Calcutta HC: Court Not Denuded Of Power To Look Into Anticipatory Bail (438CrPC) Plea In Cases Under SC/ ST Act
The Calcutta High Court has held that despite the 2018 amendment providing against the applicability of Section 438 CrPC to cases under the SC/ST Act a court is not denuded of its power to look into the anticipatory bail petition of a person accused of having committed an offence under Section 3 of the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 amendment 2018, without indicating the nature of the offence.
A bench of Justice Sanjib Banerjee and Justice Surva Ghosh observed:
“The legal position is not that merely because an FIR refers to a provision under the Act or the complaint mentions Section 3 or Section 4 of the Act without the complaint making out any ingredients of an offence under either provision, the operation of Section 438 of the Code would stand automatically suspended. A petition under Section 438 of the Code may still be carried by the accused to the appropriate forum whereupon such forum will assess whether the accusation constitutes an offence under the said Act. Once such question is answered in the affirmative, the High Court or the court of sessions will proceed no further with the petition as the embargo under Section 18 of the Act would have fallen into place. But if the question is answered in the affirmative, the High Court or the court of sessions will proceed no further with the petition as the embargo under Section 18 of the Act would have fallen into place. But if the question is answered in the negative, Section 18 of the Act no longer remains a bar or stands in the way of the petition under Section 438 of the Code being considered on merits,”.
The bench referred to the Supreme Court judgment in Subhash Kashinath Mahajan v. State of Maharashtra which spoke about preliminary and time-bound inquiry and against mandatory arrest due to abuse of law.
“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: 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.”.
source: LiveLaw
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