N B GUNGARAKOPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE learned single Judge of this Court Narayan J. vide order dated 18-1-2002 has referred the following three points to the Division Bench for adjudication :- (1) Whether Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter called "act" for short) is a bar for entertaining the petition under S. 438, Cr. P. C. ? (2) Whether the Courts entertaining the petitions under Section 438, Cr. P. C. can meticulously examine the material on record and attempt to find out a prima facie case under the provisions of the Act at this stage? and (3) Whether only the High Court has got jurisdiction to entertain the petition of this nature filed under Section 438, Cr. P. C. excluding the concurrent jurisdiction of the learned Sessions Judge ? the controversies with regard to the grant of anticipatory bail in relation to offences under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been an issue of serious debate despite the fact that Section 18 of the Act appears to place an embargo on the Courts that the provisions of Section 438 of the Code of Criminal Procedure cannot be invoked in relation to accusations for offences under the Act in question. Since there has been a hotly contested legal debate on the issue, it would be useful to reproduce the provisions of Section 18 of the Act which reads as follows :-

(2.) AFTER an elaborate consideration of the law, the learned single Judge observed that it was certainly open to the High Court to examine the allegations, to examine the facts, to examine the legal provisions and to decide as to whether the provisions of the Atrocities Act would be applicable or not and, in those of the situations wherein the Court came to the conclusion that the provisions have wrongly been invoked or quoted and that the case otherwise qualifies for the grant of anticipatory bail that it was open to the High Court to enlarge the accused on bail. The important aspect of this decision emanates from the fact that while the learned single Judge has essentially held that Section 18 does not prescribe a total and absolute bar to the entertainment of an anticipatory bail application, it has been provided therein that the Court is not precluded from examining the position in the event of such an application being preferred. The learned single Judge, however, has mandated, that the anticipatory bail application in this class of cases will have to be preferred only to the High Court. No reasons have been set out for this restriction and this is one of the principal grounds on which our colleagues Narayan J. who has referred the present issue to the Division Bench appears to have been under the impression that an anticipatory bail application under the provisions of the Cr. P. C. could be addressed either to the Court of Session or to the High Court and that consequently, if there is any reason why this class of applications in those cases alone should be restricted to the High Court that these would have to be specified. Obviously, Narayan, J. was of the opinion that the guidelines laid down in Chikkappa's case (2001 AIR - Kant HCR 3127) would apply to the consideration of all anticipatory bail applications under the Atrocities Act irrespective of whether they are addressed to the Court of Session or the High Court. In the referring order, the observations made by Narayan J. are more or less parallel to those of Bannurmath, J. in Chikkappa's case insofar as both the learned single Judges are of the view that there is no initial or threshold bar to the entertainment of an anticipatory bail application in cases under the Atrocities Act.

(3.) WE have heard the learned Counsel who represents the original petitioners Sri Jadhav and we have also heard the learned S. P. P. at considerable length. Mr. Jadhav commenced by submitting that the provisions of this Act are unjustifiably and unnecessarily invoked in proceedings that have nothing to do with the type of atrocities that have been set out in Section 3 of the Act. The Law Commission Reports which have been referred to by the learned S. P. P. , the statement of objections and reasons and the list of atrocities that are listed out in Section 3 of the Act are the foundational basis really for the law as laid down by the Supreme Court in Balothia's case (AIR 1995 SC 1198) wherein the Supreme Court has observed rather appropriately, that there are a class of offences that are not only anti-social but inhuman, that they are virtually a blot on civilised behaviour and that the reason why very special and stringent provisions have been made by the Legislature through the medium of this Act and consequently, that it is not discriminatory. The Supreme Court in essence has pointed out that these are a special class of offences directed against restricted sector of society which gets specially targeted , that the Government is deeply concerned about the fact that the existing laws have not been either sufficient adequate or deterrent when it comes to this class of offences and that consequently, special and very rigorous provisions were required. Obviously, drawing a parallel from some of the then existing special statutes like TADA, FERA, the N. D. Ps. Act and the like, the Supreme Court had occasion to observe that it would not be permissible to strike down Section 18 as being either arbitrary or discriminatory as far as the vires is concerned.