SC/ST Act - Anticipatory Bail Application Can Only Be Filed Before The Special Court, Not High Court: Kerala HC

The Kerala High Court on Friday held that in cases of alleged offences under the SC/ST Act, an application for anticipatory bail can be filed only before the Special Court or the Exclusive Special Court constituted under the Act and not before the High Court.

Justice Bechu Kurian Thomas further clarified that High Court has neither concurrent jurisdiction under section 438 CrPC nor original jurisdiction under section 482 Cr.P.C. for grating bail for offences under SC/ST Act and can only exercise appellate jurisdiction under Section 14A.

Thus, once the original jurisdiction of the High Court for grant of bail is excluded, an application for anticipatory bail invoking the concurrent jurisdiction under section 438 Cr.P.C, which is also original in its nature and scope stands excluded. Consequently, the appellate jurisdiction alone can be exercised by the High Court, under section 14A.

The matter came before the Court in four bail applications in which the petitioners are alleged to have committed offences punishable under the SC/ST Act, calling upon the Court to look into the incongruity regarding the law governing the matter of granting of anticipatory bail to those alleged to have committed offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 

Section 18 of the SC/ST Act creates a bar for entertaining applications for anticipatory bail. However, the Apex Court in Prathvi Raj Chauhan v. Union of India & Ors had held that if the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created by section 18 and section 18A(1), shall not apply. 

The provisions of the SC/ST Act provide an absolute prohibition on the applicability of the provisions of section 438 of Cr.P.C.However, difficulty arises in cases where there is a lack of prima facie cases. When the Apex Court's observed in the Prathvi Raj Chauhan case is coupled up with the Creation of Special Courts and the conferment of appellant jurisdiction on the High Court under the provisions of the Act, there is a lack of clarity. 

Advocates P.P Jacob, Mariyan Jacob, Mariya Titty, V. M. Krishnakumar, R.T. Pradeep, Bindudas M, K Dhruv Kumar, Shakthi Prakash and Harikrishnan M S appeared for the petitioner, and Public Prosecutor Advocate K.A Noushad, Advocates S. Manilal and K.R. Vinod appeared for the State and other respondents.  Advocate K.K. Dheerendra Krishnan was appointed as Amicus Curiae by the Court.

The Counsel appearing for the petitioners relied on the observations made by the Apex Court in Prthavi Raj Chauhan's case and contended that the petitioner's claim for anticipatory bail is maintainable before the Court either under Section 438 or Section 482 CrPC.

Main Contentions raised by the Counsels:

• The observations in Prathvi Raj Chauhan's case indicate that notwithstanding the bar under sections 18 and 18A of the Act, an application for anticipatory bail is maintainable concurrently in the Sessions Court as well as in the High Court.
• The application for anticipatory bail can be filed only before the Special Court or Exclusive Special Court, and if rejected, an appeal alone will lie to the High Court.
• The application for anticipatory bail can be considered only in the exercise of the inherent power under section 482 of Cr.P.C, and therefore, it is maintainable only before the High Court.

The Court observed that subsequent to the Apex Court decision in Dr Subhash Kashinath Mahajan and Prathvi Raj Chauhan, the legal position is that anticipatory bail, in a crime where an offence under the SC/ST Act is alleged, can be granted only if the court is satisfied that the allegations levelled do not prima facie make out a case under the SC/ST Act.

The power to grant anticipatory bail is statutory in nature and can be traced to section 438 CrPC, which is concurrent in nature, being vested with both the Sessions Court and High Court. However, the Court observed that since the SC/ST Act has a special procedure and Special Courts for dealing with offences committed against people belonging to the SC/ST Community, that indicates exclusivity of Special Courts.

On a consideration of the entire scheme of the Act, including the powers of the Special Courts, it can be concluded that the Act has given primacy and exclusivity to the Special Courts, to the expulsion of the normal Courts. The above-noted intention of the Parliament cannot be ignored while considering the questions raised.

 Section 14A(1) & (2) of the SC/ST Act provides for an appeal to the High Court against any order other than an interlocutory order and also against an order granting or refusing bail, and to avoid confusion, the Court observed that the word bail in section 14A(2) also includes anticipatory bail.

Section 14A has conferred only an appellate jurisdiction on the High Court in contradistinction to original jurisdiction for the grant of bail. The use of the non-obstante clause in the provision indicates the intention of the legislature to exclude a dichotomy of jurisdiction upon the High Court to handle bail applications in its original and appellate jurisdiction. This is the inevitable conclusion that can follow from the words used in section 14A and the scheme of the SC/ST Act.

Further, relying on various Apex Court decisions on a similar matter, the Court observed that the statute in its express stipulation clearly indicates that a bail application can be filed under SC/ST Act only before the Special Court or the Exclusive Court. 

While observing that Special Court alone have jurisdiction to consider the bail application and not the sessions Court, the Court clarified that notifying the Sessions Courts as Special Courts cannot derogate from the requirement of the statute, that only the Special Court can consider the matters including applications for bail arising under the SC/ST Act as Sessions Courts in Kerala are notified as Special Courts. 

Conclusions drawn by the Court:

• In cases of alleged offences under the SC/ST Act, an application for anticipatory bail can be filed only before the Special Court or the Exclusive Special Court and not before the High Court.
• The High Court has neither concurrent jurisdiction under section 438 CrPC nor original jurisdiction under section 482 Cr.P.C. Similarly, Sessions Courts also do not have jurisdiction to grant anticipatory bail.
• The Special Court, while dealing with anticipatory bail applications, must ascertain whether a prima facie case of an offence punishable under the SC/ST Act is made out. If the answer is affirmative, the bar under sections 18 and 18A of the SC/ST Act will come into play, and there cannot be any further consideration on the entitlement of anticipatory bail. if no prima facie case can be found against the accused, then the Special Court is entitled to consider the anticipatory bail application on merits. 
• However, the order granting or rejecting the anticipatory bail will be subject to the appellate jurisdiction of the High Court under section 14A of the Act.

On facts, all the bail applications were dismissed, with the applicants at liberty to approach the Special Court and Appellant Court. 

Case Title: K. M Basheer v. Rajani K.T & Ors and Connected cases

Citation: 2022 LiveLaw(Ker) 472

Click Here To Read/Download The Order