TIBRIWAL, J. - (1.) BEFORE deciding this bail application on merits, it has become necessary to decide the preliminary objection raised by the learned Public Prosecutor, that the application for grant of pre- arrest bail u/s 438 Cr. P. C. is not maintainable in view of specific bar contained u/s. 18 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred to as 'the Act' ). As the question was of vital importance, a general notice was given to the learned members of the bar inviting their assistance to submit their views on this legal point. Section 18 of the Act reads as follows: "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. "
(2.) THE argument of the learned Public Prosecutor is that the provisions contained in the aforesaid section are clear and unambiguous and there is total bar to apply the provisions of section 438 of the Code of Criminal Procedure relating to pre- arrest bail, ordinarily called "anticipatory bail". Section 438 Cr. P. C. provides for grant of bail to person/persons apprehending arrest and this power has been given to the High Court or the Court of Sessions. It is made clear at the very outset that I am not examining the constitutional validity of the various provisions contained in the Act including that of section 18 of the Act. Presently, I am only concerned to interpret section 18 of the Act, as to whether, it creats a complete bar to entertain any application for grant of pre-arrest bail u/s. 438 Cr. P. C. of the court has power of judicial scrutiny before declining the benefit of pre-arrest bail to a person apprehending his arrest to see whether the said person has committed an offence under the Act and if this judicial scutury is permissible then to what extent? In order to appreciate the rival submissions made by the learned counsel about the impact of section 18 of the Act, it is necessary to examine the scheme of the Act. From a bare reading of the entire scheme of the Act, it is manifest clear that the Act has been made to prevent the commission of the offences of Atrocities against the members of the Scheduled Castes & Scheduled Tribes and to provide for special courts for the trial of such offences. The Act came into force w. e. f. 30. 01. 1990. Section 3 of the Act provides punishments for offence of Atrocities. The word 'atrocity' means an offence punishable u/s 3 of Act. Section 4 of the Act provides punishment for neglect of duties by public servant required to be performed by him under that Act. The effect of section 3 of the present Act. is that if certain acts are committed by persons, who are not members of the Scheduled Castes and Scheduled Tribes, against persons who are members of the Scheduled Castes and Scheduled Tribes, will be an offence or more serious offence involving more severe punishments, which otherwise the said acts do not constitute an offence or if they constitute an offence then punishment is not so severe in the common law. Section 7 of the Act provides for forfeiture of property which has been used for the commission of the offences. Then section 8 creates certain presumptions as to offences which are not otherwise available in the common law. Then section 10 gives power to special courts to direct any person, likely to commit any offence under Chapter II of the Act, to remove himself beyond the limits of such area, by such route and within such time as may be specified in the order and not to return to that area from which he was directed to remove himself for such period not exceeding to two years as may be specified in the order, while in the common law, there is no such provision except in section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 and sections 3,4, and 5 of the Rajasthan Control of Gundas Act, 1975. Then section 13 prescribes the penalty for non-compliance with the order made under section 10 of the Act. Section 14 provides for constitution of special courts to try the offences under the Act. Section 15 deals with appointment of an advocate as Special Public Prosecutor for the Special Courts. Then Section 16 prescribes the powers of the State Government to impose collective fine in certain cases. Then section 18 of the Act provides that the provisions of section 438 Cr. P. C. shall not apply to persons who have committed the offence under the Act. Section 20 of the Act overrides other laws which are inconsistent to the provisions under the Act. Thus, a perusal of the aforesaid provisions make it clear that they are departure from the ordinary law, since the said law was found to be inadequate and not sufficiently effective to deal with the atrocities committed against the persons of the Scheduled Castes and Scheduled Tribes. The Act is a penal statute and its provisions are drastic in nature. Certain Acts have been made to construe an offence which is not in the common law and in certain cases, enhanced punishments have been provided. Then some presumptions against the accused are permissible and special courts have been constituted for the trial of the offences committed under the Act. There can, therefore, be no doubt that the legislature considered the crimes against the members of the Scheduled Castes and Scheduled Tribes to be of the aggravated nature, if committed by the members other than of Scheduled Castes and Scheduled Tribes. Hence, special provisions which in certain respects are harsh have been made providing for special forum for the speedy disposal of such cases, as well putting restrictions in respect of the release of the offenders on bail with suitable changes in the procedure with a view of achieving its object.
