HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION No.9899 of 2022
ORDER:
1. Seeking pre-arrest bail, the present Criminal Petition is filed by the petitioners, who are arrayed as Accused Nos.1 to 3 in Crime No.92 of 2022 of Motakondur Police Station, Rachakonda Commissionerate.
2. Making his submission, learned counsel for the petitioners states that the petitioners have not committed any offences whatsoever, much less, the offences attracting the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Learned counsel states that the 1st petitioner sustained injuries and his son i.e. the 3rd petitioner, gave a complaint to police basing on which a case was registered. Learned counsel states that after three months, as an afterthought, the 3rd respondent gave complaint to police. Learned counsel, by stating so, seeks for anticipatory bail.
3. On the other hand, the submission of the learned Additional Public Prosecutor, who is representing 2 Dr.CSL,J Crl.P.No.9899 of 2022 Respondent Nos.1 & 2, states that the case is still under investigation. Learned counsel for the 3rd respondent/ de facto complainant submits that as the 3rd respondent was abused in the name of her caste and was beaten and threatened, a complaint was given to police. Learned counsel also states that on the same day of incident, a complaint was given. But the case was registered belatedly.
4. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is as follows:-
"18. 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."
5. Therefore, when an accusation is made on having committed an offence punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Section 438 Cr.P.C. does not apply. 3
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6. Making a submission that even in those cases the said provision of law applies, learned counsel for the petitioners relied upon the decision of the Hon'ble Apex Court in the case between PRATHVI RAJ CHAUHAN Vs. UNION OF INDIA AND OTHERS1. In the said case, a Writ Petition was filed questioning the constitutional validity of Section 18-A which was inserted by way of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018. While dealing with the said issue, dealing with the right of the accused to claim anticipatory bail where an allegation is made that they have committed offences punishable under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the Court at Paras 32 & 33 of the order held as follows:-
"32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the Court has the inherent power to direct a pre-arrest bail.1
(2020) 4 Supreme Court Cases 727 4 Dr.CSL,J Crl.P.No.9899 of 2022
33. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."
7. By the above decision, it is clear that though such a power can be exercised, the power shall not be used so as to convert the jurisdiction into Section 438 Cr.P.C. and that it has to be used sparingly and in very exceptional cases, that too, where no prima facie offence is made out. In the case on hand, this Court does not find any such exceptional circumstances. Therefore, this Court is of the view that the request sought for, cannot be granted. 5
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8. Resultantly, the Criminal Petition is dismissed.
________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA Date: 15.12.2022 ysk 6 Dr.CSL,J Crl.P.No.9899 of 2022 HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA CRIMINAL PETITION No.9899 of 2022 Date: 15.12.2022 ysk