INTRODUCTION T he controversy surrounding Sections 18 and 18A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the “SC/ ST Act” for brevity) can be traced back to the decision of the Supreme Court of India in the matter of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & Anr., (2018) 6 SCC 454, wherein the Court diluted the effectiveness of Section 18 of the SC/ST Act by holding that, inter alia, there would be no absolute bar against the grant of anticipatory bail, in relation to cases where offences have been registered under the SC/ST Act, in case if no prima facie case has been made out or the complainant is found to be prima facie mala fide upon judicial scrutiny.
The Kashinath Mahajan judgment also introduced, inter alia, certain ‘procedural safeguards’ in order to prevent the misuse of the SC/ST Act, in response to the allegedly rising number of false charges being filed under the SC/ST Act, which are provided below:
1. That arrest of a public servant can only be effectuated after approval of the appointing authority.
2. The arrest of a non-public servant can only be effectuated after approval by the Senior Superintendent of Police (SSP).
3. The arrest may be effectuated in an appropriate case, if considered necessary, and the reasons for the arrest will be recorded.
4. The reasons for arrest must be scrutinised by the Magistrate for permitting further detention.
5. Preliminary enquiry to be conducted by the Dy. S.P. level officers to find out whether the allegations make out a case under the SC/ST Act and that the allegations are not frivolous or motivated.
6. Any violation of the directions mentioned above will be actionable by way of disciplinary action as well as contempt.
However, immediately subsequent to the pronouncement of the judgment, the Parliament passed the 2018 Amendment Act, even before the Apex Court could hear the review petitions, which introduced Section 18A to the SC/ST Act, whereby the safeguards introduced vide the Kashinath Mahajan judgment were overturned in light of the mass violent protests that occurred nationwide in response to the Kashinath Mahajan judgment. On October 01, 2019, the Supreme Court of India recalled the directions it laid down in Kashinath Mahajan vide Union of India v. State of Maharashtra (2019), whereby the Court nullified the directions provided in the Kashinath Mahajan judgment as invalid. On February 10, 2020, the Supreme Court of India upheld the constitutionality of the 2018 Amendment, in the matter of Prathvi Raj Chauhan v. Union of India & Ors. (2020), while holding that the provision of anticipatory bail would not be completely barred by virtue of Sections 18 and 18A of the SC/ST Act if the complainant was unable to make out a prima facie case requiring the applicability of the provisions of the SC/ST Act. At the outset, the author would like to clarify that the author will not venture into the propriety or correctness of any of the judicial pronouncements and the instant article will focus only on the scope of applicability of Sections 18 and 18A of the SC/ST Act in the present status quo.
‘PRIMA FACIE CASE’ FOR THE APPLICATION OF THE SC/ST ACT
The application of the provisions of the SC/ST Act needs to satisfy the requirement of establishing a ‘prima facie case’ in order to invoke the application of the provisions of the SC/ST Act. This had been initially held in the Kashinath Mahajan judgment as well as the subsequent judicial pronouncements thereafter. The judicial pronouncements have laid down the need for the complainant to make out a prima facie case for the application of the SC/ST Act in order to ensure that abuse of the process of law does not occur by invoking the provisions of the SC/ST Act in a mechanical and arbitrary manner with the motivated intent to harass the accused unnecessarily. In the 51-page review judgment in the matter of Union of India v. State of Maharashtra (2019), the Court observed that Section 18 of the SC/ST Act has been enacted to provide an inherent deterrence and to further instil a sense of protection amongst the members of the Scheduled Castes and Scheduled Tribes. The Court, while nullifying the directions that had been laid down in Kashinath Mahajan which were supposed to prevent possible misuse of the provisions of the SC/ST Act, emphasised that the requirement of establishment of the prima facie need for applicability of the provisions of the SC/ST Act had existed prior to the Kashinath Mahajan judgment and that the directions enunciated in the Kashinath Mahajan judgment were only impractical, repugnant in law and contrary to the legislative intent. In Prathvi Raj Chauhan v. Union of India & Ors., (2020) 4 SCC 727, a three judge Bench of the Supreme Court of India upheld the constitutionality of the SC/ ST Act and further held that the application of the provisions of the SC/ST Act shall only apply after the prima facie satisfaction that an offence under the SC/ST Act has occurred, and consequently the absolute bar imposed on grant of anticipatory bail by virtue of Sections 18 and 18A would not apply in case the complainant fails to make a prima facie case for applicability of the provisions of the SC/ST Act. In support of this, the Court also placed reliance on an earlier decision of the Apex Court in the matter of State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3 SCC 221, wherein a purposive interpretation was provided to Section 18 of the SC/ST Act and the Court observed that adequate safeguards had been provided in respect of Section 18 in view of the aforesaid decision. The Court further observed that it had been the consistent view of the Apex Court that if prima facie case has not been made out attracting the provisions of the SC/ ST Act, then the bar on the anticipatory bail provided under Section 18 would not be attracted, and any possible misuse of the provision is intended to be taken care of by the aforesaid decision. