TIBREWAL, J. - (1.) SECTION 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred to as the 'atrocities Act') has been a subject matter of legal battle since the Act came into force: SECTION-18 of the Atrocities Act reads as under: "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 offerce under this Act. " SECTION 438 of the Code of Criminal Procedure provides for grant of anticipatory bail to persons apprehending their arrest. It provides inter alia, that when any person has reason to apprehend that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to a Court of Sessions for a direction that in the event of such arrest, he shall be released on bail.
(2.) THE question for consideration before me is whether the provisions of Sec. 18 of the Act providing denial of the right of anticipatory bail in respect of offences committed under the Act should be interpreted in the manner that it even debars the Court to have judicial scrutiny to the facts of the case to find out whether an offence under the Act was committed or not before declining pre-arrest bail to a person apprehending arrest? The Act of 1989 has been enacted in order to prevent commission of atrocities against members of Scheduled Castes and Scheduled Tribes and to provide for special Courts for the trial of offences under the said Act and also to provide for the relief and rehabilitation of victims of such offences. The Statement of Objects and Reasons accompanying the Act sets out the circumstances surrounding the enactment of the Act and points to the evil which the statute sought to remedy. In the Statement of Objects and Reasons it is stated: "despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. . . . . . When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self- respect or honour of their women, they become irritants for the dominant and the might. Occupation and cultivation of even the government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the "scheduled Tribes. . . . A special legislation to check and deter crimes against them committed by non-Scheduled Castes and Non-Scheduled Tribes, has, therefore, become necessary. " The above statement describes the social conditions compelling a legislation to prevent atrocities to the members of Scheduled Caste and Scheduled Tribes. In fact, the Parliament in its utmost wisdom has rightly evinced great concern and anxiety over the atrocities which are going on unabated against the members of Scheduled Castes and Scheduled Tribes and the need of a stringent legislation which could help save the situation by effectively providing the legal protection to them, who are weaker and down trodden segment of the society. There can be no doubt that the Legislature considered the crimes against the members of the Scheduled Caste and Scheduled Tribes to be of aggravated nature if committed by others who are no members of Scheduled Castes and Scheduled Tribes. The expression 'atrocity' has been defined in section-2 of the Act to mean an offence punishable under section-3 (1) of the Act. Section 3 (1) provides punishment for offences of atrocities to a member of Scheduled Caste or Scheduled Tribe by a person not being a member of Scheduled Caste or Scheduled Tribe. The effect of Section-3 of the Act is that if certain offences are committed by persons not being members of Scheduled Caste or Scheduled Tribes against persons of Scheduled Caste or Scheduled Tribes, they become more serious involving more severe punishment. Section-4 provides punishment of neglect of duties by public servants which are required to be performed by them under the Act. Section-7 makes a provision for forfeiture of property used for commission of the offence under the Act. Section-8 creates certain presumptions as to offences which are not otherwise available in common law, Section-10 empowers Special Courts to direct any person likely to commit any offence under Chapter- III 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 two years, as may be specified in the order. In the common law there is no such provision except in Sec. 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 and Sections-3, 4 and 5 of the Rajasthan (Control of Goondas) Act, 1975. Section 13 prescribes penalty for non-compliance of order made under Section-10. Section-14 lays down constitution of Special Courts to try offences under the Act. Section-15 deals with appointment of an Advocate as a Special Public Prosecutor for the Special Court. Then, Section-16 empowers the State Government to impose collective fine in certain cases. Section-20 over-rides other laws which are inconsistent to the provisions of the Act. A perusal of the various provisions of the Act, thus, makes it clear that there is a departure from the ordinary law, since the ordinary law was found to be inadequate and not sufficiently effective to deal with the atrocities committed against the members of the Scheduled Caste and Scheduled Tribes. The act is a penal statute and its provisions are drastic in nature. Certain acts have been made to construe as an offence which is not in the common law and in certain cases enhanced punishments have been provided. The Act contains