Wednesday, September 22, 2021
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A Question of Bail

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There are misconceptions that pre-arrest bail is not permissible under the Prevention of Atrocities Act, 1989. But apex court judgments have made it absolutely clear that there is no bar on grant of anticipatory bail in appropriate cases

By Rahul Shyam Bhandari

A judgment by the Supreme Court is binding law. Article 141 of the Constitution states that the law declared by the Court is binding on all courts in India. Ordinarily, when a judgment of the Supreme Court is delivered on any important question of law, it is extensively reported by the media. However, we have to be vigilant about incomplete or inaccurate reports. This is what happened in a landmark judgment delivered by the Supreme Court on the bar of anticipatory bail in case of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The uncertainty continues even today about whether pre-arrest bail is barred under the SC/ST Act.

The Act barred the grant of anticipatory bail in Section 18. But the Supreme Court of India in Dr Subhash Kashinath Mahajan vs State of Maharashtra (2018) declared that there was no bar on grant of anticipatory bail under the SC/ST Act, 1989, provided no prima facie case was made out. In addition, the Court passed guidelines mandating “preliminary inquiry” before registration of an FIR by a DSP-rank officer, approval by a sanctioning authority in cases related to public servants and by an SSP in other cases, before an arrest is made.

The law in the Kashinath case led to massive protests nationwide among Scheduled Castes and Scheduled Tribes. In April 2018, a review petition was filed by the Union challenging the directions issued in the judgment. An important concession given by the Union of India in its review petition was that the review was confined only to the direction issued from items (iii) to (v) of the main judgment. This essentially called into question only the necessity of a preliminary inquiry and prior permission mandated before the arrest. As a result, it becomes evident that the part related to “no absolute bar” on the grant of anticipatory bail in the concluding para (ii) of the main judgment was not criticised at all.

In the meantime, an amendment was inserted in Section 18 (A) to nullify the effect of the main judgment. Section 18 reinstated the previous position, making Section 438, CrPC, not applicable and 18 (A) declared that no inquiry or approval was required. Even so, this portion of the amendment was challenged through a writ petition in Prithvi Raj Chauhan vs UOI in the Supreme Court in August 2018. The petitioners questioned the insertion in Section 18 (A) in the Act. Later, this petition was clubbed with the review petition of the Union on January 25, 2019.

Finally, the Supreme Court in a review on October 1, 2019, decided the case, restricting it with respect to the directions challenged by the Union in their petition. This clearly did not include the challenge to a part of the main judgment which ruled that “there is no absolute bar on grant of anticipatory bail”. The Bench examined every aspect in detail, including the doctrine of separation of powers. It was held in para 54 of the case that “the guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. vs R.K. Balothia (1995) 3 SCC. The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above”.

Further, the concluding para declared: “We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of the Constitution of India. Resultantly, we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes. The review petitions are allowed to the extent mentioned above.

From the above narration, it can be safely concluded that the only directions which were assailed before the Court were the ones dealing with the mandate of preliminary inquiry and prior permission for arrest and thus, the Court decided only those issues keeping the ess­ence of the Kashinath judgment intact.

This further gets endorsed from the conclusions arrived at by the Bench in the writ petition which assailed the amended Section 18 (A) of the Act. The writ petition was decided on February 1, 2020. Two separate concurring judgments were given by the Bench consisting of Justices Arun Mishra and J Vineet Saran and another by Justice S Ravindra Bhat. In so far as grant of anticipatory bail is concerned, Justice Mishra held in the concluding para that “concerning the applicability of provisions of Section 438 Cr. PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions”.

Justice Bhat, while agreeing with the majority judgment, said in his separate opinion: “I am in agreement with the judgment proposed by Justice Arun Mishra as well as its conclusions that the challenge to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) (Amendment) Act, 2018 must fail, with the qualifications proposed in the judgment with respect to the inherent power of the court in granting anticipatory bail in cases where prima facie an offence is not made out.”

And further in para 19 of the judgment, he said: “As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.”

A combined reading of these two judgments makes it clear that there is no bar on grant of anticipatory bail under the Act in appropriate cases. Where no prima facie case is made out, the courts will be well within their powers to grant pre-arrest bail, though the nomenclature may vary. However, after the passage of the review judgment, there were misconceptions that bail is not permissible in appeals under the Act or when the provisions of the SC/ST Act are applicable. Various precedents have shown that bail is denied in many cases by High Courts on the premise that the Act bars it, coupled with misinterpretation of the judgment. Courts are well within their powers to grant pre-arrest bail in appropriate cases, including in cases of appeals against an order of refusal of bail under the Act itself.

While India still aims for a casteless society, the Act needs to be strengthened. Simultaneously, frivolous and malicious prosecution needs to be discouraged and the right of bail serves  the purpose. The bench of the Supreme Court said in the concluding para of  the review judgment: “The creation of a casteless society is the ultimate aim.

We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like Act of 1989.”

—The writer is an Advocate-on-Record, Supreme Court

Lead picture: UNI

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