J&K and Ladakh High Court held that the bar on anticipatory bail under Sections 18 and 18A SC/ST Act will not apply where the FIR does not prima facie make out offences under Sections 3(1)(r) and 3(1)(s).
The High Court of Jammu & Kashmir and Ladakh has held that the statutory bar against anticipatory bail under Sections 18 and 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not absolute, and will not apply where the allegations in the FIR do not prima facie disclose the ingredients of an offence under the Act. Justice Rajesh Sekhri delivered the ruling in Santosha Devi v. UT of J&K & Ors., CRM(M) No. 63/2026. The matter was reserved on March 24, 2026, pronounced on April 2, 2026, and uploaded the same day. The petitioner was represented by M/s J.P. Gandhi and Nipun Gandhi, Advocates, while the respondents were represented by Mrs. Monika Kohli, Senior AAG.
According to the prosecution case recorded in the order, respondent No. 2 lodged a written report on January 9, 2026 at Police Station Doda alleging that, during a public function held on January 8, 2026 for inauguration of a road at Kastigarh, the petitioner, a member of the District Development Council, Kastigarh, and her sons attacked the complainant and others. The complaint alleged physical violence, intimidation, threats, and use of criminal force, and further alleged that the petitioner, armed with a scissor, inflicted injuries on the complainant party. It was also alleged that she publicly humiliated the complainant by using the expression “chinal,” while knowing that he belonged to the ‘Megh’ community, a Scheduled Caste. On that basis, FIR No. 09 of 2026 was registered for offences under Sections 126(2), 115(2), 351(2) and 352 of the Bharatiya Nyaya Sanhita, read with Sections 3(1)(r) and 3(1)(s) of the SC/ST Act.
The investigating agency recorded statements of eyewitnesses under Sections 180 and 183 BNSS and also recorded statements of the local Lumbardar and Chowkidar, who stated that the word “chinal” was locally understood as an abusive caste-based slur linked to the ‘Megh’ community. The agency also collected electronic evidence, including videos and photographs, and obtained caste certificates showing that the complainant belonged to the ‘Megh’ Scheduled Caste and the petitioner belonged to the ‘Jaral’ Rajput general category. The agency concluded that offences under Sections 115(2), 352 BNS and Sections 3(1)(r) and 3(1)(s) of the SC/ST Act were made out. The petitioner’s son Swarn Veer Singh Jaral was arrested on January 26, 2026 and released on bail by the trial court on January 30, 2026. The petitioner’s own pre-arrest bail plea was dismissed by the Principal Sessions Judge (Special Judge), Bhadewah on January 21, 2026, which led to the present petition under Section 528 BNSS read with Section 14A(2) of the SC/ST Act.
Before the High Court, the petitioner argued that the word “chinal” did not, by itself, satisfy the ingredients of Sections 3(1)(r) and 3(1)(s) of the Act. It was submitted that the expression had different meanings, including one drawn from internet sources and another from local usage, and could not automatically be treated as a caste name or caste-based abuse. The petitioner also contended that the incident arose in the course of a political confrontation at the function and that the complaint had been lodged with mala fide intent. Relying on Shajan Skaria v. State of Kerala (Criminal Appeal No. 2622 of 2024, decided on August 23, 2024), Keshaw Mahto @ Keshaw Kumar Mahato v. State of Bihar & Anr. (SLP (Crl.) No. 12144 of 2025, decided on January 12, 2026), and Prathvi Raj Chauhan v. Union of India, AIR 2020 SC 1036, counsel argued that the bar under Sections 18 and 18A would not apply where the FIR does not prima facie disclose an offence under the SC/ST Act.
The respondents opposed the plea, contending that the petition itself was barred by Sections 18 and 18A of the Act. The State argued that the petitioner had not only participated in the assault but had also used a sharp-edged weapon and intentionally uttered a caste-based derogatory slur in public view while knowing the complainant’s caste identity. It was further argued that the investigating agency had collected video and photographic material supporting the allegations and had also recorded statements of local witnesses who confirmed the caste-linked meaning of the expression in question. Mrs. Monika Kohli, Senior AAG, also submitted that the petitioner had, in a press conference after the incident, admitted having abused the complainant in caste terms.
