Courtesy: Sadhvi Singh
Anticipatory Bail or Pre-Arrest Bail is a remedy provided in criminal law which can be invoked upon anticipation of arrest with regard to a particular offence. Such anticipation must be grounded in concrete facts and not in vague and general allegations. The law on anticipatory bail has been settled in various landmark judgments by the Hon’ble Apex Court, the most recent being Sushila Aggarwal and others vs. State (NCT of Delhi) and another.
However, when it comes to offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the remedy of anticipatory bail stands on a different footing.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted by the Union Legislature with the following objectives:
- To prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes,
- To provide for Special Courts and the Exclusive Special Courts for the trial of such offences, and
- For the relief and rehabilitation of the victims of such offences
In light of the aforesaid objective, it was then deemed suitable and necessary to impose a bar upon the remedy of anticipatory bail in such offences. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 expressly bars the application of Section 438 CrPC in cases where a person is accused of committing an offence under the Act. It provides that:
“18. 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.”
The aforesaid provision was subjected to challenge before the Hon’ble Apex Court, and the Hon’ble Apex Court in the case of State of M.P. & Anr. vs. Ram Krishna Balothia & Anr (1995) 3 SCC 221 upheld the provision, and held as follows:
“The exclusion of Section 438 CrPC in connection with offences under the Act has to be viewed in the contest of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail as pointed out in the Statement of Objects and Reasons of the Act. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences”
Can anticipatory bail be granted in SC/ST Act matters?
Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 imposes a bar, and the same has been upheld by the Hon’ble Apex Court, however, it has been settled now, most recently in the case of Shajan Skaria vs. State of Kerala and another 2024 INSC 625 that the said bar is not absolute in nature, and no absolute bar can be imposed. The Hon’ble Apex Court held as follows:
“…It is clear from the aforesaid discussion that Section 18 of the Act, 1989 does not impose an absolute fetter on the power of the courts to examine whether a prima facie case attracting the provisions of the Act, 1989 is made out or not. As discussed, Section 18 stipulates that in any case which involves the arrest of any person on the accusation of having committed an offence under the Act, 1989, the benefit of anticipatory bail under Section 438 of CrPC would not be available to the accused…”
Hence, anticipatory bail can be granted in cases where offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are alleged to have been committed, however, the inquiry by the Court is limited to the effect that whether a prima facie case is made out or not.
In a recent judgment of Kiran vs. Rajkumar Jivraj Jain and another 2025 INSC 1067, the Hon’ble Apex Court has cleared the air on the issue, and held as follows:
6. In light of the parameters in relation to the applicability of Section 18 of the Act emanating from afore-discussed various decisions of this Court, the proposition could be summarised that as the provision of Section 18 of the Scheduled Caste and Scheduled Tribes, Act, 1989 with express language excludes the applicability of Section 438, Cr.PC, it creates a bar against grant of anticipatory bail in absolute terms in relations to the arrest of a person who faces specific accusations of having committed the offence under the Scheduled Caste and Scheduled Tribe Act. The benefit of anticipatory bail for such an accused is taken off.
6.1. The absolute nature of bar, however, could be read and has to be applied with a rider. In a given case where on the face of it the offence under Section 3 of the Act is found to have not been made out and that the accusations relating to the commission of such offence are devoid of prima facie merits, the Court has a room to exercise the discretion to grant anticipatory bail to the accused under Section 438 of the Code.
6.2. Non-making of prima facie case about the commission of offence is perceived to be such a situation where the Court can arrive at such a conclusion in the first blush itself or by way of the first impression upon very reading of the averments in the FIR. The contents and the allegations in the FIR would be decisive in this regard. Furthermore, in reaching a conclusion as to whether a prima facie offence is made out or not, it would not be permissible for the Court to travel into the evidentiary realm or to consider other materials, nor the Court could advert to conduct a mini trial.
What are the grounds on which the Hon’ble Allahabad High Court may grant anticipatory bail in an offence under the SC/ST Act?
Normally, in matters pertaining to anticipatory bail, factors for consideration have been laid down by the Courts which include prima facie case, possibility of fleeing, criminal history, among other things. However, when it comes to Anticipatory Bail in matters pertaining to SC/ST Act, the inquiry by the Court has been limited in light of the unique nature of offences.
As a result, the Hon’ble Allahabad High Court, while entertaining an application for anticipatory bail, is constricted to find out whether a prima facie case is made out or not. If a prima facie case is made out, the pre-arrest bail shall not be granted in view of the embargo envisioned in the Act. However, in case no prima facie case is made out from the contents of the allegations made, the applicant is entitled to anticipatory bail, and the bar under Section 18 of the Act of 1989 shall not stand in the way.