New Delhi: The Delhi High Court has held that to prosecute a person for an offence committed under Section Section 3(1)(w) of the SC/ST Act, the prosecution must show that the offence was committed in reference to the 'caste' of the victim/ prosecutrix.
According to legal news website Live Law, Section 3(1)(w) penalizes a person, not being a member of a Scheduled Caste or a Scheduled Tribe intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent.
"The Complainant does not allege in her complaint that she was sexually victimised by reason of her caste status throughout her relationship with the Petitioner/Applicant," the Court noted in the facts of the instant case. It thus allowed the anticipatory bail application filed by the accused.
Justice Chandra Dhari Singh observed, "It appears that the offences in the nature of sexual assault, alleged to have been committed by the Petitioner/Applicant, had no reference to the prosecutrix's caste, thereby, Section 3(1)(w) of the SC/ST Act does not prima facie come into play in the instant case."
Similarly, it noted that the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC/ST Act also do not prima facie attract because there is no allegation that the alleged casteist slur was made "within public view".
In such circumstances, the Court added that the bar created by Sections 18 and 18A will not be applicable "absence of the ingredients of Section 3(1)(w) of the SC/ST Act, or even for the offence under Sections 3(1) (r) and 3(1)(s) of the SC/ST Act, the question of applicability of the Sections 18 or 18A(2) of the SC/ST Act getting triggered does not arise in the instant case."