IMPORTANT POINT
Application for anticipatory bail in an offence under SC and ST Act can be entertained only on ground of inapplicability of the Act due to the facts of the case which will have to be gathered only from F.I.R. and not beyond that.

Headnote:Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - Bar to the entertainment of application for anticipatory bail of a person accused of offence under the Act - Jurisdiction of Court to scrutinise and examine the matter to see whether prima facie material existed to "rope in a person in a case under the Act - Scope and extent of entering into such scrutiny - Once the ingredients of offence are available in F.I.R. or complaint, Court would not be justified in entering into further inquiry by summoning case diary or any other material.
       Held: What is intended to be emphasized is that while dealing with an application for anticipatory bail the courts would be justified in merely examining as to whether there is at all an accusation against a person for registering a case under Section 3 of the Act of 1989 and once the ingredients of the offence are available in the FIR or the complaint the courts would not be justified in entering into a further inquiry by summoning the case diary or any other material as to whether the allegations are true or false or whether there is any preponderance of probability of commission of such an offence. Such an exercise in our view is intended to put to a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Section 18 of the Act of 1989 which is apparent from the perusal of the section itself and thus the court at the most would be required to evaluate the FIR itself with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. In our opinion, the court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling for the case diary charge sheet or any other material gathered at the time of investigation but if the allegations in the FIR or the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged. it is only in those miniscule number of cases the courts would be justified in entertaining the application not because it is maintainable but clearly because the Act would be inapplicable in the facts and circumstances of that particular case. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that because once it is gathered from the FIR that the applicant is an accused of committing an offence laid down under Section 3 of the Act of 1989, the bar of Section 18 would instantly operate against the person who has been made an accused of the offence under the Act of 1989. To put it differently, once it is apparent from the FIR that an offence under the Act of 1989 is even alleged the courts would not be justified at all in weighing or scrutinising the preponderance of the probability of commission of the offence by the accused but if from the FIR itself the ingredients of offence as laid down under Section 3 of the Act itself is found to be missing the bar created by Section 18 would not be allowed to operate against an accused and only in that event his application for anticipatory bail would be dealt with by the concerned court to determine whether the Act of 1989 can be said to be rightly applicable against the accused and not to enter into further enquiry into the matter so as to determine whether the allegations levelled against the accused in the FIR are true or false and there would be no justification to enter into the matter further in order to examine whether the allegations levelled against the accused are even prima facie correct or incorrect. Any other interpretation in our opinion, would go against the letter and spirit of the clear provision of Section 18 of the Act of 1989 which has already stood the test of reasonableness and constitutional validity upto the level of the Apex Court. (Para 18)
       Result: Reference answered accordingly.

JUDGMENT

Gyan Sudha Misra, J. - While the validity of Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 1989 (hereinafter referred to as 'the Act of 1989') which bars entertainment of application of anticipatory bail on behalf of any person who is accused of having committed an offence under the Act of 1989 has been upheld by the Supreme Court in no uncertain terms in the matter of State of Madhya Pradesh v. Ramkrishna Balotia1, the courts at the district level as also the High Courts are often enough confronted with a variety of situations in cases where even a plain reading of the First Information Report (FIR) does not disclose commission of any offence under the Act of 1989 and still it rejects applications for grant of anticipatory bail on the ground of its maintainability merely because the case has been registered under the Act of 1989. Such situations are not isolated ones and have been encountered by various High Courts in India which is evident from the cases reported in several legal journals which disclose that anticipatory bail could not be rejected in absence of prima facie ingredients constituting an offence under the Act of 1989 since it could be rejected on the ground of maintainability only if the courts found that in fact there were materials for such accusation. A learned Single Judge of this Court was confronted with a situation in the case of Virender and Another v. State of Rajasthan vide S.B. Cr. Misc. Bail Application No. 406 of 1998, wherein the counsel for the applicant cited several authorities to be discussed hereinafter wherein anticipatory bail had been granted on the ground of absence of prima facie case under the Act of 1989, but an objection was raised in the aforesaid matter by the Govt. Advocate in regard to even maintainability of the application under Section 438 of the Code of Criminal Procedure, 1973 in view of Section 18 of the Act of 1989 which lays down as follows:

"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."

2. The courts while hearing anticipatory bail applications thus are often confronted with the consequential, legal and ethical dilemma as to whether it is at all competent to scrutinise and examine the matter to see whether any prima facie material is existing in the FIR to rope in a person in a case under the Act of 1989 so as to reject his application for grant of anticipatory bail on the ground of its maintainability or the courts would be justified in examining whether there is at all any accusation of commission of any offence under the Act of 1989.

3. The question therefore, which has been referred for consideration by this Full Bench is whether this Court while dealing with an application for anticipatory bail can scrutinize and examine the material to see if a prima facie case is made out constituting an offence under the Act of 1989 or whether it would be justified in rejecting the application merely because the case has been registered under the said Act or it is registered alongwith some other Sections of the IPC. Before it is elaborated further, we wish to make it clear at the outset before we proceed to answer this reference even at the risk of repetition that we are acutely conscious of Section 18 of the Act of 1989 which explicitly bars grant of anticipatory bail to any person who is even accused of an offence under the Act of 1989 and there would be no difficulty in rejecting their application once it is disclosed that the person can be said to bean accused of having committed an offence under the Act of 1989, since the clear bar of Section 18 would instantly operate against him. but the difficulty arises where the ingredients constituting an offence under the Act of 1989 is totally missing and the Court is confron

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IMPORTANT POINTApplication for anticipatory bail in an offence under SC and ST Act can be entertained only on ground of inapplicability of the Act due to the facts of the case which will have to be gathered only from F.I.R. and not beyond that.

Cases Referred (4)

IMPORTANT POINT
Application for anticipatory bail in an offence under SC and ST Act can be entertained only on ground of inapplicability of the Act due to the facts of the case which will have to be gathered only from F.I.R. and not beyond that.