Know Why Supreme Court Upheld No Anticipatory Bail in SC/ST Amendment Act

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Title of the Case – No Anticipatory Bail for Offences under SC/ST Amendment Act

Name of the case – Prathvi Raj Chauhan vs. Union of India & ors., W.P. (c) No. 1015 of 2018 (Supreme Court)

Date of Judgment – February 10, 2020

Judges: Justice Arun Mishra, Justice Vineet Saran and Justice S. Ravindra Bhat

Subject and sections involved – Section 18A of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.".

Issue:

  1. Whether Section 18A of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is constitutional?

Fact of the Case:

The said section of Act, 1989 was challenged on the ground that section 18A has been enacted to nullify the judgment of Supreme Court in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & anr., (2018) 6 SCC 454, wherein it was held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

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Ratio of the Case:           

The three-judge bench of Supreme Court upheld the constitutionality of the section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, enacted to nullify the effects of the judgment delivered by Supreme Court in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra.

In a supplement judgment pinned by Justice S. Ravindra Bhat, he observes that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.

The court while upholding section 18A of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 mentioned, “while concerning the provisions contained in section 18A with respect to preliminary inquiry of registration of FIR, a preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitutional Bench in Lalita Kumari v. Government of U.P. (2014) 2 SCC 1.

Ratio from Lalita Kumari v. Government of U.P. (2014) 2 SCC 1.

Following observations were made in the case;

  1. i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
  2. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

  1. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
  2. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
  3. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
  4. a) Matrimonial disputes/ family disputes
  5. b) Commercial offences
  6. c) Medical negligence cases
  7. d) Corruption cases
  8. e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.