S.18 of SC/ST Act-Unless The 'Offender's Action Is Impelled By The Consideration That The Victim Is A Member Of 'SC or ST', Bar For Anticipatory Bail Won't Apply

BACKGROUND OF THE CASE

An FIR was registered against the accused under Sec. 354D, 376 and 506 of IPC along with Sec. 3(2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 based on the statements recorded under Sec. 164 of CrPC. The primary allegation against the accused was that he had committed rape on the prosecutrix on a false pretext of marriage also accusing him of committing the offences of stalking and criminal intimidation.

Sec. 3(2)(v) of the SC ST Act provides for the cases where any offence is committed under IPC punishable with imprisonment for a term of 10 years or more against any person who is the member of SC or ST community. It also provides that in such cases, the punishment will be enhanced to life imprisonment with fine.

An anticipatory bail was then filed by the accused, applicant in the case, under Sec. 438 of CrPC.

POINTS OF CONSIDERATION BEFORE THE BENCH

The High Court while dealing with the grant of anticipatory bail examined the following aspects in the matter:

• Maintainability of anticipatory bail application under Sec. 438 CrPC vis-à-vis Sec. 18 of the SC ST Act, 1989.
• Individual merits of the bail plea under Sec. 438 CrPC in the matter.
• Whether anticipatory bail can be granted after non bailable warrants are issued against an accused person?
• Relevance of the judgment PV Narasimha Rao v. State (CBI) 1996 (Delhi HC) in cases where bailable or non bailable warrants are issued against accused and whether or not such condition will restrict the court in granting anticipatory bail to the accused person.

ON MAINTAINIBILITY OF SEC. 438 CRPC VIS-À-VIS SEC. 18 OF SC ST ACT, 1989

Arguments of the State

Mr. Tarang Srivastava, Asst. Public Prosecutor (APP) representing the State objected to the maintainability of the application by relying on Sec. 18 of the SC ST Act. According to the said provision, any person committing an offence under the Act shall not be allowed to apply for anticipatory bail application under Sec. 438 CrPC. He submitted that as the accused has also been charged with Sec. 3(2)(v) of the Act, the application of the accused is bar by Sec. 18 and thus, is not maintainable in the court of law.

In doing so, the APP relied on the judgment of Prathvi Raj Chauhan v. Union of India & Ors. (2020) 4 SCC 727 wherein the apex court held that the bar of applicability of Sec. 438 CrPC shall not apply to cases under SC ST Act only if it is proved that a prima facie case for the applicability of provisions of the Act is not made out in the complaint.

According to the State, the statements of the victim under sec. 164 CrPC reveals and makes a prima facie case against the accused under sec. 3(2)(v) of the Act has been committed. He further submitted that the in the Prathvi Raj judgment the Supreme Court also observed that the jurisdiction under Sec. 438 in cases of SC ST Act must be used only in exceptional cases where no prima facie case under the Act is made out. "A liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament." The Supreme Court observed in the judgment.

The State further relied on another judgment of the Supreme Court in Manju Devi vs. Onkarjit Singh Ahluwalia & Ors. (2017) wherein it was held that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process and can only be taken into consideration at the time of trial. Therefore, it was argued by the APP that the observation applies equally at the stage where the court is considering the plea of anticipatory bail and that the court cannot look into the merits of the allegations being false at the time of considering the present bail application.

Arguments of the Applicant

Adv. Pradeep Teotia appearing for the applicant heavily relied on Prathvi Raj Chauhan judgment and argued that in the present case, the complaint does not reveal any prima facie case under the SC ST Act due to which the bar under Sec. 18 of the Act does not arise.

It was further argued that sec. 3(2)(v) of the Act only applies in cases where it is proved that the person has committed an offence against a person 'only for the reason' belonging to the SC or ST community as held by the supreme court in the cases of Dinesh v. State of Rajasthan and Khuman Singh v. State of MP.

In view of the said judgments, it was argued by the applicant that there is no allegation against the accused that he committed sexual assault on the prosecutrix only for the reason that she belongs to the SC or ST community. Furthermore, it was argued that the provisions of section 3(2)(v) of the SCST Act have been mechanically and arbitrarily invoked and must not stand in the way of the present anticipatory bail plea.

OBSERVATION OF THE COURT

On the conflict of applicability of provisions of SC ST Act

The Court analyzed the provisions of the SC ST Act including Sec. 3 (punishments for offences under the Act), Sec. 18 (bar on Sec. 438 CrPC) and Sec.18A (no requirement of a preliminary enquiry for registration of FIR or approval for arrest). The bench also considered the observations made in the cases cited by both the sides in the matter.

The bench observed therein that for the applicability of Sec. 3(2)(v) of the SC ST Act, it is necessary for an offences under IPC punishable with a sentence of 10 years or more to be committed on a person belonging to SC or ST community only for the reason that such person belongs to such category.

"It is not the purport or meaning of section 3(2)(v) that every offence under the IPC attracting imprisonment of 10 years or more would come within the meaning of that provision merely because it is committed against a person who happens to be a member of a Scheduled Caste or a Scheduled Tribe." The court held.

The bench also clarified that the in such cases, the enhance punishment can only be attracted where "offender's action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe."

As far as the facts of the case is concerned, the Court held that neither in the FIR nor in the statement given by the accused under Sec. 164 CrPC has the victim alleged that she has been sexually assaulted by the reason of her caste and she makes the allegations only after an episode arose in 2019 wherein the accused had refused to marry her. Therefore, it did not prima facie appear to the Court that any offence under the Act is committed by the accused.

On the merits of anticipatory bail application

The following arguments were made by the applicant on individual merits of the case and grant of anticipatory bail application:

• That the bare reading of the FIR and statement of the prosecutrix disclose that she and the accused were friends since 2013 and that it was a seven year long consensual relationship.
• That it was only after 2019 that an FIR was lodged in 2020 which shows the mala fide intention.
• That because it was a seven year long consensual relationships, ingredients of sec. 354D, 376 and 506 IPC cannot be made out.

On the issuance of Non bailable warrants against the accused and plea of anticipatory bail

The Court took notice of the fact that although the issuance of non bailable warrants have not been challenged in the prayer, it is important for the Court to address the issue whether anticipatory bail can be granted if non bailable warrants have been issued against a person. In doing so, the Court heavily relied on the judgment of the division bench of Delhi High Court in PV Narsimha Rao v. State (CBI) 1996 wherein the court held that "The filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not put an end to the power to grant bail under S.438(1) Cr.P.C. and on the other hand the High Court or the Court of Session has power to grant anticipatory bail under S. 438(1) to a person after the criminal Court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person."

Therefore, in view of the aforesaid judgment the Court while allowing the anticipatory bail to the accused held that "Accordingly, the fact that NBWs have already been obtained against the applicant would not divest this court of the power under section 438 Cr.P.C. to grant anticipatory bail to the applicant."

The bench also held that in the case of grant of anticipatory bail, there cannot be any distinction whether a person apprehends arrest at the hands of the police or issuance of warrants against him. "The directions issued above shall apply even if the applicant is arrested against the NBWs issued by the learned Sessions Court." The judgment said.

The Court directed the applicant to be granted bail by the Investigating Officer on furnishing of a personal bond of Rs. 50,000 and one surety of the same amount.

Case Name: Danish Khan v. State (GNCTD)

Judgment dated: 05.01.2021