Anticipatory Bail has no application to cases under SC/ST act

PRATHIV RAJ CHAUHAN VS UOI

In the present case the petitioner has raised the question relating to the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18[1]

“Section 438 of the Code of Criminal Procedure not to apply to persons committing an offence under the Act.—Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”

The main issue is the need and importance of protective discrimination provided to the SC and ST. taking the reference of the case of Subhash Kashinath Mahajan v. State of Maharashtra & Ors[2] a two judge bench of this court held that by excluding the anticipatory bail provisions of the Code of Criminal Procedure (by Section 18 of the Act) doesn’t mean an absolute bar for the grant of bail, where it was obvious to the court that the allegations about atrocities or violation of the provisions of the Act were false.

In the case of public servant they can only be arrested after the approval of appointing authority and in the case of others the approval of Senior Superintendent of Police is necessary. After the primary inquiry, only the case would be registered under this Act.

These directions were seen to be contrary to the spirit of the Act and received considerable comment in the public domain; the Union of India too moved this court for their review. In the review proceedings, a three judge bench of this court, in Union of India v. State of Maharashtra recalled and overruled those directions.

In the present case the court observed that while taking into account application seeking pre-arrest bail, “the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438[3] of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law.

Constitutional validity of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018 enacted to nullify the effects of the March 20, 2018 judgment of the court which had diluted the provisions of the Act.

A bench headed by Justice Arun Mishra said a preliminary inquiry is not essential before lodging an FIR under the act and the approval of senior police officials is not needed. The Act also does not provide for anticipatory bail to the accused being charged with SC/ST Act. Courts can, however, quash FIRs in exceptional circumstances.

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[1] “Section 18A. (i) For the purpose of this Act,-

(a) preliminary enquiry shall be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply

[2] (2018)   6   SCC   454

[3] Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely—

1 the nature and gravity of the accusation;

2 the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

3 the possibility of the applicant to flee from justice; and.

4 where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

1A. Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

1B. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including—

a condition that the person shall make himself available for interrogation by a police officer as and when required;

a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

a condition that the person shall not leave India without the previous permission of the Court;

such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).

Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code