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Flip Flop in the Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, 1989

After over 70 years of independence, members of the Scheduled Cast & Scheduled Tribes remain vulnerable. They are still subject to serious crimes, brutalities and humiliation. Since laws such as the Indian Penal Code, 1860, seemed ill equipped to deter crimes against members of the SC & ST community, the parliament enacted the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”). Notably, Section 18 of the Act, barred the application of Section 438 of the Code of Criminal Procedure, 1973 (hereinafter CrPC) in case of offences committed under the Act. This meant that there was no right of anticipatory bail available to an accused under the Act.

To prevent misuse of the Act, a two judge bench of the Supreme Court of India, in Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr. – Crl. Appeal No. 416 – pronounced on 20/03/2018, held that “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 that the allegations are not frivolous or motivated.” The court also 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.”

(see paragraph number 83 of the judgment).

The above direction is discretionary, since the word used therein is “may” and not “shall”.

The legislature, subsequently brought in an amendment to the Act in August 2018. Section 18A was inserted, which stated that there was no requirement of a preliminary enquiry before a FIR was to be registered. The amended section also states that “the provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.” This amendment was made precisely to overturn the Supreme Court decision of March 2018.

Later, the Union of India filed a review petition in the Supreme Court of India against the abovementioned judgment in Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr. On 1st October 2019, the Supreme Court of India in Union of India v State of Maharastra & Anr. Review Petition Crl. 228/2018 acknowledged the possibility of misuse of the law, and stated that an anticipatory bail in such a case cannot be granted under Section 438 of CrPC, it however can be taken care of under section 482 CrPC (inherent jurisdiction of the court). In the review petition, the court has also stated that there is no requirement of a preliminary enquiry before registration of FIR.

Interestingly now post 1st October 2019, anticipatory bails are again maintainable in offences under the Act, not under Section 438 CrPC but under inherent powers of High Court (Section 482 CrPC). Another point to note is that the Social Justice Empowerment Minister Sh. Thaawar Chand Gehlot, made a statement in February 2020 that no anticipatory bail shall be granted for offences under the Act. Such a statement has no legal value till an appropriate amendment is brought by parliament.

Law should be dynamic and must keep up with changing times. Times however do not change hastily. Such frequent changes in the law should be avoided and the will of the legislature must be respected. Repeated changes only create confusion and have the potential to vitiate the very purpose the Act is made for.

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