On Friday, August 20, the Supreme
Court ruled that the restriction on anticipatory bail under Section 18 of the
SC and ST (Prevention of Atrocities) Act, 1989, does not apply unless a prima
facie case under the Act is established against the accused.
The Court stated that if, after a
prima facie examination of the complaint and the supporting materials, the
elements required to constitute the offence are not present, then Section 18's
bar would not apply, and courts would be free to consider the request for
pre-arrest bail on its merits.
In such instances, the courts are
not entirely prohibited from granting pre-arrest bail, as highlighted by the
Court.
This observation came from a bench
consisting of Justice JB Pardiwala and Justice Manoj Misra, who granted
anticipatory bail to Shajan Skaria, editor of the Malayalam YouTube news
channel 'Marunadan Malayalee,' in a case where he allegedly made derogatory
remarks against MLA PV Sreenijin. Skaria had broadcasted a news story about the
alleged mismanagement of the Sports Hostel by Sreenijin in his role as Chairman
of the District Sports Council. The Supreme Court overturned the Kerala High
Court's June 2023 decision that had denied him anticipatory bail.
The Court opined that when alleged
incriminating material is available in the public domain due to being uploaded
on social media, courts should have the discretion to assess the evidence upon
which the complaint is based.
Section 18 of the Act specifies
that Section 438 of the CrPC, which allows for anticipatory bail, does not
apply to any case involving the arrest of a person accused under the Act.
Section 18-A clarifies that no
preliminary inquiry is required before registering an FIR against any person
under the Act, nor is approval necessary for the arrest of the accused. The
amendment also reaffirms that Section 438 of the CrPC does not apply to cases
under the Act, regardless of any court ruling or directive.
The Court referenced its judgment
in Prathvi Raj Chauhan v. Union of India, where it was held that if a
complaint does not establish a prima facie case under the Act, the restrictions
imposed by Sections 18 and 18-A(i) would not apply, allowing courts to grant
pre-arrest bail.
In Vilas Pandurang Pawar v.
State of Maharashtra, the Court observed that while Section 18 of the 1989
Act bars the use of Section 438 of the CrPC, courts must first confirm whether
a prima facie case under the Act has been established.
The Court clarified that the phrase
"arrest of any person" in Section 18 only restricts anticipatory bail
when a legitimate arrest can be made under Section 41, read with Section 60A of
the CrPC.
The Court stated that the
restriction under Section 18 of the 1989 Act applies only in cases where prima
facie evidence points to the commission of an offence under the Act. This is
because a prima facie case must be established to satisfy the pre-arrest
requirements outlined in Section 41 of the CrPC.
If the complaint or FIR does not
reveal the essential elements needed to constitute an offence under the Act,
then no prima facie case exists, the Court concluded.
The Court emphasized that this is
the only standard that should be applied when an accused seeks anticipatory
bail under the Act.
An accused may argue that the
anticipatory bail request should be considered even if the allegations indicate
an offence under the Act, claiming that the FIR or complaint is blatantly false
due to political or personal vendetta. However, such arguments can only be
addressed by the High Court under its inherent powers under Section 482 of the
CrPC or its extraordinary jurisdiction under Article 226 of the Constitution,
the Court held. If all the necessary elements to constitute the offence are
present in the complaint, anticipatory bail is not an option for the accused,
the Court stressed.
The Court further asserted that it
is the responsibility of the courts to determine the prima facie existence of a
case.
This duty is imposed on the courts
to ensure that no undue humiliation is caused to the accused. The courts should
not hesitate to conduct a preliminary inquiry to verify whether the facts
narrated in the complaint or FIR indeed disclose the essential ingredients
required to constitute an offence under the 1989 Act.
This role of the courts is
particularly significant when prima facie finding prevents the accused from
seeking anticipatory bail, which is a critical aspect of personal liberty, the
Court highlighted.
Additionally, the Court
acknowledged that with the rise of the internet and social media, similar cases
are likely to become more common. It noted that in this instance, the appellant
did not insult or humiliate the complainant in a public setting, which would
require witness statements to confirm. Instead, the incriminating material was
already available in the public domain through social media platforms.