some special provisions which in certain respects are harsh but are intended to achieve the object for which the Act was enacted. In the background of the aforesaid statutory provisions, this Court is required to consider the question involving interpretation of Section 18 of the Act. Section 18 of the Act came for consideration before a learned Single Judge (K. J. Vaidya J.) of Gujarat High Court in Pankat D. Suthar vs. State of Gujarat (1 ). The following question for determination was formulated by the learned Judge: "whether in cases wherein the accusation in the "complaint levelled against any person is to the effect that he has committed an offence punishable under Section 3 of the Scheduled Caste and Tribes (Prevention of Atrocities) Act, 1989 (for short "atrocities Act"), which on prima facie judicial scrutiny is found to be not free from doubt, can then in such cases the accused person be blindly and mechanically denied the benefit of anticipatory bail under Section 438 of the Criminal Procedure Code, 1973 (for short "the Code") by virtue of the provision contained in Section 18 of the Atrocities Act, merely because he has been so mischievously branded as an accused of having committed an offence under the Atrocities Act?" After considering the object behind the Act, particularly Sec. 18 and the various submissions made by the counsel for the parties, the learned Judge observed as under : - "the very same fundamental question arises in the facts and circumstances of this case also, viz. "whether any statute like the present Atrocities Act, especially enacted for the purpose of protecting weaker sections of the society hailing from S. C. and S. T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?" The answer to this question is undoubtedly and obviously "no". Under such circumstances, if the courts are tor apply such provisions of Sec. 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices, based on some words and trickly accusations in the complaint on mere assumptions without intelligently scrutinising and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint. etc. then it would be simply unwittingly are credulously playing in the hands of some scheming unscrupulous complainant in denying the justice. Virtually it would be tantamount to abdicating and relegating its judicial duty, function of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the Rules made there under are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of judicial consideration discretion" and therefore neither mere allegation made in the complaint by themselves nor bare denials by the accused can either automatically vest or divest the court from discharging its ultimate judicial function-duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision. "
(3.) IN Ramdayal and Ors. vs. State of M. P. (2), a learned Single Judge of M. P. High Court (Sachinder Dwivedi J.) also considered this aspect and it was held that a judicial scrutiny of the facts of the case was permissible to find out that the person is involved in the offence or connected with the offence under the Act as to attract the rigour of Sec. 18 of the Act. It was observed as under: - "on the allegation that a particular person has committed an offence or is an accused under the Act or if he has been so described by the Police as an accused, the Court would not without examining the merits of the accusation, dismiss his application, where there is no material to reasonably raise a suspicion of the commission of an offence, it cannot be said that there is an accusation within the meaning of section 18 of the Act; and the maintainability of application under Section 438, Cr. P. C. cannot be challenged. In Amar Singh &. Ors. vs. State of Raj. (3), N. C. Sharma, J. (as he then was) granted anticipatory bail in a case registered under Section-3 (1) (v) of the Act after judicial scrutiny and finding that prima-facie no offence under Sec. 3 (1) (v) of the Act was made out. In Satya Narain and Ors. vs. The State of Raj. . (4), G. S. Singhvi, J. (as he then was) of this Court also did not agree with the view that anticipatory bail cannot be granted in view of Section -18 of the Act since the case was registered under Sec. 3 of the Act. It was observed:- "once it is found that the person is accused of having committed an offence under the Act, 1989 the embargo imposed under Section 18 of the Act, 1989 against the grant of anticipatory bail would come into play. However before the provision of Section 18 of the 1989 Act is made applicable the court is bound to consider as to whether the applicant is an accused of having committed an offence under the 1989 Act. Since the provisions contained in Section 18 is an exception carved out from general provisions of anticipatory bail contained in Section 438, Cr. P. C. it has to be construed strictly. Once it is found that an offence specified under the 1989 Act is committed irrespective of the gravity of the offence anticipatory bail has to be declined. But the Court has to apply its mind to the facts of the case and record a finding that the applicant has been an accused of having committed an offence under the 1989 Act. " ;