SC/ST Act | No Bar On Anticipatory Bail Unless Prima Facie Offence Is Made Out: Supreme Court

“If on a prima facie reading of the materials referred to in the complaint and the complaint itself, the ingredients necessary for constituting the offence are not made out, then the bar of Section 18 would not be applicable and it would be open to the courts to consider the plea for the grant pre-arrest bail on its own merits”, the Court held.

In such cases, the courts would not be absolutely precluded from granting pre-arrest bail to the accused, the Court highlighted.

A bench of Justice JB Pardiwala and Justice Manoj Misra said this while granting anticipatory bail to the editor of the Malayalam YouTube News Channel 'Marunadan Malayalee' Shajan Skaria in a criminal case for making alleged derogatory remarks against MLA PV Sreenijin.

Skaria had telecast a news item regarding the alleged maladministration of the Sports Hostel by Sreenijin in his capacity as the Chairman, District Sports Council. The Court today set aside the Kerala High Court's judgment delivered in June 2023 refusing him anticipatory bail.

The Court opined that in such cases where the alleged incriminating material is available in the public domain due to being uploaded on social media, courts should have the discretion to examine the materials upon which the complaint is registered.

“We may only say that in cases like the one in hand, the courts should have the discretion to look into the materials based upon which the complaint has been registered, in addition to verifying the averments made in the complaint”, the Court observed.

Section 18 of the Act states that Section 438 of the CrPC, which provides for anticipatory bail, shall not apply in relation to any case involving the arrest of a person accused of committing an offence under the Act.

Section 18-A provides that no preliminary inquiry is required before the registration of an FIR against any person under the Act, nor is approval needed for the arrest of an accused. Additionally, the amendment reasserts the inapplicability of Section 438 of the CrPC to cases under the Act, irrespective of any court judgment or direction.

The Court cited its judgment in the case of Prathvi Raj Chauhan v. Union of India holding that if a complaint does not establish a prima facie case under the Act, the bar created by Sections 18 and 18-A(i) would not apply, allowing courts to grant pre-arrest bail to the accused.

The Supreme Court in Vilas Pandurang Pawar v. State of Maharashtra observed that while Section 18 of the Act, 1989 creates a bar on invoking Section 438 of the CrPC, courts must verify if a prima facie case under the Act is made out.

The Court noted that the expression "arrest of any person" under Section 18 of the Act bars anticipatory bail only in cases where a valid arrest can be made under Section 41 read with Section 60A of the CrPC.

“it can be said that the bar under Section 18 of the Act, 1989 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the Act, 1989. We say so because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied”, the Court observed.

When the essential ingredients to constitute an offence under the Act are not evident upon reading the complaint or FIR, no prima facie case can be said to exist, the Court said.

The Court noted that if the necessary ingredients to constitute an offence under the Act are not disclosed on a prima facie reading of the allegations in the complaint or FIR, the bar under Section 18 of the Act would not apply.

The Court emphasized that this is the only test that should be applied when an accused seeks anticipatory bail under the Act.

The Court noted that an accused may argue that the plea for anticipatory bail should be considered even though allegations do disclose the commission of an offence under the Act, on the ground that the FIR or complaint is patently false due to political or private vendetta. However, such claims can only be addressed by the High Court under its inherent powers under Section 482 of the CrPC or its extraordinary jurisdiction under Article 226 of the Constitution, the Court held. If all the ingredients necessary for constituting the offence are present in the complaint, the remedy of anticipatory bail becomes unavailable to the accused, the Court emphasised.

The Court further observed that it is the duty of the courts to determine the prima facie existence of a case.

“The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989”, the Court observed.

This role of the courts assumes even greater importance when a prima facie finding precludes the accused from seeking anticipatory bail, which is an important aspect of personal liberty, the Court highlighted.

The Court also noted that with the advent of the internet and social media, similar cases are likely to arise more frequently. The Court noted that it was not the case that the appellant insulted or humiliated the complainant in a public gathering, which would require witness statements to establish. The incriminating material on which the complaint was based was already available in the public domain due to its upload on social media platforms.

Also from the judgment - Mere Insult To SC/ST Member Not Offence Under SC/ST Act Unless Intent Was To Humiliate Based On Caste Identity : Supreme Court

Case no. – Crl.A. No. 002622/2024

Case Title: Shajan Skaria v. State of Kerala

Citation: 2024 LiveLaw (SC) 601

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