Pre-arrest Bail Likely to be Retained by Supreme Court in Cases Under SC/ST Act

New Delhi: The Supreme Court is expected to make it clear yet again that there is no absolute bar against grant of pre-arrest bail in a case relating to the SC/ST Act.

While the amended law clearly states that there will not be anticipatory bail in such cases, the top court is going to cite its 1995 verdict in State of MP Vs RK Bolothia to carve out the exception.

In the 1995 ruling, the Supreme Court held that the bar under Section 18 of the Act against grant of anticipatory bail will not be attracted where no prima facie case of atrocities against members of SC, ST communities is made out.

A three-judge bench, headed by Justice Arun Mishra, emphasised upon this judgment recently while recalling the court’s previous rulings on requirements of a preliminary inquiry and sanction of the arresting authority in complaints under the Act.

“The consistent view of this Court is that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that, case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above," the bench held in its October 1 judgment.

It further noted that "prima facie it appears that in the case of misuse of provisions, adequate safeguards are provided in the decision (Bolothia's case) mentioned above”.

This principle is likely to be adopted by the top court when it delivers its judgment on the validity of the 2018 amendments in the SC/ST Act, which were carried out by the Centre to nullify the court’s previous order of diluting the law.

The 2018 amendment stated that "the provisions of section 438 of the Code (anticipatory bail) shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court”.

This may very well include the direction in the 1995 judgment. Therefore, it is incumbent upon the Supreme Court to clarify that the amendment will not negate the 1995 judgment.

The bench will have to reiterate that the 2018 amendment will not impact the 1995 ruling and that there will not be an absolute bar and the pre-arrest bail can be given in cases where no prima facie offence under the SC/ST Act has been committed.

Another clarification that may come in the ruling is about applicability of the Constitution Bench ruling of Lalita Kumari in cases under the SC/ST Act as well.

In Lalita Kumari, the larger bench has held that the police can conduct preliminary investigation in "exceptional" circumstances and even in cases where FIRs have been lodged, it would not mean imminent arrest of accused concerned.

The three-judge bench is expected to give that leeway to police in SC/ST Act cases too, with certain caveats.