No Bar In Considering Anticipatory Bail Pleas Even After 2018 SC-ST Act Amendment: Bombay HC [Read Judgment]

The bench comprising Justice TV Nalawade and Justice Mangesh S. Patil also observed that even the police officer is expected to give thought at the time of registration of the crime under section 154 of Cr.P.C. that whether the allegations constitute the offence under the Act. Only because the first informant belongs to scheduled tribe or scheduled caste, the crime cannot be registered for offence punishable under the Act and offence can be registered under the Act only if there are ingredients of the offences punishable under the Act in the accusation, it said.

The court was considering an appeal filed by a man charged under the SC-ST Act whose anticipatory bail petition was rejected by the Sessions' court holding that there is bar of provision of section 18-A(2) of the Act. Before the High court also, the prosecution contended that in view of the aforesaid provision, the decisions, if any, given in the past to hold that the application under section 438 of Cr.P.C. is tenable, cannot be used after 20.8.2018.

Referring to the Amendment Act, the bench noted that the provision of section 18 which is not much different from the provision of section 18-A (2) of the Act. The bench further observed that the higher judiciary has the power to interpret the new provisions also to ascertain the object behind the new provision in addition to the power to ascertain the Constitutional validity of such newly added provision. It said:

"It needs to be kept in mind that the provision of section 18 of the Act was kept intact and provision of section 18-A(2) was added which can be said as supplementary provision to main section 18. In view of the situation created by the case of Dr. Subhash cited supra, the entire provision of section 18-A was inserted by legislature and so, it can be said that the main purpose of the legislature was to say that there was no necessity of any enquiry before registration of the crime and there was no necessity of taking approval before making arrest of the offender if the offence is committed under the Act. Apparently, there was no other reason for the amendment of the year 2018. That is the only interpretation which is possible in respect of non-obstante clause added in section 18-A(2) "Notwithstanding any judgment and order or direction of any Court bar, shall apply"."

In this case, the FIR was initially registered under sections 307, 341, 504 and 506 of I.P.C. Later the complainant gave supplementary statement alleging that the incidents took place due to hate of accused towards him as he belongs to scheduled tribe. Examining the FIR contents, the court observed:

"The allegations made by the first informant in respect of both the incidents even in supplementary statement do not show that there was apparently intentional insult or intimidation with intent to humiliate. It is not the allegation of the first informant that abuses were given to him by taking the name of his caste by the appellant as provided in section 3 (1)(s) of the Act"

The court then allowed the anticipatory bail.

The Judgment and The Amendment

In Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, the Apex Court had issued directions to see that some preliminary enquiry is made prior to registration of the crime and the period for the same was fixed, It was also directed that, if the offender was not public servant, permission has to be obtained from Senior Superintendent of Police of District and the permission is obtained from appointing authority when the offender involved is a public servant before the arrest. The Apex Court had also observed that there is no absolute bar in respect of the applications of anticipatory bail filed under the Atrocity Act if prima facie case is made out or where on judicial scrutiny, the complaint is found to be prima facie malafide.

The decision in Subhash Kashinath Mahajan had caused massive uproar which made the Union of India and several state governments to seek a review of the same. However, the bench of Justices Adarsh Kumar Goel and U. U. Lalit refused any relief.

It was thereafter, the Parliament passed an amendment to the Act inserting Section 18A. It virtually nullifies the court-imposed requirements of undertaking a preliminary inquiry and of procuring approval prior to making an arrest. It also reiterates in Section 18A(2) that provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or direction of any Court.

A PIL praying that the 2018 Amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 be struck down as being in the teeth of Articles 14, 19 and 21 and violative of the basic structure of the Constitution, is pending consideration before the Apex Court.

The Calcutta High Court had recently made a similar observation holding that, notwithstanding incorporation of section 18A into the Act, limited jurisdiction of the Court to examine the uncontroverted allegations in the FIR to see whether such allegations when taken at their face value disclose ingredients of such offence is not taken away.

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