Section 18 of Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act, reads as follows: 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.”
One Ram Krishna Balothia challenged the constitutional validity of this provision before the Madhya Pradesh High Court, on the ground that it violates Articles 14 and 21 of the Constitution of India. The contention raised was mainly (1) while Section 438 is available for graver offences under the Penal Code, it is not available for even “minor offences” under the SC-ST Act (2) Section 438 CrPC is an integral part of Article 21.
The High Court agreed with these contentions and declared the Section 18 SC-ST Act unconstitutional. But, allowing the appeal filed by the State, the Supreme Court (in State Of M.P. & Anr vs Ram Krishna Balothia AIR 1995 SC 1198 : 1995 (3) SCC 221) observed that the anticipatory bail is only a statutory right conferred long after the coming into force of the Constitution and it cannot be considered as an essential ingredient of Article 21. Its non-application to a certain special category of offences cannot be considered as violative of Article 21, it was held while setting aside the High Court judgment. The Court also agreed with the view of Full Bench of the Rajasthan High Court in Jai Singh v. Union of India AIR 1993 Rajasthan 117.
In Vilas Pandurang Pawar and Anr v. State of Maharashtra (2012) 8 SCC 795 and Shakuntla Devi v. Baljinder Singh (2014) 15 SCC 521 it was held that when an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out.
In Subhash Kashinath Mahajan v. The State of Maharashtra, (2018) 6 SCC 454, the Supreme Court clarified that 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. Though the Apex Court in Union of India vs State of Maharashtra [ AIR 2019 SC 4917 : (2020) 4 SCC 761] allowed the review petition filed by Union of India against this judgment and recalled certain directives, it reiterated 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.
The Parliament, as a reaction to the judgment in Subhash Kashinath Mahajan, passed an amendment to introduce Section 18A in SC-ST Act and the same read as follows:
(i) For the purpose of this Act,- (a) preliminary enquiry shall 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
(ii) 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.
While rejecting the challenge against these provisions, the Apex Court in Prathvi Raj Chauhan vs. Union of India (2020) 4 SCC 727 again observed thus: “Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.”