VIRENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) While the validity of Sec. 18 of the Schedule Caste and Scheduled Tribes (Prevention of Attrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989') which bars entertainment of application of anticipatory bail on behalf of any person who is accused of having committed an offence under the Act of 1989 has been upheld by the Supreme Court in no uncertain terms in the matter of State of Madhya Pradesh v. Ramkrishna Baloiath reported in (1995)3 SCC 221 : (1995 Cri LJ 2076), the Courts at the district level as also the High Courts are often enough confronted with a variety of situations in cases where even plain reading of the First Information Report (FIR) does not disclose commission of any offence under the Act of 1989 and still it rejects applications for grant of anticipatory bail on the ground of its maintainability merely because the case has been registered under the Act of 1989. Such situtations are not isolated ones and have been encountered by various High Courts in India which is evident from the cases reported in several legal journals which disclose that anticipator bail could not be rejected in absence of prima face ingredients contituting an offence under the Act of 1989 since it could be rejected on the ground of maintainablility only if the Courts found that in fact there were materials for such accusation. A learned Single Judge of this Court was confronted with a situation in the case of Virender and Another v. State of Rajasthan vide S.B. Cr. Misc. Bail Application No. 406 of 1998, wherein the counsel for the applicant cited several authorities to be discussed hereinafter wherein anticipatory bail had been granted on the ground of absence of prima facie case under the Act of 1989, but an objection was raised in the aforesaid matter by the Govt. Advocate in regard to even maintainability of the application under Sec. 438 of the Code of Criminal Procedure, 1973 in view of Sec.18 of the Act of 1989 which lays down as follows :-

(2.) The Courts while hearing anticipatory bail applications thus are often confronted with the consequential, legal and ethical dilemma as to whether it is at all competent to scrutinise and examine the matter to see whether any prima facie material is existing in the FIR to rope in a person in a case under the Act of 1989 so as to reject his application for grant of anticipatory bail on the ground of its maintainability or the Courts would be justified in examining whether there is at all any accusation of commission of any offence under the Act of 1989.

(3.) The question, therefore, which has been referred for consideration by this Full Bench is whether this Court while dealing with an application for anticipatory bail can scrutinize and examine the material to see if a prima facies case is made out constituting an offence under the Act of 1989 or whether it would be justified in rejecting the application merely because the case has been registered under the said Act or it is registered alongwith some other Sections of the IPC. Before it is elaborated further, we wish to make it clear at the outset before we proceed to answer this reference even at the risk of repetition that we are acutely conscious of Sec.18 of the Act of 1989 which explicitly bars grant of anticipatory bail to any person who is even accused of an offence under the Act of 1989 and there would be no difficulty in rejecting their application once it is disclosed that the person can be said to be an accused of having committed an offence under the Act of 1989, since the clear bar of Sec. 18 would instantly operate against him, but the difficulty arises where the ingredients constituting an offence under the Act of 1989 is totally missing and the Court is confronted with the question as to whether the same would merit rejection merely due to the fact that the case has been registered under the S.C. S.T. Act of 1989 even though there is complete absence of the accusation regarding commission of any offence under the said Act, which is a condition precedent of Sec. 18 of the Act of 1989 itself.