accused Skaria had telecast a news item regarding alleged mal-administration of Sports Hostel at the instance of de facto complainant in his capacity as the Chairman, District Sports Council.
The prosecution case against the appellant was that the said news item contained false, baseless and defamatory allegations against the de facto complainant, who belongs to the scheduled caste, with an intention to insult him. It was further alleged that the said news item promoted feelings of enmity, hatred, or ill-will against members of the scheduled caste or scheduled tribe.
The Special Judge for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Honey M. Varghese found the allegations levelled by the appellant against MLA Sreenijin, to be insulting and defamatory. The Court found that Skaria had knowledge that the de-facto complainant belongs to scheduled caste community, and that the publication of the news item containing derogatory comments through his YouTube channel was sufficient to attract the offence alleged under the SC/ST (Prevention of Atrocities) Act, 1989.
The present appeal averred that the appellant-accused had no intention to insult the de facto complainant amongst the general public. It was stated that the impugned video does not mention the caste or community of the de facto complainant.
The appellant further submitted that even as per the allegations raised in the complaint against him, the de facto complainant had no grievance that he had been intimidated with an intent to humiliate him as a member of the SC/ST community, and that his only grievance was that he had been defamed. It was thus averred that the offence under the SC/ST (Prevention of Atrocities) Act has not been made out in the present case. He therefore sought the order of the Special Court to be set aside, prayed for grant of anticipatory bail.
It was contended on behalf of the appellant that mere insult or humiliation is not sufficient to attract the offence under Section 3(1)(r) of the Act, 1989. ection 3(1)(r) contemplates instances wherein a victim has been insulted and humiliated by reason of being a member of the Scheduled Caste or Scheduled Tribe. The appellant averred that there was no mention of the second respondent’s caste in the video clip.
The appellant further submitted that for the offence under Section 3(1)(u) of the Act, 1989, which criminalises any communication that promotes or attempts to promote feelings of enmity, hatred or ill-will against the members of the Scheduled Castes and Scheduled Tribe to arise, hatred or ill-will should be promoted or attempted to be promoted against members of Scheduled Caste or Scheduled Tribe, and not merely criticizing an individual member. “It is submitted that provisions of the Act cannot be utilized for curtailing the journalistic freedom of the appellant,” the counsels added.
MLA Sreenijin, the de facto complainant, on his part averred that the appellant had clear knowledge that the former belonged to SC Community and that he is an MLA from the constituency reserved for the candidates belonging to SC Community. He alleged that the appellant intentionally humiliated him amongst the general public by making false allegations and intimidations through his YouTube video.
“The appellant in the above stated video, deliberately made several other statements against the de facto complainant which is prima facie defamatory, misleading and intentionally intended to insult, intimidate and humiliate the de facto complainant in public view, to the effect that the de facto complainant being a member of SC Pulaya Community, not capable of holding the post of a MLA,” it was averred.
He also stated that the appellant deliberately promoted feelings of enmity, hatred and ill-will against the de facto complainant through his video.
“S3(1)(r) of the Act provides that, whoever, not being a member of a Scheduled Caste or Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within view, shall be punished. It is pertinent to note that the de facto complainant being the elected MLA from the constituent assembly reserved for the SC community, even though bearing this knowledge the appellant intentionally humiliate the de facto complainant and which prima facie made out case under section 3 (1)(r) of the Act,” it was added.
It was conceded by the DGP T.A. Shaji appearing on behalf of the respondent that while the second respondent being a politician and people’s representative, can be criticized with respect to his actions, the criticism could not be taken to the extent done by the appellant. It was alleged that the appellant had gone to the extent of calling the second respondent a ‘murderer’ and ‘Mafia Don’, and made insinuations against the latter’s father-in-law, a former Chief Justice of the Supreme Court of India. It was thus argued that the offences under Sections 3(1)(r) and 3(1)(u) would thus be applicable in the present case.
The Court in this case pondered as to whether videos like the one under consideration had changed the nature of journalism to ‘Defame, Denigrate, Damnify and Destroy’.
The Court was faced with the question as to whether the offence under Section 3(1)(r) of the SC/ST (Prevention of Atrocities) Act, 1989 would find application herein, in the absence of reference to the caste status of the second respondent in the news item. It thus opined that the same could not be decided without due regard to the object behind the enactment and the amending Act in 2019.
The Court observed that the statute had been enacted for preventing the commission of atrocities against members of the Scheduled Castes and Scheduled Tribes and to establish Special Courts for the trial of such offences and provide relief and rehabilitation to the victims of such offences. It further observed that the Act was amended in 2019 on finding that, despite various measures to improve the socio-economic conditions of the scheduled Castes and Scheduled Tribes, they still remained vulnerable.
The Court thus found that the materials on record indicated that the video was intended to insult and humiliate the second respondent.
“At this stage, the court can only go by the allegations in the complaint and the attendant circumstances. The allegation is specific to the effect that the appellant has been insulting and humiliating the second respondent only for the reason that he belongs to the Scheduled Caste,” the Court noted.
It added that as per Section 3(1)(r) of the Act, 1989, reference to the caste name of the victim is not necessary for attracting the offence.
“As such, it is not possible to hold that there are no prima facie materials to attract the offence under Section 3(1)(r),” the Court held.
It accordingly refrained from deciding whether the offence under Section 3(1)(u) of the Act, 1989, in view of its finding on Section 3(1)(r).
The appeal was thus dismissed by the Court.
The appellant was represented by Senior Advocate P. Vijaya Bhanu, and Advocates Thomas J. Anakkallunkal, Jayaraman S., Litty Peter, Anupa Anna Jose Kandoth, Melba Mary Santhosh, Sruthy K.K., P.M. Rafiq, M. Revikrishnan, Ajeesh K. Sasi, Sruthy N. Bhat, Rahul Sunil, and Nikita J. Mendez. Senior Government Pleader S. Saju, Senior Government Pleader and Additional Public Prosecutor Salil Narayanan, DGP T.A. Shaji, and Advocates P.K. Varghese, K.S. Arun Kumar, M.T. Sameer, Dhanesh V. Madhavan, Jerry Mathew, and Reghu Sreedharan appeared on behalf of the respondents.
Case Title: Shajan Skaria v. State of Kerala
Citation: 2023 LiveLaw (Ker) 298
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