Chh HC | Under what circumstances can ‘Anticipatory Bail’ be granted in light of the bar created under S. 18 of SC/ST Act; Appeal Allowed

Chhattisgarh High Court: Manindra Mohan Shrivastava J., granted anticipatory bail and set aside the impugned rejection order on the ground of patent illegality.

The applicant was apprehending his arrest for the offence punishable under Section 294, 324, 506 of Penal Code, 1860 i.e. IPC and Section 3(2) (v) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e. Act of 1989 registered at Police Station Gole Bazar, Raipur, District Raipur. The applicant had applied for grant of anticipatory bail before the Court below which was rejected due to the bar created under Section 18 of the Act of 1989 and opining that as the allegations against the applicant is of the commission of offences not only under IPC but also under Section 3(2) (v) (a) of the Act of 1989, the application is not maintainable. Aggrieved by this rejection order, the applicant filed the instant appeal.

Counsel for the appellants submitted that there is a bar against an entertaining application for grant of anticipatory bail where the accused is alleged to have committed offence under the Act of 1989, in appropriate cases when no prima facie case is made out, in exceptional cases, the benefit of anticipatory bail could be extended.

Counsel for the State submitted that in the present case, admittedly, the prosecutrix belonged to reserved category and the applicant and the prosecutrix were friend and when they were going on for a ride in the vehicle of the applicant, the applicant fully knowing that the prosecutrix belonged to reserved category, gave her assault, resulting in injury, therefore, prima facie case under Section 3(2)(v) (a) of the Act of 1989 would definitely made out and that would bar application for grant of anticipatory bail in view of the provisions contained under Section 18 of the Act of 1989.

The Court relied on judgment Khuman Singh v. State of Madhya Pradesh, 2019 SCC Online SC 1104 wherein it was held

  1. The object of Section 3(2)(v) of the Act is to provide for enhanced punishment with regard to the offences under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that the victim is a member of a Scheduled Caste or a Scheduled Tribe.
  1. In Dinesh alias Buddha v. State of Rajasthan, (2006) 3 SCC 771, the

Supreme Court held as under:-

“15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

  1. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar”-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 

The Court further relied on judgment Prathvi Raj Chouhan v. Union of India, (2020) 4 SCC 727 wherein it was observed:

  1. “The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
  2. The challenge to the provisions has been rendered academic. In view of the aforesaid clarifications, we dispose of the petitions.
  3. Ravindra Bhat, J. (concurring)– I am in agreement with the judgment

proposed by Arun Mishra, J. as well as its conclusions that the challenge to the Scheduled Castes and the 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. I would however, supplement the judgment with my opinion.”

The Court thus observed that the offence under Section 3(2)(V)(a) of the Act of 1989 would be prima facie made out only when the allegation by the victim is that the victim was assaulted on the ground that victim belonged to reserved category or where material collected during investigation prima facie shows that the victim was assaulted for the reason that he/she belonged to reserved category.

The Court thus held that

“Even though, offence under the Act of 1989 is registered, where application for grant of anticipatory bail is filed, the Court is required to apply its mind to the relevant provisions of law and considerations as specified by the Supreme Court in the case of Prathvi Raj Chouhan(supra) and if material on record leads to satisfaction that the complaint does not make out a prima facie case, for applicability of the provisions of the Act of 1989, the bar created under Section 18 of the Act of 1989 shall not apply and in appropriate cases of exceptional nature, benefit of anticipatory bail could be admitted to the applicant”.

In view of the above, impugned order was set aside and appeal allowed.[Pavas Sharma v. State of Chhattisgarh, 2021 SCC OnLine Chh 288, decided on 22-01-2021]


Arunima Bose, Editorial Assistant has put this story together

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