The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the “SC & ST Act” or the “Act”) is a protective legislation enacted to achieve the constitutional objective enshrined under Article 17 of the Constitution. The very purpose of the Act is to provide protection and equality to the people belonging to these marginalized caste and tribes.
Section 3 of the Act lays down a list of acts that constitute an offence against any member belonging to the scheduled caste or scheduled tribe. Once an FIR is lodged regarding the commission of an offence under Section 3, the police investigate into the matter against the persons so named in the FIR. As a general principle of the Criminal law, we have studied the concept of Anticipatory bail, also known as, the Pre-arrest bail. As the etymological meaning of the name suggest, the purpose of this kind of bail is to prevent oneself from getting arrested. However, the SC & ST Act, under Section 18 states that the concept of anticipatory bail shall not be applicable in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act.
The concept of anticipatory bail was introduced under the Code of Criminal Procedure in view of the recommendations of the Law Commission to prevent innocent persons being implicated in false cases for personal vendettas and thereby languishing in jail after being arrested. Thus, the concept of Pre-arrest bail was introduced to prevent such wrongful arrests.
The SC & ST Act under Section 18 straight-away takes away an important concept of liberty of the accused. The provision creates a bar by discarding the concept of anticipatory bail. Thus, if ‘A’ who is a member of the Scheduled caste, in lieu of a personal vendetta, by creating false evidence, files an FIR against ‘B’ who is not a member of the Scheduled caste or Scheduled tribe, and who is prohibited from filing an application for anticipatory bail, will he be outrightly arrested by the Police for something he has not done?
Thus, keeping in view the said thought, Section 18 of the SC & ST Act was challenged in State of Madhya Pradesh v. Ram Kishna Balothia [(1995) 3 SCC 221] for being violative of Article 14 of the Constitution. However, the Full bench held that the provision was not violative of Article 14 as the following Act is a special legislation creating a separate class distinct from other and denying the remedy of anticipatory bail had been there considering the statement of reasons and objectives of the Act.
Thus, the constitutional validity of the said provision cannot be questioned. However, is outrightly denying anticipatory bail justified?
In this regard, an appeal had been preferred before the hon’ble Supreme Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra [(2018) 6 SCC 454] against the Order of the High Court of Judicature at Bombay whereby the High Court had sought the guidance of the hon’ble Supreme Court pertaining to the interpretation of Section 18 as to what should be the procedure to deal with false complaints under the Act.
The hon’ble Supreme Court after scrutinizing the said provision held that to prevent the misuse of the said Act and to prevent innocent persons getting arrested,
“…if prima facie case has not been made out attracting the provisions of the SC/ST 1989 Act, in that case, the bar created under Section 18 on the grant of anticipatory bail is not attracted.”
Thereafter, a three-judge bench of the hon’ble apex Court in Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727] referring to the judgment in Subhash Kashinath Mahajan case held that:
“…if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A (i) shall not apply.”
Thus, in conclusion, the bar created under Section 18 of the SC & ST Act is not absolute. If on perusal of the FIR or the Complaint, a prima facie case is not made out or the allegations so levelled against the person do not per se constitute the commission of an offence under Section 3 of the Act, an application for grant of anticipatory bail is wholly maintainable.
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