The Madras High Court recently clarified that High Courts still retain the authority to grant anticipatory bail when it comes to cases under the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities Act), 1989 (SC/ST Act). The clarification was prompted in view of Sections 18 and 18A of the SC/ST Act, which bars the application of Section 438 of the Code of Criminal Procedure (CrPC) when it comes to offences under the Act. Section 438, CrPC deals with the grant of anticipatory bail.
All the same, the Justice GR Swaminathan highlighted that High Courts are still empowered to grant anticipatory bail in exercise of the their inherent powers under Section 482, CrPC. As stated in the order passed last month,
“Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers to make such orders as to secure the ends of justice. I hope I am not indulging in quibbling or hair-splitting when I say that neither Section 18 nor Section 18 A engraft a bar against grant of anticipatory bail. They are to the effect that the provision of Section 438 of the Code shall not apply to a case under the Atrocities Act. Even if Section 438 of Cr.PC is not available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that this Court is very much possessed of the power to grant anticipatory bail even in cases arising under the Schedules Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitions can be filed under Article 226 of the Constitution of India or under Section 482 of Cr.PC.”
In doing so, the High Court placed particular reliance on the Supreme Court’s 2018 judgment in Dr. Subhash Kashinath Mahajan v. State of Maharashtra. In that judgment, the Supreme Court had opined that the bar under Section 18 of the SC/ST Act, against grant of anticipatory bail under Section 438, CrPC cannot be absolute.
A Division Bench had opined that the bar would not apply if the Court found that there was no prima facie case made out against the accused in an SC/ST Act case and the complaint is prima facie mala fide.
Following this judgment, the Central Government introduced Section 18A of the SC/ST Act, which reiterated that Section 438A, CrPC would not apply in cases under the SC/ST Act, regardless of any judgment, order or direction of any court.
After the introduction of this provision, a three-judge Bench of the Supreme Court also passed an order in the Subhash Kashinath case, on a review petition filed by the Central Government challenging the 2018 judgment. By this order, the Supreme Court set aside some of the directions issued by the two-Judge Bench.
In this backdrop, Justice Swaminathan mused,
“Section 18 A (2) is a mere reiteration of Section 18 which provided for exclusion of Section 438 of Cr.Pc. The question is whether the use of the expression “notwithstanding any judgment or order or direction of any court” (under Section 18A of the SC/ST Act) can make any difference.”
On a perusal of the order passed by the Supreme Court in the Government’s review plea, Justice Swaminathan answered this question in the negative, noting that,
“On a careful reading of the judgement dated 01.10.2019, one can note that the essence and soul of Dr.Subhash Kashinath Mahajan judgment has not only survived but remains intact.“
On this aspect, the judge also pointed out that while introducing Section 18A of the SC/ST Act, the Government had not taken away the “basis on which the decision” had been given. As explained in the judgment,
“While it is not open to the legislature to declare that a judicial pronouncement given by a court of law would not be binding, it can alter the very basis upon which the decision has been given. They are known as validating Acts. They may make ineffective the judgments and orders of competent courts. The alteration should be made in such a manner that it would no more be possible for the court to arrive at the same verdict. In other words, the very premise of the earlier judgment should be uprooted, thereby resulting in a fundamental change of the circumstances upon which it was founded …
… However … it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.“
As far as the grant of anticipatory bail in SC/ST Act cases are concerned, the High Court found that the law in Subhash Kashinath Mahajan would still hold good.
“In Dr.Subhash Kashinath Mahajan, the Hon’ble Supreme Court had specifically held that the exclusion of Section 438 of Cr.PC applies when a prima facie case of commission of offence under the Atrocities Act is made out. On the other hand, if it can be shown that he allegations are prima facie motivated and false, such exclusion will not apply. Thus, the decision rendered by the Hon’ble Supreme Court in Dr.Subhash Kashinath Mahajan rests on an interpretation of Section 438 of Cr.PC. Section 18 A does not appear to have removed the basis on which Dr.Subhash Kashinath Mahajan judgment is founded. Mere employment of the expression “notwithstanding any judgment or order or direction of any Court” may not make any difference.”
The High Court further opined that, on applying the principles in the Subhash Kashinath cases, even after the introduction of Section 18A, SC/ST Act, the Sessions Court should also have powers to grant anticipatory bail in such cases (where there is no prima facie case made out).
“I am therefore tempted to hold that even post amendment, Sessions Courts also will have the power to grant anticipatory bail”, Justice Swaminathan observes.
However, the judge proceeded to acknowledge that Sessions Courts, as the law presently stands, are expressly excluded from granting anticipatory in SC/ST cases.
“I cannot lose sight of the fact that the constitutional validity of Section 18 A has been challenged before the Hon’ble Supreme Court. The Hon’ble Supreme Court specifically declined to stay the operation of this provision, though a strong request was made. Thus, as on date, in view of Section 18 A, Section 438 of Cr.PC stands excluded in cases arising under the Atrocities Act.“
In any case, Justice Swaminathan reiterated that High Courts would continue to have the power to grant anticipatory bail in SC/ST cases, regardless of the application of Section 18A.
“.The outcome of the challenge can be one way or the other. Section 18 A of the Act can be upheld. Or it can be struck down. Even if its validity is upheld, the High Courts would still be entitled to grant anticipatory bail. The statute only excludes the applicability of Section 438 of Cr.PC 12…. I initially felt that Sessions Courts can also grant anticipatory bail in such cases. But, so long as Section 18 A (2) of the Act is in the statute book, since Sessions Courts cannot invoke Section 482 of Cr.PC, I hold that it is only the High Court which can grant the relief of anticipatory bail and not the Sessions Courts.”
In view of this position, the High Court proceeded to deal with the case at hand. On an appraisal of the material on record, the Court ultimately found that the complaint made was prima facie ill-motivated, false and mala fide. Therefore, it allowed the plea for anticipatory bail. Accordingly, in the event of a registration of FIR and arrest, the Court ordered that the petitioners be released on bail on the execution of a bond of Rs. 10,000 apart from sureties. In such an event, the petitioners were also directed to cooperate with the investigation, among other conditions. On the breach of any prescribed condition, the Court also clarified that their anticipatory bail would stand cancelled.
[Read the order]