Anticipatory Bail Can't Be Denied U/S 18 Of SC/ST Act When FIR Doesn't Mention Offence Was Due To Victim's SC Status: HP High Court

The Himachal Pradesh High Court has held that when an FIR does not mention that the offence against the victim, in this case rape, was because they belonged to a Scheduled caste commmunity, anticipatory bail can't be denied u/s 18 of the SC/ST Act, which bars the grant of anticipatory bail.Justice Virender Singh: “The FIR, in question, there is no reference with regard to the fact that the victim was allegedly raped on the ground that she belongs to scheduled caste community. If there is no reference with regard to ingredients of the SC & ST Act, in that eventuality, the bar as created by Section 18 of the SC & ST Act does not come in the way of this Court to grant relief to the applicant.”Background Facts: On 05.04.2025, a complaint was filed against the applicant, Sahil Sharma, by a woman around 20 years old, at the Women Police Station, Chamba. She alleged that the applicant had developed physical relations with her, with a false promise of marrying her. She claimed that she was 17 years old when they first met and used to constantly meet each other thereafter. However, just days before their planned marriage, the applicant's mobile phone became unreachable, and according to the complainant, despite her best efforts, she was unable to contact him. Based on the allegations, an FIR was registered against the applicant under Section 376 of the Indian Penal Code for the offence of rape and under Section 4 of the Protection of Children from Sexual Offences Act, 2012, for penetrative sexual assault on a child. Later, the police added Section 3(2)(v) of the SC & ST Act, which enhances the punishment under the IPC with ten years or more if it is committed on the ground that the victim belongs to a Scheduled Caste or Scheduled Tribe. The complainant further alleged that the applicant habitually consumed alcohol and used derogatory and casteist remarks against her, calling her names such as 'Chamar' and 'Churi.' Aggrieved, the applicant filed an application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with a prayer to direct the Police/Investigating Officer to release him on bail, in the event of his arrest. Findings:The Court observed that the FIR did not contain any mention of the complainant's caste or any allegation that the offence was committed because she was a member of a Scheduled Caste. Additionally, the initial two status reports submitted to the Court also made no reference to the SC/ST Act.It further observed that the police added Section 3(2)(v) of the SC&ST Act later, based on a supplementary statement recorded under Section 180 of the BNSS, in which the complainant alleged that she was sexually exploited because she belonged to the Scheduled Caste.The Court emphasised that while deciding the question of whether to grant relief under Section 482 of the BNSS, only the allegations mentioned in the FIR have to be considered. In this case the FIR made no mention of the complainant's caste, nor did it mention that she was allegedly raped because she belonged to Scheduled Caste community.In Shajan Skaria versus State of Kerala, 2024 the Supreme Court held “if necessary ingredients to constitute the offence under the SC&ST Act, are not made out upon the reading of the complaint, no case can be said to exist prima facie”. Therefore, the Court held that the absence of any reference to the SC&ST Act in the FIR or the status reports meant that the later addition of Section 3(2)(v) of the Act can't justify denial of bail. In Allarakha Habib Memon & Others versus State of Gujarat, 2024 the Supreme Court held that “statements recorded after police deliberation during investigation are governed by Section 181 BNSS and cannot be used except for limited purposes”.The Court remarked that the complainant's supplementary statement could not be relied upon to establish an offence under the SC/ST Act for the purpose of denying anticipatory bail under Section 18 of the SC&ST Act. It remarked that the investigation was complete and the applicant had cooperated during the investigation. The Court held that dismissal of the application would amount to pretrial punishment, which is prohibited under the law, as the presumption of innocence is available to the applicant until proven guilty. Thus, the Court directed that the applicant be released on bail, while granting the respondent State liberty to move an appropriate application, in case, any of the bail conditions is violated by the applicant. Case Name: Sahil Sharma v/s State of HP & AnotherCase No.: Cr.MP(M)No.7220 of 2020Date of Decision: 24.06.2025For the applicant : Applicant in person with Mr. Ashok Sharma, Senior Advocate, assisted by Ms. Anubhuti Sharma, Advocate. For the respondent: Mr. Tejasvi Sharma, Additional Advocate General, with Mr. Rohit Sharma, Deputy Advocate General, assisted by ASI Nikhil Kumar, Women Police Station, Chamba, District Chamba. Respondent No.2, in person with Ms. Kritika Sharma & Mr. Gaurav Kumar, Advocates.Click...

Anticipatory Bail Can't Be Denied U/S 18 Of SC/ST Act When FIR Doesn't Mention Offence Was Due To Victim's SC Status: HP High Court

Mehak Aggarwal

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