Back
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Anoop Chitkara, J.
Ami Chand - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Miscellaneous Petition (Main) No. 1116 of 2020, 1138 of 2020, 1139 of 2020, 1140 of 2020, 1141 of 2020, 1142 of 2020, 1143 of 2020, 1144 of 2020, 1184 of 2020, 1268 of 2020, 1269 of 2020, 1270 of 2020, 1301 of 2020, 1333 of 2020, 1444 of 2020, 1445 of 2020, 1563 of 2020, 1592 of 2020
Decided On : 14-09-2020
CRIMINAL - BAIL - SURRENDER - INTERIM BAIL - SC/ST ACT - SECTION 18 AND 18A - APPLICABILITY - HELD, the accused can apply for regular bail under Section 439 CrPC and simultaneously seek interim bail. The Court is under an obligation to accept the surrender and consider the prayer for interim bail. The interim bail can extend till the bail application's final disposal.
Fact of the Case:
The petitioners, accused of offenses under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SCSTPOA), sought permission to surrender before the Court and simultaneously sought release on ad-interim bail. The Court stayed their arrests subject to their joining the investigation.
Finding of the Court:
The Court held that there is no bar under Sections 18 and 18A of the SCSTPOA to the grant of interim bail to an accused who surrenders before the Court and applies for bail under Section 439 CrPC. The Court further held that the interim bail can extend till the bail application's final disposal.
Issues: 1. Whether an accused can apply for regular bail under Section 439 CrPC and simultaneously seek interim bail? 2. Whether the Court is under an obligation to accept the surrender and consider the prayer for interim bail? 3. Whether the interim bail can extend till the bail application's final disposal?
Ratio Decidendi: 1. The Court held that there is no bar under Sections 18 and 18A of the SCSTPOA to the grant of interim bail to an accused who surrenders before the Court and applies for bail under Section 439 CrPC. The Court relied on the Supreme Court judgment in Prathvi Raj v. Union of India, (2020) AIR SC 1036, which held that Sections 18 and 18A of the SCSTPOA do not apply to the grant of bail under Section 439 CrPC. 2. The Court held that the Court is under an obligation to accept the surrender and consider the prayer for interim bail. The Court relied on the Supreme Court judgment in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, which held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. 3. The Court held that the interim bail can extend till the bail application's final disposal. The Court relied on the Supreme Court judgment in Mukesh Kishanpuria v. State of West Bengal, (2010) 15 SCC 154, which held that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application.
Final Decision: The Court allowed the petitioners to surrender before the Court and granted them interim bail till the final disposal of their bail applications.
JUDGMENT
Anoop Chitkara, J. - All the petitions mentioned above raise interlinked propositions of law and are taken up together. The petitioners on being arraigned as accused of commission of offences punishable under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, after now called as 'SCSTPOA,' have come up under section 439 of the Code of Criminal Procedure, 1973, in short 'CrPC,' seeking permission to surrender before this Court, and simultaneously seeking release on ad-interim bail. Given the propositions of law involved, instead of accepting surrender, in the interim, the Court stayed the arrests subject to their joining the investigation.
Introduction:
2. Within 895 days of Independence, We, the people of India, abolished the millennia-old evil practice of untouchability through fundamental right guaranteed under Article 17 of India's Constitution by declaring that "Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with the law. Consequently, the Parliament enacted the Protection of Civil Rights Act, 1955. Later on, vide Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Parliament passed a more stringent law, wherein Sections 18 & 18-A state that nothing in Section 438 of the CrPC shall apply concerning any case involving the arrest of any person on an accusation of having committed an offence under this Act. In State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 , (Para 9), Supreme Court declared that S. 18 of SCSTPOA does not violate Article 21 of the Constitution of India. However, in Prathvi Raj v. Union of India, (2020) AIR SC 1036 , a three-judge bench of Supreme Court read down S. 18 by declaring as follows,
(10). Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.
3. There will be no issue whatsoever when the investigating agency has already arrested a person accused of committing an offence under SCSTPOA. Such a person is eligible to move for bail under S. 439 CrPC. The proposition of law that crops up is the person against whom there are accusations of committing an offence under SCSTPOA and is not yet arrested. Furthermore, if such an accused cannot or does not want to opt for anticipatory bail under S. 438 CrPC and instead, voluntarily appears before Sessions Court or High Court by applying S. 439 CrPC and surrendering for such Court's disposal, and after deemed acceptance of such surrender, seeking interim bail till the disposal of bail application.
General provisions of bails:
4. Chapter XXXIII of CrPC codifies the provisions for bail and bonds. Following S. 436 CrPC, the arresting officer shall release the accused on bail in all bailable offences. However, in all Non Bailable offences, only the concerned Courts have the jurisdiction to grant bail and not the arresting officer.
5. Anticipatory bail provides that when a person apprehends her likely arrest in a FIR in a Non-Bailable offence, she may apply to the Court of Sessions or High Court, under S. 438 CrPC. Such Court may direct that in the event of her arrest, she shall be released on bail by the arresting officer. However, suppose she stands arrested before getting anticipatory bail or opts to surrender and thus taken into custody. In that case, she cannot file a petition for anticipatory bail because such a stage gets over. In such an event, the only remedy available to her is to file a regular bail petition in the Sessions Court or the High Court under Section 439 CrPC. Furthermore, when the offence is triable by Magistrate, she can also file a bail petition under Section 437 CrPC.
6. S. 437 CrPC states that when any pe
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
