JUDGMENT :

Anoop Chitkara, J.

PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

1. 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, AIR 2020 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.P.C., 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