S.18 of SC/ST Act-Unless The 'Offender's Action Is Impelled By The Consideration That The Victim Is A Member Of 'SC or ST', Bar For Anticipatory Bail Won't Apply

In a significant judgment, a Single Judge Bench of the Delhi High Court comprising of Justice Anup Jairam Bhambhani on Tuesday while granting anticipatory bail to an accused charged under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 held that the anticipatory bail application under Sec. 438 of CrPC can only be barred under Sec. 18 of the SC ST Act where the accused commits an offence particularly for the reason that the victim is a member of SC or ST community. The Court granted anticipatory bail to the accused charged for raping the victim with a false promise of marrying her along with Sec. 3(2)(v) of the SC ST Act, 1989. BACKGROUND OF THE CASE An FIR was registered against the accused under Sec. 354D, 376 and 506 of IPC along with Sec. 3(2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 based on the statements recorded under Sec. 164 of CrPC. The primary allegation against the accused was that he had committed rape on the prosecutrix on a false pretext of marriage also accusing him of committing the offences of stalking and criminal intimidation. Sec. 3(2)(v) of the SC ST Act provides for the cases where any offence is committed under IPC punishable with imprisonment for a term of 10 years or more against any person who is the member of SC or ST community. It also provides that in such cases, the punishment will be enhanced to life imprisonment with fine. An anticipatory bail was then filed by the accused, applicant in the case, under Sec. 438 of CrPC. POINTS OF CONSIDERATION BEFORE THE BENCH The High Court while dealing with the grant of anticipatory bail examined the following aspects in the matter: Maintainability of anticipatory bail application under Sec. 438 CrPC vis-à-vis Sec. 18 of the SC ST Act, 1989.Individual merits of the bail plea under Sec. 438 CrPC in the matter.Whether anticipatory bail can be granted after non bailable warrants are issued against an accused person?Relevance of the judgment PV Narasimha Rao v. State (CBI) 1996 (Delhi HC) in cases where bailable or non bailable warrants are issued against accused and whether or not such condition will restrict the court in granting anticipatory bail to the accused person. ON MAINTAINIBILITY OF SEC. 438 CRPC VIS-À-VIS SEC. 18 OF SC ST ACT, 1989 Arguments of the State Mr. Tarang Srivastava, Asst. Public Prosecutor (APP) representing the State objected to the maintainability of the application by relying on Sec. 18 of the SC ST Act. According to the said provision, any person committing an offence under the Act shall not be allowed to apply for anticipatory bail application under Sec. 438 CrPC. He submitted that as the accused has also been charged with Sec. 3(2)(v) of the Act, the application of the accused is bar by Sec. 18 and thus, is not maintainable in the court of law. In doing so, the APP relied on the judgment of Prathvi Raj Chauhan v. Union of India & Ors. (2020) 4 SCC 727 wherein the apex court held that the bar of applicability of Sec. 438 CrPC shall not apply to cases under SC ST Act only if it is proved that a prima facie case for the applicability of provisions of the Act is not made out in the complaint. According to the State, the statements of the victim under sec. 164 CrPC reveals and makes a prima facie case against the accused under sec. 3(2)(v) of the Act has been committed. He further submitted that the in the Prathvi Raj judgment the Supreme Court also observed that the jurisdiction under Sec. 438 in cases of SC ST Act must be used only in exceptional cases where no prima facie case under the Act is made out. "A liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament." The Supreme Court observed in the judgment. The State further relied on another judgment of the Supreme Court in Manju Devi vs. Onkarjit Singh Ahluwalia & Ors. (2017) wherein it was held that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process and can only be taken into consideration at the time of trial. Therefore, it was argued by the APP that the observation applies equally at the stage where the court is considering the plea of anticipatory bail and that the court cannot look into the merits of the allegations being false at the time of considering the present bail application. Arguments of the Applicant Adv. Pradeep Teotia appearing for the applicant heavily relied on Prathvi Raj Chauhan judgment and argued that in the present case, the complaint does not reveal any prima facie case under the SC ST Act due to which the bar under Sec. 18 of the Act does not arise. It was further argued that sec. 3(2)(v) of the Act only applies in cases where it is proved that the person has committed an offence against a person 'only for the reason' belonging to the ...

S.18 of SC/ST Act-Unless The 'Offender's Action Is Impelled By The Consideration That The Victim Is A Member Of 'SC or ST', Bar For Anticipatory Bail Won't Apply

Nupur Thapliyal

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