SC-ST Act Accused Cannot Directly Approach HC For Anticipatory Bail, Must Approach Special Court First: P&H HC

Recently, Punjab and Haryana HC ruled that under SC-ST Act the accused cannot directly approach HC for anticipatory bail and must Approach Special Court First.

The bench of Justice Ashok Kumar Verma was dealing with the anticipatory bail filed under Section 438 of the Cr.P.C. for FIR registered under Section 3 (1) (r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 384 of the IPC.

In this case, the FIR has been registered against the petitioner on the complaint of Pardeep Kumar, Incharge, HSWC.

Pardeep Kumar has given a written complaint regarding being threatened by the petitioner saying caste-related words, and demanding money by causing mental humiliation.

The issue for consideration before the bench was:

Whether in the matter of grant of anticipatory bail to the petitioner alleged to have committed offences under the SC/ST Act can approach the Court directly by filing application under Section 438 of the Cr.P.C. for grant of anticipatory bail when the said statute provides an absolute prohibition on the applicability of the provisions of section 438 of Cr.P.C.?

The bench relied upon the case of Prathvi Raj Chauhan v. Union of India and Others where the SC observed that if the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created by section 18 and section 18A(1), shall not apply. The difficulty arises as to the forum where the “absence of prima facie case” can be agitated.

In view of the above case, the High Court stated that the judgment is coupled with the creation of Special Courts and the conferment of appellate jurisdiction on the High Court under sections 14 and 14A of the SC/ST Act.

The bench after referring to few judgments noted that there is also an explicit intention to exclude the jurisdiction of the High Court to grant anticipatory bail. The statute, therefore, in its express stipulation, clearly indicates that a bail application can be filed under the SC/ST Act only before the Special Court or the Exclusive Special Court. The original jurisdiction of the High Court under section 438 of Cr.P.C is therefore, expressly and by necessary intendment completely excluded.

High Court stated “once the original jurisdiction of the High Court for grant of bail is excluded, an application for anticipatory bail invoking the concurrent jurisdiction under section 438 Cr.P.C, which is also original in its nature and scope stands excluded. Consequently, the appellate jurisdiction alone can be exercised by the High Court, under section 14A. Similarly, the Special Courts alone have jurisdiction to consider the bail applications and not the Sessions Court. It is a different matter that the Sessions Courts in Kerala are notified as the Special Courts. Notifying the Sessions Courts as Special Courts cannot derogate from the requirement of the statute, that, only the Special Court can consider the matters including applications for bail arising under the SC/ST Act.”

The bench opined that the petitioner should have approached the Special Court for grant of anticipatory bail under Section 438 of the Cr.P.C. The order granting or rejecting the anticipatory bail under the provisions of SC/ST Act shall be amenable to the appellate jurisdiction of the High Court under Section 14A of the Act and not Section 438 Cr.P.C.

In view of the above, the High Court dismissed the petition for anticipatory bail.

Case Title: Vinod Bindal v. State of Haryana

Bench: Justice Ashok Kumar Verma

Case No.: CRM-M-57392-2022

Counsel for the petitioner: Mr.Vishal Garg Narwana

Counsel for the respondent: Mr. Munish Sharma

Courtesy : Lawtrend

Note: This news piece was originally published in lawtrend.in and used purely for non-profit/non-commercial purposes exclusively for Human Rights .