The Gujarat high court on Monday granted anticipatory bail to a person accused under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, observing that since the accused did not know the identity of the victim, the bar placed on pre-arrest bail in the special law will not apply.
Accordingly, the bench concluded that though prima facie the provision of section 3(2)(v) of the SCST Act is applicable on account of the alleged offences under sections 306, 201 and 114 of the IPC, however, the appellant was not knowing the deceased person and prima facie no offence can be said to have been committed by the appellant under sections 306, 201 and 114 of the IPC as it is only alleged that the appellant has deleted the CCTV footage.
"In such circumstances, I am of the opinion that the complaint does not make out a prima facie case for applicability of the provisions of the SCST Act and therefore, the bar created by section 18 and 18A thereof shall not apply as no prima facie materials exist warranting arrest of the appellant", ordered the bench, inclined to exercise the discretionary powers under section 438 of the Code of Criminal Procedure, and grant anticipatory bail to the appellant, in the event of his arrest pursuant to impugned complaint.
It may be noted that when the present application was listed before another Single Bench of Justise Paresh Upadhyay of the High Court on June 4, the Judge had opined that in view of insertion of Section 18A in the 1989 Act vide the Amendment Act, 2018, more particularly subsection (2) of the said Section 18A, "it may not be open to the Court to consider, as to whether discretion under Section 438 of the Code of Criminal Procedure, needs to be exercised in such cases or not", and "this application therefore may not be entertained, as not maintainable".
In respect of the anticipatory bail granted to the co-accused on May 4, Justice Upadhyay had observed that "Judicial discipline demands that the orders passed by the Coordinate Bench should be followed and Court should not be heard in different voices, on broad principles of law", and that "at the same time, following those orders and exercise of discretion may lead to a situation, which is prohibited under the law". Accordingly, he had required the matter to be placed before the Chief Justice for consideration or for listing before a division bench.
In Prathvi Raj Chauhan, the three-judge bench has clarified that if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.
"Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. The appellant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law", the Single Judge further provided.
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