The Supreme Court, in the Shajan Skariah vs Kerala case (2024), while granting anticipatory bail in an FIR registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, has laid parameters for granting anticipatory bail.
Anticipatory or pre-arrest bail is sought by a person who apprehends arrest in an FIR that is registered or likely to be registered against him in a non-bailable offence. It is presently governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier, Section 438 of the Criminal Procedure Code, 1973).
On the contrary, to curb the historical atrocities committed against Scheduled Castes and Scheduled Tribes, parliament enacted the SC & ST Act in 1989. Besides other things, the Act’s Section 18 contemplates not granting anticipatory bail to non-SC/ST people if the FIR is registered against them for committing any of the atrocities prescribed under Section 3, such as different forms of untouchability, insult, etc.
Due to the likely misuse of the SC & ST Act, the SC in Subhash Kashinath Mahajan vs Maharashtra (2018) held that there is no bar against granting anticipatory bail in cases registered under the Act if no prima facie case (based on first impression) is made out, and further held that the arrest of a non-SC/ST person can be made only after approval from the senior superintendent of police or appointing authority if the accused is a public servant.
The judgement drew huge resentment from the SC/ ST community. To mitigate its effect, parliament brought amendments in 2018 to the Act by inserting Section 18-A to the SC & ST Act, which states that there is no requirement of prior approval for arrest and, notwithstanding a court’s judgement, anticipatory bail cannot be granted. Besides bringing amendments, the Union government also filed a review petition for SC’s 2018 judgement. In Union of India vs Maharashtra (2019), the SC recalled its 2018 judgement, which required approval before arrest. But nothing was discussed about anticipatory bail.
Section 18-A was challenged in Prathvi Raj Chauhan vs UoI, (2020), where the SC rejected the petition on the grounds that it had already recalled its 2018 judgement. But it held that anticipatory bail can be granted if a prima facie case is made out.
In the Shajan Skariah case (2024), by explaining the prima facie test, the SC held that if the necessary ingredients to constitute an offence under the SC & ST Act are not made out, anticipatory bail can be granted. It also held that where a non-SC/ST person takes a defence of “malicious prosecution” due to political or private vendetta, then anticipatory bail cannot be granted.
In simple words, in order to grant anticipatory bail, the courts have to see if allegations fall under Section 3 of the Act. It further held that the Sessions or High Court can conduct a “preliminary inquiry” to determine if essential ingredients are made out.
Though the objective behind laying down parameters for determining prima facie test was to ensure “personal liberty” of an individual is safeguarded against arbitrary arrests, which is welcome, these parameters are very stringent. The test that allegations should not attract the ingredients of offence was a criterion laid down in the State of Haryana vs Bhajan Lal (1990) to quash the entire case against the accused. This is now introduced to grant anticipatory bail in SC/ST cases. Further, the defence of “malicious prosecution” due to vendetta not being allowed may defeat the purpose of laying down the parameters, because all that an SC/ST person—who, with vengeance, intends to get a non-SC/ST person arrested—requires is to draft his complaint by adding the necessary ingredients prescribed under Section 3 of the SC & ST Act.
As observed by the SC recently in Manish Sisodia vs Directorate of Enforcement (2024), the “trial courts and high courts attempt to play safe in matters of grant of bail”. Thus, such stringent conditions will only make the session or High Court play it safe by denying anticipatory bail, leading the person to approach the SC, which requires huge legal expenses, to obtain anticipatory bail. Hence, obtaining anticipatory bail in SC/ST cases becomes a herculean task.
This article is not intended to harm or criticise any SC/ST person, as the fact remains that even today SC/ST people face atrocities in some form or the other. At the same time, there should be checks against the people who try to misuse the law against non-SC/ST people because the Constitution guarantees equanimous protection and enjoyment of right to everyone. Therefore, a balanced approach has to be culled out.
In Gurbaksh Singh Sibbia vs Punjab (1980), a landmark ruling on anticipatory bail and the parameters while granting it under Section 438 of CrPC were laid thus: seriousness of allegations, flight-risk (accused’s presence not being secured at trial), and tampering with evidence or pressuring witnesses. These parameters are followed in all cases pertaining to bail. In SC/ST cases, while applying these parameters for the prima facie test, the seriousness of allegations could be tested in more detail from the perspective of humiliation—that is, for untouchability or social stigma.
Akash Baglekar
Advocate, High Court of Telangana
(Views are personal)