No Anticipatory Bail, Preliminary Inquiry: Parliament Passes Schedule Caste & The Schedule Tribes (Prevention of Atrocities) Amendment Bill, 2018

Today the Rajya Sabha passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill 2018, which was cleared by the Lok Sabha on Monday.

The Amendment Bill seeks to dilute the controversial verdict of the Supreme Court in Dr. Subhash Kashinath Mahajan .

By way of the Amendment, a new section 18A has been inserted in the Act of 1989, which does away with the court-imposed requirements of undertaking preliminary inquiry and of procuring approval prior to making an arrest. It also restores the unconditional ban on the grant of anticipatory bail in the event of arrest for an offence under the Act.

What is more is that the Amendment expressly overrides any “judgment or order or direction of any court” in as much as it contains a non-obstante clause to that effect.

In stark contrast to the directions issued by Supreme Court, the Amendment Bill asserts that in cases under the Atrocities Act, no procedure other than that specified under the Act and the Cr. P. C. shall apply.

The Statement of Objects and Reasons of the Bill avers that the procedural formalities of preliminary enquiry and approval would only delay the filing of a charge sheet.

It reads that The principles of criminal jurisprudence and section 41 of the Cr. P. C., “as interpreted in several judgments”, imply that once the investigating officer has reasons to suspect the commission of an offence, he can arrest the accused and that “This decision to arrest or not to arrest cannot be taken away from the investigating officer”.

In the impugned judgment dated March 20, a bench of Justices Adarsh Kumar Goel and U. U. Lalit had considerably diluted the provisions of the Act of 1989, directing-

(i) that There shall be no absolute bar against the grant of anticipatory bail in case of an offence under the Atrocities Act, where no prima facie case is made out or if the complaint is found to be malafide;

It may be noted that section 18 of the Atrocities Act restricts the application of section 438 of the Cr. P. C. in case of an offence committed under the Act of 1989.

(ii) that a public servant may only be arrested with the approval of the appointing authority, and a non-public servant, with that of the S.S.P.;

(iii) That a preliminary enquiry may be conducted by the DSP before lodging the FIR to confirm that the allegations are not frivolous or motivated.

Further, Any violation of these directions was made actionable by way of disciplinary action as well as contempt.

What had followed was massive unrest across the country, with the Union of India and several states moving the apex court in review. However, the bench had refused to relent.