⚖️ Criminal Procedure Code: Anticipatory Bail & SC/ST (Atrocities) Act
🎓 Preparation for RJS, DJS, PCS(J) and Other Judicial Service Exams
The Criminal Procedure Code forms the bedrock of every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS(J), and every other Judicial Service exam.
To help such aspirants, DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus.
*********************
📘 Section 438(1): Bail to Person Apprehending Arrest
- Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Session for a direction that in the event of such arrest he shall be released on bail.
*******************
⚖️ Section 18 of SCs and STs (Prevention of Atrocities) Act, 1989
Section 18 provides:
- Nothing in Section 438 of the 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 Carved Out by the Supreme Court
Dr. Subhash Kashinath Mahajan v. State of Maharashtra [2018]
Date: March 20, 2018
- 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, there is no justification for applying Section 18 in such cases.
- 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 liberty without opportunity before an independent forum or Court.
- An accused is entitled to show to the Court that the complainant’s case is motivated.
- Unless exclusion of anticipatory bail is limited to genuine cases, innocent citizens will have no protection.
- Limiting the exclusion of anticipatory bail is essential for protecting the fundamental right to life and liberty under Article 21.
*******************
📋 Regarding FIRs and Arrests
- Normal rule: register FIR if any information discloses commission of a cognizable offence.
- Exceptions exist — cases under the Atrocities Act also fall in this exceptional category.
- Preliminary inquiry must be held within 7 days (as per Lalita Kumari guidelines).
- Even if preliminary inquiry is held and case is registered, arrest is not a must.
- Registration of FIR and arrest of an accused person are two entirely different legal concepts.
📜 Directions from the Supreme Court
- No arrest under the Atrocities Act without written permission from the appointing authority if the accused is a public servant.
- If not a public servant, written permission must be obtained from the Senior Superintendent of Police of the district.
- Permissions must be for recorded reasons and served both on the accused and the concerned Court.
- A preliminary enquiry by the DSP may be conducted to ensure allegations are not frivolous or motivated.
*******************
📘 Subsequent Amendment by Parliament (August 2018)
- Parliament amended the SC & ST (Prevention of Atrocities) Act to nullify the 2018 Supreme Court judgment.
- Inserted provision: “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.”
📌 Current Legal Position:
Anticipatory bail is not available in cases of accusations under the SC & ST (Prevention of Atrocities) Act.
Anticipatory bail is not available in cases of accusations under the SC & ST (Prevention of Atrocities) Act.
**********
🔹 Delhi Law Academy Jaipur — CrPC Section 438 & SC/ST Act Notes | RJS | DJS | PCS(J)
💬 FAQs — Anticipatory Bail & SC/ST (Atrocities) Act
⚖️Is anticipatory bail available under the SC/ST (Prevention of Atrocities) Act?
＋
Answer: No. Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989 explicitly bars the application of Section 438 CrPC. This means anticipatory bail is not available in cases where a person is accused under this Act.
📜What did the Supreme Court decide in Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018)?
＋
Answer: The Supreme Court held that if an accused can show that allegations are prima facie false or mala fide, the protection under Section 18 of the Atrocities Act should not apply. However, this ruling was later nullified by Parliament through an amendment in August 2018.
🚫What is the current legal position after the 2018 amendment?
＋
Answer: After the Criminal Law Amendment (2018), the Act now states — “The provisions of Section 438 of the Code shall not apply to any case under this Act, notwithstanding any judgment or direction of any court.” Hence, anticipatory bail is completely barred under the SC/ST Act.
👨⚖️Can courts still conduct a preliminary inquiry before arrest under the SC/ST Act?
＋
Answer: The Supreme Court initially allowed preliminary inquiry to prevent false cases. However, after the 2018 amendment, the inquiry provision was diluted, reaffirming that FIR registration is mandatory if a cognizable offence is disclosed.
🧾What safeguards exist against false cases under the SC/ST Act?
＋
Answer: Although anticipatory bail is barred, procedural safeguards such as prior permission before arrest for public servants, and strict scrutiny by authorities are in place to prevent misuse of the law.
🎓How should RJS and DJS aspirants study anticipatory bail under the Atrocities Act?
＋
Answer: Judiciary aspirants should:
- Study Section 438 CrPC alongside Section 18 of the Atrocities Act.
- Memorize the Dr. Subhash Mahajan (2018) case and subsequent 2018 amendment.
- Understand the difference between anticipatory bail and regular bail.
- Review Delhi Law Academy’s detailed CrPC modules for exam-ready clarity.
📘 Free Study Material for Judiciary Aspirants!
Download our FREE study material prepared by Delhi Law Academy’s expert faculty.
Contact us
📍 Delhi Law Academy – Jaipur Branch
6C, Tower 2, Coaching Hub, Pratap Nagar, Jaipur – 302033
📞 Phone:
+91 9911916552
+91 8447285606
✉️ Email:
contactus@delhilawacademy.com