Shajan Skaria: A Judicial Excursion In Granting Anticipatory Bail Under Prevention Of Atrocities Act

Interpretation of Section 18 vis-à-vis other provisions of the CrPC

Section 18 of the Act bars the applicability of Section 438 of the CrPC in a case concerning the trial of an accused charged with offences under the PoA Act. The legislative intent behind refusing the benefit of anticipatory bail to persons accused of offences under the PoA Act was rightly noted by the Court as:

“…having regard to the prevailing social conditions which give rise to such offences and the apprehension that the perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of such offences, if they are allowed to avail the benefit of anticipatory bail.”

To brush aside this clear legislative mandate, the Court has relied on its scepticism of fake complaints being launched under the PoA Act out of 'personal and political vendetta'. In doing so, the Court carved out an exception such that, in the absence of a 'prima facie' case, the bar under Section 18 would not get attracted, and anticipatory bail could be granted. It heavily relied on the case of PrathviRaj Chauhan v. Union of India, which discussed the inherent power to direct a pre-arrest bail. In that decision, the Court had opined that an accused under the PoA Act always has the option of approaching the Courts under Section 482 of the CrPC to quash the case when no 'prima facie' case exists. Justice Bhat had warned against the use of Section 438 in granting pre-arrest bail for offences under the PoA Act in the following terms:

“…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.”

While interpreting the words “arrest of any person” in Section 18, the Court held that the bar against anticipatory bail would only apply where a valid arrest can be made as per Section 41 read with Section 60A of the CrPC. Section 41 provides that an arrest can be made on the basis of a reasonable complaint, credible information, or a reasonable suspicion. The Court read these requirements for a valid arrest as akin to the existence of a 'prima facie' case. Accordingly, if there is no prima facie case, no valid arrest can be made, and hence, anticipatory bail can be granted as Section 18 bar would not apply. This circular reasoning by the Court was unwarranted as it is not quite clear how the validity of an 'arrest', which has not yet been made, can be determined at a stage when the Court is deciding an application for anticipatory bail under Section 438 of the CrPC. It is also not clear how a future hypothetical 'invalid' arrest can be a ground for the grant of anticipatory bail under the general Section 438 jurisprudence. The Court has already presumed that any arrest, if made, would be illegal.

While applying the rule of plain meaning to interpret Section 18 of the PoA Act, the court emphasized the phrase “having committed an offence under this Act” to hold that the bar under Section 18 would only apply in cases where the complaint 'clearly points towards the commission of an offence' under the PoA Act. The court has ignored the preceding words “on an accusation of” appearing before the phrase “having committed an offence under this Act”. The threshold for the applicability of the bar under Section 18 is merely an 'accusation' and not proof of the 'commission' of the offence. This disjunctive reading of Section 18 is inconsistent with the plain meaning rule of statutory interpretation and defeats the legislative intent behind the PoA Act. Further, such a reading renders Section 18 nugatory, as it completely brushes aside the embargo by introducing a new exception of 'prima facie' analysis without differentiating between the powers under Section 438 and the exceptional powers outlined in Prathvi Raj Chouhan. In my view, the exception to grant pre-arrest bail was to be applied when there is a clear-cut case of non-applicability of the PoA Act upon a prima facie reading of the complaint and/or the FIR. In contrast, even if it is assumed that the present Court has rightly invoked the exception, it has clearly gone beyond its scope in assessing the existence of a prima facie case. It is also debatable whether such an exception should exist in the first place in the face of the clear embargo enacted by the legislature.

Distorted Understanding of 'Prima Facie'

It is settled law that when conducting a prima facie analysis, a Court shall not go into the veracity of the evidentiary materials and must restrict its analysis to the averments made in the complaint and/or the FIR. In doing so, the Court shall presume that all these averments are true and then proceed to check whether the ingredients of the offence alleged have been made out. It is also trite law that the complaint must be seen as a whole and not dissected in parts. Contrary to these settled principles, the Court has exceeded its powers in conducting a prima facie analysis of the ingredients of the offence. Although the Complaint, when read as a whole, clearly alleges that the accused, not being a member of a Scheduled Caste or Scheduled Tribe, had intentionally humiliated the Complainant, a member of a Scheduled Caste, which was broadcasted to the public. Intelligibly, all the ingredients under Section 2(1)(r) have been made out in the Complaint. Had the Court presumed the allegations in the Complaint to be true, as it should have, it could not have concluded otherwise. Interestingly, the basis for its finding that no 'prima facie' case exists was the appreciation of evidence in detail and “verifying the averments made in the complaint”.

The Court has conducted a mini-trial at the stage of deciding an application for anticipatory bail and arrived at findings which effectively prejudge the merits of the case. It is evident that any trial now would only end in an acquittal. Such an approach was also warned against in Vilas Pandurang Pawar and Another v.State of Maharashtra and Others:

“When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.”

Incremental step in Diluting the Rigours of the PoA Act.

From the introduction of additional requirements such as caste-specific mens rea in Dashrath Sahu v. State ofMaharashtra and BhawanaGupta v. State of Punjab, to the insufficient understanding of “public view” in AshutoshTiwari v. Kamlesh Shukla and Hitesh Verma v. State ofUttarakhand, there has been and an incremental judicial manoeuvre to dilute the rigours of the PoA Act. The fear of “misuse” of legislation is one of the guiding factors, propelled by an approach of scepticism, distrust, and enthusiasm to protect the accused from 'unnecessary humiliation'. Such precedents only nullify the legislative efforts to prevent and protect against caste-based atrocities, a constitutional guarantee which has been long overdue.

Views are personal.