Anticipatory Bail and Section 18 SC & ST (Prevention of Atrocities ) Act

As a lawyer, it is also my duty towards society at large to spread awareness in society in respect of anticipatory Bail against the filing of false criminal complaints under section 3 of the SC & ST (Prevention of Atrocities) Act 1989. Herein after referred as Act.

By way of writing this blog, I am trying my best to inform that anticipatory bail under Section 438 of code of criminal procedure (cr.p.c) and the provision of Section 18 of the Act are in conflict with each other as the scope of  S.18 of the Act read with section 438 of Cr.p.c is such that S.18 creates specific bar for anticipatory bail to be granted when an offence punishable S. 3 is made out. No court shall entertain an application for anticipatory bail unless it prima facie finds such an offence is not made out.

The scope of anticipatory bail is related to the right to personal liability as mentioned under Article 21 of Constitution of India while section 18 says that section 438 of Cr.p.c does not apply to persons committing an offence under the Act. In that case, how to justify S.18 of the Act and S.438 of Cr.p.c is a question where there is an accusation of having committed an offence under the Act.

Let me discuss this point in detail with the help of relevant case laws.

In a case of Pankaj D. Suthar vs. State of Gujarat reported in (1992) 1 GLR 405, the question was arisen "whether in cases wherein the accusation in the complaint levelled against any person is to the effect that he has committed an offence punishable under S.3 of the Act, which on prima facie judicial scrutiny is found to be not free from doubt, can then in such cases the accused person be blindly and mechanically denied the benefit of anticipatory bail under S. 438 of Cr.p.c. by virtue of the provisions contained in S.18 of the Act merely because he has been so mischievously branded as an accused of having committed an offence under the Atrocities Act ?" In this case the Hon'ble Gujarat High Court observed that "whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?' The answer to this question is undoubtedly and obviously 'No'. Under such circumstances, if the Courts are to apply such provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinizing and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice. Virtually, it would be tantamount to abdicating and relegating its judicial duty, function of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the rules made there under are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of 'judicial consideration-discretion' and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial function-duty to closely scrutinize and test the prima facie dependability of the allegations made in the complaint and reach its own decision." Based on this observation  in paragraph no. 4 of the judgment,  the appeal for anticipatory bail was allowed.

In the judgment of Supreme Court in the case of Vilas Pandurang Pawar vs. the State of Maharashtra reported in 2012 8 SCC 7956, it was observed in paragraph no. 8 of the judgment that Section 18 of SC/ST Act creates a bar for invoking Section 438 of the code. However, a duty is case on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. 

It was further observed in paragraph no. 9 that the scope of Section 18 of the SC/ST read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the Atrocities Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, the scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under of the Code, the provision in the special Act cannot be easily brushed aside by elaborate discussion on the evidence. In this case, the allegations and averments in the complaint clearly established that the complaint had made out a case under the Atrocities Act and therefore as per paragraph no. 12 of that judgment section 18 of the Act is applicable to that case and hence, Hon'ble SC rejected that petition as the petitioners are not entitled to anticipatory bail under section 438 of Cr.P.C. 

Subsequently, the principle laid down by Supreme Court in above mentioned judgment is followed and reiterated by SC in Bachu Das vs. State of Bihar and others, reported in (2014) 3 SCC 471.

In case of MANJU DEVI V/S ONKARJIT SINGH AHLUWALIA @OMKARJEET SINGH & OTHERS on 24/3/2017, Hon'ble SC has taken the same view relying upon the judgment of Vilas Pawar as referred herein above. 

In recent case between Hareshbhai Dhirubhai Danger vs. State of Gujarat & Anr. reported in 2017(3) GLR 1919, Hon'ble Gujarat High Court observed in paragraph no. 9 of the judgment that where the provisions of Atrocities Act are alleged to have been violated while dealing with an application for anticipatory bail, it is the duty of the court to see as to whether an offence under section 3 of the Act has prima facie been made out or not before rejecting an application for anticipatory bail. For this limited inquiry also, very strict standards should be applied by the Court against the accused and in favour of the complainant. After applying such standard, if on facts it is found that the offence under the Atrocities Act is prima facie not made out, then such an application needs to be considered on merits. It may happen that, on merits, the applicant may not be entitled to anticipatory bail, but even to reject such an application on merits, such application has to be accepted as maintainable first. It is this exercise which needs to be undertaken by the Court as mandated by the Hon'ble Supreme Court of India.

Considering the above mentioned legal scenario and ratio laid down by Apex Court, it is concluded that it should not be mechanically decided by the Courts when they adjudicate the applications for anticipatory bail pertaining to the allegations of offences related to section 3 of the Act. The courts should look into the facts and decide that whether an offence is prima facie made out or not. whether there is truthfulness in the complaint or not. whether there are abusing words being used and those words are referred in the complaint by the complainant or not as it is the duty of the Judge to justify such type of application by the judicial mind to prevent the abuse of law and to give proper justice to the victims. Section 18 of the Atrocities Act does not prevent the Court to think judicially in the case of anticipatory bail qua allegations of offences under Atrocities Act. 


Chirag Bhatt 
on 28 August 2017
Published in Criminal Law
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