Court Not Denuded Of Power To Look Into Anticipatory Bail Plea In Cases Under SC/ ST Act: Calcutta HC [Read Judgment]

The Calcutta High Court has held that despite the recent amendment providing against the applicability of Section 438 CrPC (anticipatory bail) to cases under the Scheduled Castes and the Scheduled Tribes Act (atrocities against members of SC/ST), a court is not denuded of its power to look into the anticipatory bail petition of a person accused of having committed an offence under Section 3 of the Act without indicating the nature of the offence.A bench of Justice Sanjib Banerjee and Justice Surva Ghosh said a court has to assess whether the accusations constitute an offence under the Act and if the question is answered in the affirmative, the high court or the court of sessions will proceed no further with the petition as the embargo under Section 18 of the Act (Section 438 of the Code not to apply to persons committing an offence under the Act) would have fallen into place.“The legal position is not that merely because an FIR refers to a provision under the Act or the complaint mentions Section 3 or Section 4 of the Act without the complaint making out any ingredients of an offence under either provision, the operation of Section 438 of the Code would stand automatically suspended. A petition under Section 438 of the Code may still be carried by the accused to the appropriate forum whereupon such forum will assess whether the accusation constitutes an offence under the said Act. Once such question is answered in the affirmative, the High Court or the court of sessions will proceed no further with the petition as the embargo under Section 18 of the Act would have fallen into place. But if the question is answered in the negative, Section 18 of the Act no longer remains a bar or stands in the way of the petition under Section 438 of the Code being considered on merits,” said the bench.The bench said so while deciding the plea of one Debjyoti Bhattacharya seeking anticipatory bail in a case registered against him wherein one of the charges was under Section 3 of the SC and ST (Prevention of Atrocities) Act.The petitioner, through advocate Ayan Bhattacharya, contended that despite the recent amendment to the Act and the introduction of Section 18-A with effect from August 20, 2018, not only is the petition under Section 438 CrPC maintainable, but the merits of the matter need also to be gone into as in any other case under such provision of the Code. The bench referred to the Supreme Court judgment in Subhash Kashinath Mahajan v. State of Maharashtra which spoke about preliminary and time-bound inquiry and against mandatory arrest due to abuse of law.The high court said, “The judgment in Subhash Kashinath Mahajan was rendered upon interpreting Section 18 of the said Act in the light of the constitutional safeguards pertaining to liberty and freedom and despite Section 18 of the said Act being worded thus: Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”The high court was informed that the review petition is pending before the Supreme Court and noted that, “In the Parliament’s bid to undo the effect of the dictum in Subhash Kashinath Mahajan, Section 18-A was introduced into the Act by an amendment made effective on August 20, 2018” which provides that there is no need for preliminary inquiry for registration of FIR and provisions of Section 438 CrPC are not applicable to any case under this Act.The petitioner before the high court had raised two principal grounds questioning the vires of the amendment or the newly-introduced Section 18-A of the Act contending that an order of court cannot be nullified by any legislature without undoing the basis of such order.The second legal issue raised by the petitioner was that even upon Section 18-A of the Act being taken at face value, it does not imply that the moment a charge in any complaint is brought against a person and such charge is said to be under the said Act, such person has no right to approach an appropriate forum under Section 438 of the Code.The high court refrained from going into the aspect of vires of the amendment post the SC order as it said, “The matter pertaining to the interpretation of Section 18 of the said Act, the judgment in Subhash Kashinath Mahajan and the amendment to the Act introduced in August, 2018 have been among the most important legal news in course of this year. Though there is no embargo, express or otherwise, on the challenge to the validity of Section 18-A being taken up here, since the Supreme Court is in active seisin of the matter, judicial propriety demands that in deference to the primacy of the Supreme Court, a hearing on the validity of such provision should not be started here at this stage. Accordingly, the principal legal issue raised by the petitioner is left unanswered in deference to the Supreme Court having...

Court Not Denuded Of Power To Look Into Anticipatory Bail Plea In Cases Under SC/ ST Act: Calcutta HC [Read Judgment]

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