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 taken up such matter for consideration.”
The bench, however, delved into the second issue raised by the petitioner that mere institution of a complaint purported to be under the said Act of 1989 does not, ipso facto, divest an appropriate court of its authority to even receive a petition under Section 438 of the Code.
“Section 18 of the said Act excludes the operation of Section 438 of the Code in relation to any case involving the arrest of any person “on an accusation of having committed an offence under this Act,” it said. Thus, it is only upon an accusation being made that a person had committed an offence under the said Act, that the court in receipt of a petition under Section 438 of the Code is not entitled to proceed therewith any further. However, it cannot be said that merely because a complainant alleges that, say, the person complained against has committed an offence under Section 3 of the Act, without indicating the nature of the act complained against, the complaint has to be regarded as an accusation of the person complained against having committed an offence under the Act.
“The authority of the appropriate court is not denuded to the extent that it may not even look into the complaint to ascertain whether a case of the offence under the said Act having been committed is made out in the complaint. Indeed, such exercise of jurisdiction is not prohibited by Section 18 of the Act; and, if the court finds that the complaint does not make out an offence under the said Act having been committed, the embargo under Section 18 of the Act would not come into play,” said the court.
In saying so, the bench relied upon case titled Vilas Pandurang Pawar v State of Maharashtra, wherein the Supreme Court had held that “Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail”.
The high court was of the view that “Such further consideration becomes necessary since, as experience shows, charges come under several provisions simultaneously, including under different statutes; and, say, the complaint of a minor injury suffered in course of an assault can be combined with a charge under the said Act in respect of the same incident”.
“High judicial authorities instruct as to what ought to be the considerations that weigh with the court while assessing a petition under Section 438 of the Code. It is also left to the discretion of the appropriate superior courts as to what condition to impose in what situation while granting anticipatory bail. Similarly, an investigating officer has to apply his mind and take relevant considerations into account before proceeding to arrest a person complained against, notwithstanding such complaint being in respect of a non-bailable offence.
“An investigating officer should not proceed to arrest a person complained against merely because a complaint has been made and such complaint pertains to a non-bailable offence. Indeed, when an offence is such that Section 438 of the Code may not be open to the person complained against, a greater degree of circumspection has to be exercised by the investigating officer before proceeding to arrest the person complained against,” it added.
The court went on to dismiss the instant anticipatory bail plea as it took note of the police case diary to conclude that it cannot be said that the accusation does not disclose the ingredients of an offence under the said Act.
“Once so much is seen, in the light of Section 18 of the said Act read with Section 18-A thereof – without going into the question of the validity of such provision – this petition cannot be considered any further,” it concluded.
Read the Judgment Here