(3.) IT has been contended on behalf of the petitioner that when statute provides enhanced punishment as compared to the punishment prescribed for similar offences under the ordinary penal laws of the country and also for constitution of special court then higher responsibility and duty is cast on the court/judge to be sure that there exists a prima-facie case involving a person in the commission of the offence under the Act. IT is submitted by them that the provisions of section 18 should not be construed in a manner, so as to create a complete bar even to entertain an application u/s. 438 Cr. P. C. without application of mind on the facts as to whether the accusations made against a person do constitute an offence under the Act or not. It was also contended that the intention of the legislature cannot be to deny the benefit of pre-arrest bail to those persons who did not commit any offence under the Act, but the case has been registered or got registered under the Act simply to deny the benefit of pre arrest bail and to humiliate them by getting arrest. It is submitted that it will be violative of Article 21 of the Constitution of India if a person is allowed to be arrested in a case, which, if put to judicial scrutiny, does not involve in the commission of an offence under the Act. In this connection, reliance has been placed on Ayubkhan Kalandar Khan Pathan vs. State of Gujarat & others (l ). A reference has already been made to the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (2) to get the support that section 438 Cr. P. C. is meant to meet the challenge of Article 21 of the Constitution and that the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. The submission is, that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of section 438 Cr. P. C. According to them, the beneficient provision contained in section 438 Cr. P. C. must be saved, not jettisoned. On the other hand the learned Public Prosecutor, who is assisted by Mr. R. K. Yadav and Mr. Bagdi, submits that our Constitution provides for establishment of a socialist, secular and democratic order. It also provides equality of opportunity for education and employment. The entire object of our Constitution is to ensure that the weaker sections of the society, particularly the Scheduled Casts and Scheduled Tribes, should be made prepared for meaningful participation in the new system to acquire an equal position in the national life. Though a variety of measures have been taken from the very beginning in terms of various constitutional provisions including specific safeguards, but the achievement did not measure upto the great expectations of the founding father. Inspite of several safeguards, the land to the tiller remains a dream for the countless millions belonging to the Scheduled Castes and Scheduled Tribes and even their tenure has not been effectively protected. It has been argued that inspite of the fact that 40 years have passed since the Constitution came into force, the socio-economic conditions of the persons of the Scheduled Castes and Scheduled Tribes remained the same. They are denied number of civil rights and are subjected to various offences, humiliation and harassment. Serious crimes are committed against them for various historical socio-economic reasons and they are being deprived of their life and property by the members of the upper class. It was further argued that when the members of Scheduled Castes and Scheduled Tribes try to preserve their self respect and honour, the members of the upper class get irritent for the dominance. Their occupation and cultivation over the land, even allotted by the Government, is resented and all sort of atrocities are committed against them to oust them from their land to humiliate them in the public. They are not even allowed to exercise the right of franchise. According to them, the existing laws, like the Protection of Civil Rights Act, 1955 and normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes, as such, a special legislation to check and deter crimes against them, committed by non- Scheduled Castes and Scheduled Tribes has, therefore, become necessary. According to them, the interpretation of section 18 should be made in such a way so that purpose and object of the Act is not frustrated. Their contention is that section 18 of the Act creates a complete bar and the court cannot even entertain any application for grant of pre-arrest bail u/s. 438 Cr. P. C. if the case is registered by the police under the Act or subsequently, it is found that the offence under the Act has been committed. I have given my due consideration to the weighty submissions made by both the sides. It is true that the Act has been enacted with a special object. It is also a fact that atrocities on the members of the Scheduled Castes and Scheduled Tribes could not be checked under the existing laws and the normal provisions of the Indian Penal Code. It is also correct that the members of Scheduled Castes and Scheduled Tribes are being subjeced to various atrocities, like deprivation of land and property, denial of right of franchise, rape on their women folk etc. Our goal to socialistic, secular and democratic order is still a dream to be achieved and this dream cannot be achieved till deterent steps are taken to provide protection to the members of the Scheduled Castes and Scheduled Tribes, so that they may live a life of honour, claim equality in employment and education and exercise their right of vote freely. ;