AnticipatoryBail-7

There is no absolute bar to granting anticipatory bail under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Supreme Court has ruled.

A Bench of Justice JB Pardiwala and Justice Manoj Misra said that “the bar under Section 18 of the (SC/ST) Act, 1989 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the Act, 1989.”

Section 18 of the SC/ST Act excludes the application of Section 438 of the Criminal Procedure Code—which allows a person to apply for anticipatory bail—in cases involving the arrest of any person on an accusation of having committed an offence under the Act.

However, the Bench said Section 18 of the Act, 1989, does not impose an absolute fetter on the power of the courts to examine for grant of anticipatory bail whether a prima facie case attracting the provisions of the Act, 1989 is made out or not and that it bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC.

Section 60A of CrPC provides that no arrest shall be made except in accordance with the provisions of CrPC or any other law for the time being in force and providing for arrest while Section 41 of CrPC confers upon the police the power to arrest without warrant in certain situations.

It granted anticipatory bail to Shajan Skaria—Editor of Malayalam YouTube News Channel ‘Marunadan Malayalee’—accused under SC/ST Act for allegedly making certain derogatory remarks against CPI-M leader and Kerala MLA PV Srinijin regarding ‘maladministration’ of the Sports Hostel in his capacity as District Sports Council Chairman.

“If on a prima facie reading of the materials referred to in the complaint and the complaint itself, the ingredients necessary for constituting the offence are not made out, then the bar of Section 18 would not be applicable and it would be open to the courts to consider the plea for the grant pre-arrest bail on its own merits”, the Bench said in its verdict on Friday.

“An accusation which does not disclose the necessary ingredients of the offence on a prima facie reading cannot be said to be sufficient to bring into operation the bar envisaged by Section 18 of the Act, 1989. Holding otherwise would mean that even a plain accusation, devoid of the essential ingredients required for constituting the offence, would be enough for invoking the bar under Section 18,” it said.

However, the top court clarified that “if all the ingredients necessary for constituting the offence (under SC/ST ACT) are borne out from the complaint, then the remedy of anticipatory bail becomes unavailable to the accused.”

The top court also ruled that mere insult of a member of an SC/ST community was not an offence under the 1989 Act, “unless such insult or intimidation is on the ground that the victim belongs to Scheduled Caste or Scheduled Tribe.”

It said “the expression “intent to humiliate” as it appears in Section 3(1)® of the Act, 1989 must necessarily be construed in the larger context in which the concept of humiliation of the marginalised groups has been understood by various scholars. It is not ordinary insult or intimidation which would amount to ‘humiliation’ that is sought to be made punishable under the Act, 1989.”

Describing anticipatory bail as ‘an important concomitant of personal liberty of the individual,” the Bench said, “The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989.”

Bloggers’ Comment;

By this judgment The Apex court upheld the rule of law as the “Bail is a rule and Jail is Exception” protecting the fundamental rights of the citizen of this country that the right to freedom is sacrosanct and it can only be curtained if the situation warranted.

Thus an Anticipatory Bail can be granted ; 

• If the case is found to be a false one.
• If the Offence is not made out in the FIR etc.
• If there is no need for the arrest of the accused due to his social status.
• If the accused passed the FITTA Test crafted in section 41 of CrPC.,1973 and section 35(1)(b)(ii) of BNSS-2023.
• If Right to life and personal liberty is more important to be protected than sending the accused in jail.
• If the nature and gravity of the accusation is heinous one.
• If the offence is economic one. ( Financial fraud ) 
• The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court.
• Where the accusation has been made to injure or humiliate the applicant, to settle the personal score or coming out of a civil dispute.