ORDER :

PRAYER: For Anticipatory bail in Crime No. of 2019 on the file of the respondent police.

The Court made the following order :-

The question that arises for my consideration is whether anticipatory bail can be granted to the petitioners herein when they stand accused of having intentionally insulted a member of a scheduled caste with intent to humiliate her within public view.

2. I place on record my gratitude to Shri. M. Ajmal Khan, learned Senior Counsel, for assisting this Court as amicus curiae.

3. The Scheduled Castes and the Schedules Tribes (Prevention of Atrocities Act), 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Schedules Tribes. Section 18 of the Act excluded the applicability of Section 438 of Criminal Procedure Code right from the inception. Its constitutionality was upheld in (1995) 3 SCC 221 (State of M.P. and Ors. vs. Ram Krishna Balothia). However, the Bar found an ingenious way of overcoming the situation. Petitions under Section 482 of Cr.PC were filed in such cases with the prayer to permit the accused to surrender before the jurisdictional court and to mandate the court concerned to accept the surrender and dispose of the bail petition on the same day. Unless serious offences under the Penal Code were involved, the usual practice was to allow the petitions as prayed for. Of course, some Judges held that such petitions were not maintainable. Some used to give directions that the bail petitions were to be considered expeditiously. They avoided the use of the words “on the same day”.

4. Such a camouflaging became unnecessary following the definite ruling of the Hon'ble Supreme Court in the decision reported in (2018) 6 SCC 454 (Dr. Subhash Kashinath Mahajan vs. State of Maharashtra and another). The Hon'ble Supreme Court held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. But then, the Bar had to revert to the old ways following the enactment of Central Act No.27 of 2018 introducing Section 18 A which reiterated that the provisions of Section 438 of the Code shall not apply to a case under the Atrocities Act, notwithstanding any judgment or order or direction of any court.

5. The Union of India not wanting to take chances also filed Review Petition (Crl) No.228 of 2018. The same was disposed of vide judgment dated 01.10.2019 by a three Judges Bench. On a careful reading of the judgement dated 01.10.2019, one can note that the essence and soul of Dr. Subhash Kashinath Mahajan judgment has not only survived but remains intact.

6. Let us go back to Dr. Subhash Kashinath Mahajan decision. The conclusions are set out in Paragraph 79.1 to 79.6 (as reported in SCC). They read as under :

“79.1. Proceedings in the present case are clear abuse of process of Court and are quashed.

79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny, the complaint is found to be prima facie mala fide. We approve the view taken an approach of the Gujarat High Court in Pankaj D. Suthar and N.T. Desai and clarify the Judgments of this Court in Balothia and Manju Devi.

79.3. In view of acknowledged abused of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority an of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinize by the Magistrate for permitting further detention.

79.4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and the allegations are not frivolous or motivated.

79.5. An