SC/ST Act | Pre-Arrest Bail Can't Be Rejected Solely On Ground That Plea Is Not Maintainable, Special Court Must Adjudicate On Merits: P&H High Court

The Punjab & Haryana High Court has said that an anticipatory bail plea under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989] (SC/ST Act) cannot be rejected solely on the ground that such a plea is not being in terms of statutory provisions contained in Section 18/18(A) of the Act.

While allowing a pre-arrest bail plea in the FIR lodged under the SC/ST Act based on a money dispute, Justice Sumeet Goel, "A Special Court [a Sessions Court which has been duly notified as per Section 14(1) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989]/ an exclusive Special Court [duly established as per Section 14 the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989] is competent to adjudicate upon a plea for grant of anticipatory bail filed under Section 438 of Cr.P.C, 1973 in respect of offence(s) committed under the SC/ST Act, 1989. Such Special Court/exclusive Special Court ought not to decline such a plea solely on the ground of such a plea not being maintainable in terms of statutory provisions contained in Section 18/18(A) of the Act and is rather required to delve into the merits thereof in accordance with law."

The Court also summarised the following principles:

(I) A plea for grant of anticipatory bail/pre-arrest bail filed under Section 438 of Cr.P.C., 1973 is maintainable in respect of offence(s) alleged to have been committed under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(II) Such a plea can be granted only when judicial scrutiny of the factual matrix of such case reflects that; insofar as allegations pertaining to offence(s) under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 are concerned; “No prima facie case is made out”or “the case is prima facie false” or “the case is motivated”or “the case is malafide ”or where “non-granting of such plea would cause miscarriage of justice or abuse of process of law”. It is neither fathomable nor pragmatic to lay down any exhaustive/conclusive parameters as to what would be the touch-stone to determine these aspects in a given case as every case has its own peculiar factual matrix.

The Court added that while exercising its discretion in granting the pre-arrest bail, a Special Court ought to consider the parameters enumerated herein above with respect to the accusations pertaining to the 1989 Act.

These observations were made while hearing the two appeals under Section 14-A of the SC/ST Act, against an order wherein the pre-arrest bail of one Arvind and Kala were rejected.

The accused were booked under Sections 148, 149, 323, 325, 354-B, 506 of IPC and Section 3(1)(s)/3(2)VA of the SC/ST Act, for allegedly passing casteist remarks, abusing, misbehaving and injuring a lady of SC/ST community.

The counsel for the appellants argued that they have been falsely roped in on account of a money dispute between the parties and the allegations relating to the SC/ST Act have been made malafidely so as to give a more serious colour to the dispute between the parties.

On the other hand, counsel for the complainant opposed the plea by arguing that the SC/ST Act postulates that Section 438 of Cr.P.C. does not apply to any case involving the arrest of any person on an accusation of having committed an offence under the SC/ST Act Act & hence the plea made by the appellants, accused for grant of anticipatory bail is not maintainable.

After hearing the submissions, the Court considered the question whether a plea for the pre-arrest bail is maintainable in respect of offences alleged to have been committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 given Section 18 and 18A of the Act.

Reliance was placed upon Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and Anr., (2018) wherein the Apex Court held:

"There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide."

It was noted that according to this judgment passed by the Supreme Court, the legislature inserted Section 18-A of the 1989 Act w.e.f 20.08.2018 which provided that the provisions of Section 438 of Cr.P.C., 1973 shall not apply to a case under the 1989 Act notwithstanding any judgment, order or directions of any Court.

"The vires of this provisions i.e. Section 18-A of 1989 Act came up for adjudication before Hon'ble Supreme Court in the case of Prathavi Raj Chauhan case wherein it was held; insofar as the issue of maintainability of a plea for anticipatory bail in respect of offence(s) under 1989 Act is concerned; that such a plea would be maintainable provided such applicant is able to show that no prima facie case under the Act is made out or where non-granting of such plea would result in miscarriage of justice or abuse of process of law," said Court.

It further opined that the issue of granting anticipatory bail in respect of offences under SC/ST Act, was no more a conundrum.

It held that a plea for anticipatory bail in respect of offence(s) under the 1989 Act was maintainable and can be granted provided such an applicant can show that no prima facie case is made out regarding the offences under the 1989 Act, where the case of the complainant is prima facie false, motivated or malafide or in a situation where non-granting of such anticipatory bail would amount to miscarriage of justice or abuse of process of law.

In the present case, the Court noted that the genesis of the dispute between the parties appeared to be a monetary one.

"Indubitably, there are allegations of uttering caste related words against the appellants but there is a background of money dispute between the parties. At this stage, it cannot be altogether ruled out that the allegations pertaining to the 1989 Act are not motivated or malafide. Further the incident is alleged to have taken place on September 9, 2023 whereas the FIR in question was registered on September 12, 2023," it said.

Justice Goel noted that no material had been brought forward to indicate that the appellants were, in some way or the other, aware of the caste of the complainant.

On allegations of injuries suffered by the complainant, the Court said that the injuries attributed to the appellants had been described to attract Section 325 of IPC, which was bailable in nature.

Further, it was stated that the question of mens-rea vis-à- vis the offence of Section 354-B of IPC in an altercationt of the nature alleged in the FIR would be a matter of investigation and trial.

In light of the above, the Court allowed the plea and made the interim anticipatory bail absolute.

Keshav Partap Singh, Advocate for appellants

Priyanka Sadar, AAG Haryana.

Rajesh Goyal, Advocate for respondent No.2-complainant.

Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 100