The exclusive jurisdiction of Special Courts under the SC/ST Act, the primacy of victim and witness rights, and the requirement to ascertain prima facie case for an offence under the Act before considering anticipatory bail.

JUDGMENT :

1. Heard learned counsels for the parties as well as perused the material available on record.

2. The applicants in the aforesaid anticipatory bail applications are alleged to have committed offences punishable under the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as ‘SC/ST Act’).

3. All the three anticipatory bail applications have been dismissed by the respective Special Judge SC/ST Act. The question of admissibility of jurisdiction of the aforesaid bails vide concurrent jurisdiction enshrined in Section 438 of Cr.P.C. has been agitated.

4. For the sake of verbiage, the contentions put by the learned counsels are concised below:

(i) As per the law laid down in Prathvi Raj Chauhan vs. Union of India & Others, (2020) 4 SCC 727, notwithstanding the bar under Sections 18 and 18-A of the Act, the application for anticipatory bail is maintainable.

(ii) The application for anticipatory bail under SC/ST Act can be filed under Section 438 Cr.P.C. in the High Court as well as Sessions Court.

5. It is argued on behalf of the applicants that as per the settled law of the Apex Court passed in case of Prathvi Raj Chauhan (supra), if the complaint does not make out a prima facie case for the applicability of the provisions of the SC/ST Act, 1989, the bar created by Sections 18 and 18A(i) shall not apply. The only caveat is that the power has to be used sparingly and is not to be used so as to convert the jurisdiction into that under Section 438 of the Code of Criminal Procedure.

6. It is further argued on behalf of the applicants that the Apex Court in the judgment of Siddharth vs. State of U.P. and Others, (2021) SCC OnLine SC 615, has opined that if the Investigating Officer does not believe that the accused will abscond of disobey summons, he/she is not required to be produced in custody. It was also opined that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an Accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made a routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.

7. The Apex Court in the matter of State of Andhra Pradesh through I.G., National Investigating Agency vs. Mohd. Hussain alias Saleem, (2014) 1 SCC 258 has held that if an application of bail or pre-arrest bail in the case instituted under the Act is made under the provisions prescribed in Chapter XXXIII of the Code in a Special Court or an exclusive Special Court and it is granted or refused, an appeal under newly inserted Section 14A(2) of the Act would lie before the High Court.

8. In case of State of Gujarat vs. Salimbhai Abdulgaffar Shaikh and Others, (2003) 8 SCC 50, it was provided that under the prevention of Terrorism Act, 2002, the exercise under Section 439 and 482 Cr.P.C. by the High Court was found illegal and the bail could be granted only under the special provision and an appeal under Section 34 of Prevention of Terrorism Act against the order of rejection or allowing a bail could only be filed in the High Court before a Double Bench.

9. In Section 21(4) of NIA Act, the expression used is "bail" without saying whether it is regular bail or anticipatory bail. S.437 to 439 of the Code state that a person accused of or suspected of the commission of offences of the type referred therein may be "released on