A.L.DAVE

1 Two Criminal Misc. Applications were preferred before the learned Single Judge seeking anticipatory bail invoking provisions of Section-438 of the Criminal Procedure Code, 1973, by applicants, who were facing charges for offences punishable under the provisions of the Scheduled Castes & Schedule Tribes (Prevention of Atrocities) Act, 1989, for short “the Atrocities Act”. Section-18 of the Atrocities Act provides that 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 the Atrocities Act. The applicants relied upon on the following decisions:

i. Jashubhai Majdan Gandhavi vs. State of Gujarat, 1992 (2) GLH 492;

ii. Dr. N.T. Desai vs. State of Gujarat, 1997 (2) GLR, 942; and

iii. Harivallabh Parikh vs. State of Gujarat, 1997 (1) GLR, 638.

Where a view was taken that there is no total prohibition on entertaining an application for anticipatory bail under Section- 438 of the Criminal Procedure Code in cases where there is accusation of offence punishable under the Atrocities Act.

1.1 The learned Single Judge of this Court in the case of Harivallabh Parikh vs. State of Gujarat (supra), has referred to the decision in the case of State of M.P. vs. Ram Krishna Balothia, (1995) 3 SCC 221. In that very decision, the Apex Court has ruled that the Section-18 of the Atrocities Act cannot be considered as violative of Article 21 of the Constitution of India. The learned Single Judge also referring to a Full Bench decision in the case of Jai Singh vs. Union of India, AIR 1993 Rajasthan 177, ultimately, found that the law laid down in the decision of Harivallabh Parikh (supra) is contrary to the Apex Court’s decision in the case of State of M.P. vs. Ram Krishna Balothia (supra) and, therefore, the learned Single Judge directed the Registry to place the matters before the Hon’ble Chief Justice for passing appropriate orders by referring following questions to Larger Bench.

(i) Whether provisions of Section-438 of the Code of Criminal Procedure,1973 can be invoked by a person, who is facing accusation of having committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in view of specific bar contained in Section-18 of the Act of 1989?

ii) Whether a court, exercising powers under Section 438 of the Code of Criminal Procedure, 1973, can grant anticipatory bail under Section-438 of the Code in favour of a person, who is facing accusation of having committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in view of a specific bar contained in Section-18 of the Act, 1989?

2 This Court is, therefore, required to address and answer the above referred questions in this Reference.

3. We have heard learned Advocate Mr. Shivang J. Shukla for the original applicants and learned Advocate General Mr. Kamal Trivedi appearing with Ms.Sangita Vishen, learned APP, for the State.

4 Learned Advocate Mr. Shukla submitted that individual liberty is held to be a constitutional right guaranteed under Article 21 of the Constitution of India and it has to be protected. When there are stringent provisions of law, there are more chances of accusations of breach of such law and accusations for offences punishable under the Atrocities Act can easily be made if the provisions contained under Section-18 of the said Act are strictly applied, it would affect the individual liberty in cases where the accusations are false and fabricated. Section-18 of the Atrocities Act, therefore, cannot be applied to all cases of accusation of offences punishable under the Atrocities Act. As a matter of rule, it has to be left to the discretion of the Court to examine whether the accusation is correct or not and it is found that the accusation is not correct, the accused will be permitted to take shelter under the umbrella of Section-438 of the Criminal Procedure Code, 1