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., the Court held that the offences enumerated under the SC/ST Act fall into a special and separate class of offences. Article 17 of the Constitution of India expressly deals with the abolition of ‘untouchability’ and forbids its practice in any form. It also provides that the enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law. Therefore, the offences enumerated under Section 3(1) arise out of the practice of ‘untouchability’. It is in this context that certain special provisions have been made in the SC/ST Act including Section 18 of the Act. The intent behind the exclusion of the applicability of Section 438 of the Code of Criminal Procedure (hereinafter referred to as “CrPC” for brevity) in respect of the offences under the SC/ST Act is to be viewed in the context of the prevailing social conditions, which gives rise to such offences, and the apprehension that the perpetrators of such crimes would likely threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders in case if the offenders are allowed to avail the benefit of anticipatory bail. The Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in the Parliament, explained the circumstances surrounding the enactment of the SC/ST Act and points to the evils in society which the statute aims to remedy. It graphically describes the social conditions which motivated the enactment of the SC/ST Act and it is further pointed out in the Statement of Objects and Reasons that when the members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, the vested interests would attempt to cow them down and terrorise them. It is under these unfortunate circumstances that the bar has been placed on Section 438 of the CrPC. The denial of anticipatory bail to offenders under the SC/ST Act cannot be considered as unreasonable or violative of Article 14 of the Constitution, as these offences form a distinct class by themselves and they cannot be compared with other general offences. The Court further observed that the justification in respect of the apprehension towards granting the benefit of anticipatory bail to those persons who are accused of committing an offence under the SC/ST Act, keeping in mind the historical background in relation to the practice of ‘untouchability’ and the social attitudes that leads to the commission of such offences, would likely result in the misuse of their liberty while enlarged on anticipatory bail to terrorise their victims and obstruct proper investigation. This view of the Court in relation to Section 18 of the SC/ST Act also finds support from a full bench decision of the Rajasthan High Court in the matter of Jai Singh v. Union of India (AIR 1993 Raj 177). In Vilas Pandurang Pawar and Anr. v. State of Maharashtra and Ors., (2012) 8 SCC 795, the Court held that the scope of Section 18 of the SC/ST Act read with Section 438 of the CrPC is such that it creates a specific bar in respect of grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ ST Act, then no court shall entertain an application for anticipatory bail, unless the court prima facie finds that such an offence is not made out. The Court further stated that at the stage of considering the application for anticipatory bail, the scope for appreciation of evidence and other material on record is limited. The Court observed that the bar on the grant of anticipatory bail has been imposed in order to protect the persons belonging to the Scheduled Castes and the Scheduled Tribes, and the provision in the Special Act cannot be easily brushed aside with the help of an elaborate discussion on the evidence. This view was reaffirmed in the matter of Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, wherein the Court held that, in the absence of any finding that an offence under the SC/ST has not been made out, the grant of anticipatory bail is contrary to the provisions of Section 18 of the SC/ST Act and the decision of the Apex Court in Vilas Pandurang Pawar case, and consequently set aside the impugned order of the High Court, which granted bail to the respondent in the matter therein. In Manju Devi v. Onkarjit Singh Ahluwalia & Ors., (2017) 13 SCC 439, the Supreme Court of India, while considering the applicability of Section 18 of the SC/ ST Act creating a bar for invoking Section 438 of the CrPC, observed that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process, and can only be taken into consideration at the time of the trial.
OFFENCE MUST BE IMPELLED BY THE CONSIDERATION THAT THE VICTIM IS A MEMBER OF A SC/ST
In a recent judgment by the Delhi High Court in the matter of Danish Khan @ Saahil v. State (Govt. of NCT of Delhi), Bail Application 3497/2020 (2021), the single judge Bench granted anticipatory bail to the applicant who was accused of commission of an offence under Section 3(2)(v) of the SC/ST Act. The Court held that the offence under Section 3(2)(v) of the SC/ST Act would be applicable only when the offence under the Indian Penal Code (hereinafter referred to as the “IPC” for brevity) should have been committed on a member of a Scheduled Caste or a Scheduled Tribe ‘particularly for the reason’ that such person is a member of a caste or tribe. It is not the purpose of Section 3(2)(v) of the SC/ST Act that ‘every offence’ under the IPC attracting imprisonment of 10 years or more would come within the meaning of Section 3(2)(v) merely because the offence under the IPC is committed against a person who happens to be a member of a Scheduled Caste or a Scheduled Tribe. The enhanced punishment provided under Section 3(2) (v) is attracted when the ‘reason for the commission of the offence’ under the IPC is the fact that the victim is a member of a Scheduled Caste or a Scheduled Tribe. It is a necessary element that the ‘offender’s action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe’. The Court explained that this rationale conforms with the Preamble of the SC/ST Act, which provides that, “…to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes…”.
The SC/ST Act is a special legislation enacted with the aim of providing stringent provisions for punishment, inter alia, of the offences under the IPC, which ‘targets’ persons belonging to a Scheduled Caste or a Scheduled Tribe by ‘reason’ of their caste status. A similar view was taken in the matter of Dinesh @ Buddha v. State of Rajasthan, (2006) 3 SCC 771, wherein the Supreme Court held that, in connection to Section 3(2) (v) of the SC/ST Act, the offence committed against a person must be “on the ground” that such a person is a member of a Scheduled Caste or a Scheduled Tribe. This view was also held by the Supreme Court of India in the matter of Khuman Singh v. The State of Madhya Pradesh, (2019) SCC Online SC 1104, wherein the Court held that unless an offence is committed “only on the ground” that the victim was a member of a Scheduled Caste, the offence under Section 3(2)(v) would not be made out.
CONCLUSION
In light of the above discussion, it is evident that the application of Sections 18 and 18A of the SC/ST Act would, therefore, require the fulfilment of the following two conditions in order to enable the bar on the application of Section 438 of the CrPC. Firstly, the complaint must make out a ‘prima facie’ case for the applicability of the SC/ST Act. Secondly, the offence must be committed ‘on the ground’ that the victim is a member of a Schedule Caste or a Scheduled Tribe. To further elaborate, the offence which is otherwise punishable under two different legislations, one of them which would be the SC/ST Act and the other a general law, the offence must be committed against the victim impelled with the consideration that such a person is a member of a Scheduled Caste or a Scheduled Tribe, and the offence cannot be brought under the domain of the SC/ST Act on the criterion that the victim merely happened to be a member of a Scheduled Caste or a Scheduled Tribe.
