Sanjib Banerjee, J. - (1.) In the light of the manner in which the larger legal issues raised here are proposed to be dealt with, the matter falls within a narrow compass. One of the charges against the petitioner seeking anticipatory bail is under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Despite the recent amendment to such Act of 1989 and the introduction of Section 18-A by such amendment with effect from August 20, 2018, the petitioner maintains that not only is the petition under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail maintainable, but the merits of the matter need also to be gone into as in any other case under such provision of the Code.
(2.) Section 18 of the said Act fell for consideration of the Supreme Court yet again in a recent judgment reported at (Subhash Kashinath Mahajan v. State of Maharashtra, 2018 6 SCC 454) where, upon noticing several previous Supreme Court judgments on such provision, it was concluded as follows at paragraph 79 of the report: "79. Our conclusions are as follows: 79.1. Proceedings in the present case are clear abuse of process of court and are quashed. 79.2. 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. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar and N.T. Desai and clarify the judgments of this Court in Balothia and Manju Devi. 79.3. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention. 79.4. 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. 79.5. Any violation of Directions 79.3 and 79.4 will be actionable by way of disciplinary action as well as contempt. 79.6. The above directions are prospective."
(3.) The directions contained in such order were issued in the context of the finding rendered therein that cases under the said Act "also fall in exceptional category where preliminary inquiry must be held inquiry must be time-bound arrest is not a must ". The judgment in Subhash Kashinath Mahajan was rendered upon interpreting Section 18 of the said Act in the light of the constitutional safeguards pertaining to liberty and freedom and despite Section 18 of the said Act being worded thus: "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.";