ANTICIPATORY BAIL IN SC-ST ACT CASES : TUG OF WAR BETWEEN THE JUDICIARY AND THE PARLIAMENT

Section 18 of SCs and STs( Prevention of Atrocities) Act 1989 provides:

Nothing in section 438 of Criminal Procedure Code
- shall apply to a case involving arrest of any person
- on an accusation of having committed an offence under this Act

Exception to section 18 Atrocities Act carved out by the Supreme Court:

If a person is able to show that, prima facie, he has not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, we do not see any justification for applying Section 18 in such cases.
We hold that the exclusion of Section 438 applies when a prima facie case of commission of offence under the Atrocities Act is made.
On the other hand, if it can be shown that the allegations are prima facie motivated and false, such exclusion will not apply.

Presumption of innocence is a human right.

There cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court.
An accused is certainly entitled to show to the Court, if he apprehends arrest, that the case of the complainant was motivated.
If it can be so shown, there is no reason that the Court is not able to protect liberty of such a person.
There cannot be any mandate under the law for arrest of an innocent.
Unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case, there will be no protection available to innocent citizens.
Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21.

Regarding FIRs and Arrests:

We are conscious that normal rule is to register FIR if any information discloses commission of a cognizable offence.
There are however, exceptions to this rule.
We are of the view that cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held.
Such inquiry must be time-bound and should not exceed seven days in view of directions in Lalita Kumari.
Even if preliminary inquiry is held and case is registered, arrest is not a must.
In Lalita Kumari it was observed :

“While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. In fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law, and there are several safeguards available against arrest.”

Directions

We direct:
in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority
if such a person is not a public servant, no arrest may be effected without written permission of the Senior Superintendent of Police of the District.
Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court.
To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

Source:

Dr. Subhash Kashinath Mahajan v. State of Maharashtra March 20, 2018

Subsequent amendment by Parliament

Parliament has since amended the SC & ST [Prevention of Atrocities] Act in August 2018 to nullify the abovesaid judgment of the Supreme Court.
The following provision has been inserted in that Act:

“The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”

The current legal position therefore is that anticipatory bail is not available in case of accusations under the SC & ST [Prevention of Atrocities] Act.