After dismissal of petition for quashing of offence under STSC Atrocity Act, application u/s. 438 for anticipatory bail can not be considered

The appellants upon such filing of the complaint, raised an issue that the ingredients of the offences are prima facie not established and thereby initially, preferred a petition for quashing before the High Court, being Criminal Misc. Application No.6223 of 2017 and by raising multiple contentions about non-applicability of the provisions of the Act, a request was made to quash the complaint. But, after hearing both the sides at length, the said petition for quashing came to be withdrawn vide order dated 11.12.2019 and the interim order which was granted earlier on 6.3.2017 was vacated. Of-course for a period of one week, the said protection was extended.[Para No.3]

    It appears from the record that after disposal of the petition for quashing, the present appellants appeared to have rushed down for anticipatory bail under Section 438 of the Criminal Procedure Code ('the Code' for short) before learned District and Sessions Judge, (Special Atrocity Court) at Surat, which application came up for consideration before learned 7th Additional Sessions Judge, Surat, who by order dated 24.12.2019 was pleased to dismiss the same, which has given rise to present Criminal Appeal before this court [Para No.4]

    At this stage, even if the Court may consider that after disposal of the petition for quashing, application under Section 438 of the Code can be considered, but, in view of the fact that after exhausting meritorious contentions, the petition for quashing came to be disposed of and hence very little scope is left for the Court to consider Section 438 request of the appellants, since prima facie, it cannot be said that no offence is made out and further, it is not open for the bail Court to jump to a conclusion of this elementary stage that this complaint is nothing but abuse of process of law, particularly when the quashing petition is already disposed of. Therefore, with full effect, embargo created by the Statute by way of Section 18 and 18A of the Atrocity Act, the request for anticipatory bail cannot be considered.The intention of the legislature is not to be brushed aside as has been held by the Apex Court. Large number of decisions which are pressed into service, in the considered opinion of this Court, are of no avail to the appellants, particularly when in recent pronouncement of the judgment in the case of Prathvi Raj Chauhan (supra), the Court has expressly made it clear that liberal use of power to grant pre- arrest bail would defeat the intention of the Parliament. So, the Court would not like to exercise the discretion in view of this peculiar set of circumstance and having gone through the overall material on record, the appeal is found to be merit-less since facts are altogether different.[Para No.12]

Possibility of improvisation should be considered by Special Judge while deciding anticipatory bail in SC & ST Atrocity offences

When facts constituting atrocity are not mentioned in FIR but added in supplementary statement the it does not rule out possibility of improvisation.

   The important point that the learned Special Judge failed to consider is that, there is absolutely no mention in First Information Report of those facts which would attract offence under Atrocities Act. Those facts came to be mentioned in the supplementary statement. The possibility of improvisation should have been considered by the Special Judge. Definitely the ratio laid down in Prithviraj Chavan's case (Supra) is required to be considered and in the said case it has been observed thus, "10. Concerning the applicability of provisions of section 438 of Cr.P.C., it shall not apply tot he cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (I) shall not apply. We have clarified this aspect while deciding the review petitions "

  Therefore, if we brush aside those allegations under the Atrocities Act, what remains is only the offences under Indian Penal Code and Information Technology Act. Those remaining allegations do not require physical custody of the appellant for the purpose of investigation. Time and again this Court is observing the approach of the Special Judges under the Atrocities Act, who are dealing with the bail applications. They are not considering the facts of the case in proper manner and only on the apparent allegations and especially without considering the ratio laid down in Prithviraj Chavan's case (Supra), just dismissing the bail applications, especially the pre-arrest bail applications holding that, there is bar under Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atocities) Act, 1989. Time has again come to remind the Special Judges under the Atrocities Act that, they should consider the ratio laid down in Prithviraj Chavan's case (Supra) and other Judgments of Hon'ble Supreme Court and this Court in proper manner while dealing with the bail applications.[Para No.9]

Offence of atrocity can not be registered against a member of SC & ST

Can an offence of atrocity under SC ST (Prevention of atrocity) Act be registered against another person belonging to SC ST ? 

  

  The person which is making such allegations or utterances should not be a member of either Scheduled Caste or a Scheduled Tribe, as per T. Toranath & Anr. v. State of A.P. & Ors., reported in 1999 (1) Crimes 188 That means, the offence under these can be lodged against those persons only who are not being a member of a Scheduled Caste or a Scheduled Tribes.[Para No.12]