Lordship g r swaminathan High courts can grant anticipatory bail in cases registered under SC/ST Act


High courts can grant anticipatory bail in cases registered under SC/ST Act

Kaushik Kannan | TNN | Dec 11, 2019, 17:54 IST

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MADURAI: Though SC/STs (Prevention of Atrocities) Act, 1989 bars anticipatory bail

 people facing cases under the Act, high courts

 can still grant them the relief by invoking their inherent power under Section 482 of CrPC and, ruled Madras high court on Wednesday.

“Section 438 of CrPC is not the sole repository of the power to grant anticipatory bail. High courts are endowed with inherent powers to make such orders as to secure the ends of justice,” said Justice G R Swaminathan, adding, “even if Section 438 of CrPC is not available, Section 482 can very much be invoked. Hence, I hold that this court is very much possessed of the power to grant anticipatory bail even in cases arising under the SC/ST Act

 as the petitions can be filed under Article 226 of the Constitution or under Section 482 of CrPC.”

As of now, whenever a case under SC/STs Act is registered, counsel for the accused would first file a petition in the high court to permit the accused to surrender the jurisdictional court and then mandate the lower court to accept the surrender and dispose of the bail petition the same day.

Justice Swaminathan, in his present order, said, “some judges held that such petitions were not maintainable. Some used to give directions that the bail petitions were to be considered expeditiously.” He further added that such a camouflaging became unnecessary following the definite ruling of the Supreme Court

 in 2018 (Dr Subhash Kashinath Mahajan case).

The judge observed that the Supreme Court held that there is no absolute bar against grant of anticipatory bail in cases under SC/STs Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be mala fide.

The judge said that though the central government filed a review petition before the apex court, the essence and soul of Dr Subhash Kashinath Mahajan judgment had not only survived but remained intact.

“I cannot lose sight of the fact that the constitutional validity of Section 18 A has been challenged before the Supreme Court and the court specifically declined to stay the operation of this provision, though a strong request was made. Thus, as on date, in view of Section 18A, Section 438 of CrPC stands excluded in cases arising under the SC/ST Atrocities Act,” observed Justice Swaminathan. He also held that a petition for anticipatory bail is maintainable even if the case has been registered under the SC/ST Act.

The judge was passing orders on an anticipatory petition filed by one Dr S Ariharan and S Rajeswari against whom a sanitary worker had lodged a caste atrocity complaint before Tirumangalam police in Madurai

district. The allegation was that they abused the sanitary worker using the name of the community.

After the government side said no FIR had been registered, Justice Swaminathan observed that though as on date, there is no FIR against them, they have a legitimate apprehension that they may be arrested. He then granted them anticipatory bail, applying the principles laid down by the Supreme Court.

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