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Section 438 of CrPC shall not apply to cases under SC-ST Act except when there is no Prima facie cas


The bench comprising of Hon’ble Justice Arun Mishra), Hon’ble Justice Vineet Saran and Hon’ble Justice Ravindra Bhat pronounced the Judgment.

The Court observed that; Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989.   However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.

The petitioners have questioned the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as well as section 18A.

It was contended that the Court has noted in Dr. Subhash Kashinath Mahajan v. The State of   Maharashtra  &  Anr. that the provisions of the Act of 1989 are being misused as such the amendment is arbitrary, unjust, irrational and violative of Article 21 of the Constitution of India. There could not have been any curtailment of the right to obtain anticipatory bail under 3 section   438   Cr.PC.   Prior   scrutiny   and   proper   investigation   are necessary. Most of the safeguards have been provided under the Act of 1989 to prevent undue harassment. This Court has struck down the provision of section 66A of the Information Technology Act on the ground of violation of fundamental rights; on the same  anvil, the provisions of section 18A of the Act of 1989 deserve to be struck down.

With regard to provisions of SC- ST Act the Court stated that the section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra), which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made   in   section   18A   are   rendered   of   academic   use   as   they   were enacted to take care of mandate issued in  Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail. However, the   court   can,   in   exceptional   cases,   exercise   power   under section 482   Cr.PC   for   quashing   the  cases   to   prevent   misuse   of provisions on settled parameters, as already observed while deciding the review petitions.

Hon’ble Justice Ravindra Bhat, supplemented the judgment in his opinion as;

As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.  I would only add a caveat with the observation and emphasize that while considering any 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 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. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.

Therefore the Hon’ble Court uphold the constitutionality of Section 18A of the SC-ST Act, inserted vide an amendment in 2018.

– Srutha R Elayidom



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