Court held that anticipatory bail under Section 438 Cr.P.C. is available for offences under the SC/ST Act if the complaint fails to make out a prima facie case for its application, rendering the statutory bar inapplicable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.F.R.
Court No. - 48
Case :- CRIMINAL MISC. WRIT PETITION No. - 16343 of 2020 Petitioner :- Gopal Mishra Respondent :- State Of U P And 2 Others Counsel for Petitioner :- P.K. Singh Counsel for Respondent :- G.A.
Hon'ble Surya Prakash Kesarwani,J. Hon'ble Shamim Ahmed,J.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 not to arrest the petitioner in pursuance of the impugned First information Report dated 11.10.2020 registered as Case Crime No. 0476 of 2020, under Sections 34, 452, 354, 323, 504, 506 I.P.C. and Section 3 (1) (dha) of SC/ST Act, 1989, Police Station Shivli, District Ramabai Nagar (Annexure No.1 to the writ petition.)
Discussion and Finding
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also contains similar provisions, which exclude the application of Section 438 of Cr. PC. Sections 18 and 18-A provide as follows:-
“ 18. Section 438 of the Code not to apply to persons committing an offence under the Act.— Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
18-A. No enquiry or approval required .—(1) For the purposes of this Act—(a) preliminary enquiry shall not be required for registration of a first information report against any person; or(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.(2)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.”
3(1) (ध) लोक द ृ ष ्टि � मे ं आने वाले ष ्टि कसी स ् थान पर जात ि � क नाम से े े अनुसूत ि �� जात ि � या अनुसूत ि �� जनजात ि � क ष े ्टि कसी सदस ् य को गाली गलौज े करेगा।
- Section 18 explicitly excludes the application of Section 438 of the CrPC in relation to any case involving the arrest of any person on an
2
accusation of having committed an offence under the Act. Sub-section (2) of Section 18-A specifically excludes the application of the provisions of Section 438 of the CrPC, notwithstanding any judgment, order or direction of a court. The provisions of Section 18 and 18A have been interpreted by a three Judge Bench of this Court Crl.A./202012 in Prathvi Raj Chauhan v.Union of India and Others(2020) 4 SCC 727(“Chauhan”). Justice Arun Mishra speaking for himself and Justice Vineet Saran, while construing these provisions, observed that:
“11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.”
“32.As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a prearrest bail.”
3
4
2 issues framed by the court
Whether Sections 18 and 18-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 bar the grant of anticipatory bail under Section 438 Cr.P.C. if the FIR does not make out
Whether the petitioner is entitled to anticipatory bail as no prima facie case under the SC/ST Act has been made out in the impugned FIR.
Colour shows how this judgement treated each authority
Rahna Jalal Versus State of Kerala and anotherRelied on¶19
Rahna Jalal Versus State of Kerala and another (Criminal Appeal No. 883) of 2020
Prathvi Raj Chauhan v. Union of India and OthersRelied on¶22
Prathvi Raj Chauhan v. Union of India and Others (2020) 4 SCC 727 · Who else cites this
3 provisions across 2 enactments
Gopal Mishra
State Of U P
Respondent No. 2
Respondent No. 3
Surya Prakash Kesarwani
Shamim Ahmed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