Justice Rajesh Sekhri examined Sections 3(1)(r), 3(1)(s), 18 and 18A of the SC/ST Act and Section 438 CrPC, and referred to the Supreme Court’s rulings in Shajan Skaria, Prathvi Raj Chauhan, Keshaw Mahto and Kiran v. Raj Kumar Jivraj Jain & Anr. The Court noted that under Shajan Skaria, the decisive test is whether the complaint or FIR prima facie discloses the ingredients necessary to constitute an offence under the Act. The Court quoted paragraphs 48 and 49 of Shajan Skaria and observed that if those ingredients are not disclosed on a prima facie reading, “the bar of Section 18 would not apply and the courts would not be absolutely precluded from granting pre-arrest bail to the accused persons.”
The Court also referred to Keshaw Mahto, where the Supreme Court held that, for Section 3(1)(s) to apply, the accused must abuse a member of a Scheduled Caste or Scheduled Tribe “by the caste name” in a place within public view, and that the allegations must show that the abuse was laced with the caste name or that the caste name itself was hurled as an abuse. Justice Sekhri further observed that not every insult to a member of an SC/ST community qualifies as an offence under the Act; what is required is caste-based humiliation targeted at the victim because of caste identity. At the same time, the Court held that even a single caste-based abuse may suffice if it is directed by caste name and intended to humiliate in public view.
On the petitioner’s argument that the word “chinal” had non-caste meanings, the High Court held that a court hearing a bail plea cannot embark on a “mini trial” to resolve disputed factual questions such as whether the expression is caste-based, gender-specific or religious in local usage. The Court said that such questions can only be examined at a full trial, and that the test at the anticipatory bail stage remains whether the FIR and complaint prima facie disclose the ingredients of the offence. The Court also rejected the petitioner’s submission that the term could not amount to a caste name merely because it does not figure in the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956, as published on October 31, 2019. The Court noted that the investigating agency had recorded statements that the term was locally understood as a slur linked to the ‘Megh’ caste, which does appear in the Scheduled Castes list.The Court also rejected the broader argument that a single-word abuse could never constitute an offence under the Act. Referring to Keshaw Mahto and Kiran v. Raj Kumar Jivraj Jain & Anr., Justice Sekhri held that whether the abuse consists of one word or more than one word is immaterial if the required ingredients of Section 3(1)(s) are otherwise made out. The Court observed that a single caste-based abuse can be sufficient if it specifically targets the victim’s caste identity and is uttered in public view with the necessary intent
Having set out the governing principles, the Court turned to the material in the present case. Justice Sekhri observed that courts are not bound to accept the FIR as “gospel truth” where there is material available to test whether the alleged special offence is genuinely disclosed. Following Shajan Skaria, the Court examined the video recording of the occurrence and the petitioner’s press conference, both of which were relied upon by the respondents. After reviewing the recordings, the Court found that although the petitioner could be seen assaulting someone in the incident video, nothing incriminating in relation to Sections 3(1)(r) and 3(1)(s) of the SC/ST Act was discernible from it, as only commotion could be seen and heard and nothing was clearly audible. As to the press conference, the Court found that while the petitioner admitted assaulting the complainant party in self-defence, there was no assertion or admission that she had abused the complainant by his caste name.
On that basis, the High Court held that there was nothing in the video transcript or the press conference material “to even prima facie indicate” that the ingredients of Sections 3(1)(r) or 3(1)(s) were made out against the petitioner, though other penal offences under general criminal law may still be constituted. The Court accordingly concluded that the bar under Sections 18 and 18A of the SC/ST Act was not attracted in the facts of the case.
The High Court allowed the petition and directed that, in the event of arrest, the petitioner be released on bail on furnishing a surety bond of Rs. 25,000 and a personal recognition bond of the like amount. The Court imposed conditions that she shall not leave the territorial jurisdiction of the concerned police station without prior permission of the trial court; shall appear before the Investigating Officer as and when called and cooperate in the investigation; shall attend in accordance with the conditions of the bail bonds; shall not commit a similar offence; and shall not directly or indirectly induce, threaten or promise any person acquainted with the facts of the case or tamper with evidence. The Court further clarified that nothing in the order should be construed as an expression on the merits of the case and that the trial court would proceed uninfluenced by the observations in the bail order. The petition was accordingly disposed of.
