Whether an accused charged with various offences under the IPC along with the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is entitled for anticipatory bail under Section 438 of the CrPC?

Section 18 of the SC/ST Act which reads as under:

“18. Section 438 of the Code not to apply to persons

committing an offence under the Act.- Nothing in section

438 of the code shall apply in relation to any case involving

the arrest of any person on an accusation of having

committed an offence under this Act.”

A reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act.

Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.

Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No. 1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a decision of the Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State of Orissa, 1996 Cri. L.J. 2743, in spite of the specific bar under Section 438 of the Code, the Courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act.

Ref:

Vilas Pandurang Pawar & Anr. .... Petitioner(s)

Versus

State of Maharashtra & Ors. .... Respondent(s)

Supreme Court of India

SPECIAL LEAVE PETITION (CRL. ) NO . 6432 of 2012

...…………….…………………………J. (P. SATHASIVAM)

..…....…………………………………J. (RANJAN GOGOI)

SEPTEMBER 10, 2012.