While laying down the parameters for anticipatory bail under the SC/ST Act, the Punjab and Haryana High Court in a most learned, logical, laudable, landmark and latest judgment titled Vinod Bindal vs State of Haryana in CRM-M-57392-2022 that was pronounced as recently as on December 8, 2022 has made it indubitably clear that an accused under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is first required to approach the Special Court for anticipatory bail as the High Court’s original jurisdiction under Section 438 CrPC in such cases stands excluded. It is quite palpable from the Court’s observations that an accused under the SC/ST Act must as a rule first approach the Special Court and refrain from directly moving the High Court without first approaching the Special Court! It must be noted that while dismissing an anticipatory bail plea of an accused who had directly approached the High Court, Hon’ble Mr Justice Ashok Kumar Verma said clearly that the order granting or rejecting the anticipatory bail under the provisions of SC/ST Act shall be amenable to the appellate jurisdiction under Section 14A of the Act and not Section 438 CrPC.
At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Ashok Kumar Verma of Punjab and Haryana High Court sets the ball rolling by first and foremost putting forth in para 1 that, “Notice of motion. On the asking of this Court, Mr. Munish Sharma, AAG, Haryana accepts notice of motion.”
To put things in perspective, the Bench envisages in para 2 that, “The petitioner in the aforesaid anticipatory bail application filed under Section 438 of the Cr.P.C. is alleged to have committed offences punishable under Section 3 (1) (r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC/ST Act’) and Section 384 of the IPC in case FIR No.948 dated 19.10.2022 registered at Police Station Assandh, District Karnal.”
Do note, the Bench then observes in para 3 that, “The moot point which requires consideration by this Court in the present case is whether in the matter of grant of anticipatory bail to the petitioner alleged to have committed offences under the SC/ST Act can approach this Court directly by filing application under Section 438 of the Cr.P.C. for grant of anticipatory bail when the said statute provides an absolute prohibition on the applicability of the provisions of section 438 of Cr.P.C.”
As we see, the Bench then notes in para 4 that, “The present FIR has been registered by the police on the statement of Mr. Dinesh Kumar, Secretary and Executive Officer, Market Committee Assandh, Karnal against the petitioner on the complaint of Pardeep Kumar, Incharge, HSWC. Said Pardeep Kumar has given a written complaint in the office of aforesaid Mr.Dinesh Kumar regarding being threatened by the petitioner saying caste related words, demanding money by causing mental humiliation.”
As it turned out, the Bench then points out in para 5 that, “Learned counsel for the petitioner, inter alia, submits that the petitioner who is a journalist in Punjab Kesri, while doing his official duty had published some news items regarding the inaction of the police and the embezzlements being committed in the Market Committee, Assandh, due to which the complainant has falsely implicated the petitioner. As per the contents of the FIR, offence under Sections 384 of the IPC and Section 3 (1) (r) of the SC/ST Act is not made out against the petitioner. He further submits that the petitioner can directly approach this Court without approaching any other court for grant of anticipatory bail under Section 438 of the Cr.P.C. In support of his contention, learned counsel relies on Onkar Nath Agrawal and others vs. State, 1976 Criminal Law Journal, 1142 (FB) (Allahabad), Mohan Lal and others etc. vs. Prem Chand and others etc., AIR 1980 (Himachal Pradesh) 36 (FB), Balan vs. State of Kerala, 2003 (4) RCR (Criminal) 733 (DB), Ranjit Singh Virk vs. State of Punjab, 1997 (3) RCR (Criminal), 207 etc.”
Most notably, the Bench then minces no words to hold indubitably in para 20 that, “On analysis of the provisions of the said Act, it is crystal clear that only the Courts constituted under Section 14 of the Act can have jurisdiction to entertain an application for bail and the power of the Court of Sessions and of the High Court in its original criminal jurisdiction to entertain an application under Section 438 or Section 439 of the Cr.P.C had been impliedly taken away by Section 14A of the said Act. An appeal will lie only against an order of the Special Court or the Exclusive Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. The existence of an order of the Special Court was held to be a sine qua non for approaching the High Court.”
Be it noted, the Bench then notes in para 22 that, “Under SC/ST Act, there is special procedure and Special Courts/Exclusive Special Courts for dealing with the cases involved in the offences against the scheduled castes and scheduled tribes. A bare reading of the provisions of Sections 2(d), 2(bd) and Section 14 categorically indicates that the said offences are exclusively triable by Special Courts as contemplated by the legislature.”
It is also worth noting that the Bench then notes in para 23 that, “It is further to be kept in mind that under the special provisions of the SC/ST Act, the right of the victim and the witnesses are on a higher pedestal than provided under the Cr.P.C. From the entire scheme of the Act, including the powers of the Special Courts, it can be concluded that the Act has given primacy and exclusivity to the Special Courts over normal Courts. The expression ‘bail’ in Section 14A of SC/ST Act includes anticipatory bail as well.”
Quite naturally, the Bench then points out in para 24 that, “Thus, once the original jurisdiction of the High Court for grant of bail is excluded, an application for anticipatory bail invoking the concurrent jurisdiction under section 438 Cr.P.C, which is also original in its nature and scope stands excluded. Consequently, the appellate jurisdiction alone can be exercised by the High Court, under section 14A.”
While continuing in the same vein, the Bench then observes in para 25 that, “Similarly, the Special Courts alone have jurisdiction to consider the bail applications and not the Sessions Court. It is a different matter that the Sessions Courts in Kerala are notified as the Special Courts. Notifying the Sessions Courts as Special Courts cannot derogate from the requirement of the statute that only the Special Court can consider the matters including applications for bail arising under the SC/ST Act.”
Most remarkably, the Bench then minces no words to explicitly mandate in para 26 holding that, “Thus, in view of the aforesaid principles enumerated above, firstly, the petitioner should have approached the Special Court for grant of anticipatory bail under Section 438 of the Cr.P.C. The order granting or rejecting the anticipatory bail under the provisions of SC/ST Act shall be amenable to the appellate jurisdiction of the High Court under Section 14A of the Act and not Section 438 Cr.P.C. In this context, I draw support from the Full Bench decision of the Allahabad High Court in Re: Provisions of Section 14A of SC/ST (Prevention of Atrocities Amendment) Act, 2015 (2018 Cri.LJ 5010) and the judgment of the High Court of Kerala at Ernakulam in K.M.Basheer vs. Rajani K.T. And others, 2022 LiveLaw (Ker) 472.”
For sake of clarity, we see the Bench then minces no words to hold unambiguously in para 27 that, “The judgments relied upon by the learned counsel for the petitioner are on different footings and are not applicable to the facts and circumstances of the present case.”
Finally, the Bench then concludes by holding in para 28 that, “For the foregoing reasons, the present petition for anticipatory bail is dismissed. However, the petitioner will be at liberty to approach the Special Court for appropriate relief.”
In essence, we thus see that the Punjab and Haryana High Court has made it absolutely clear that a person who is an accused under the SC/ST Act cannot directly approach the High Court for anticipatory bail. In such cases, the accused has to first approach the Special Courts first. It is only after approaching the Special Court and still failing to get any relief then the accused has the option to approach the High Court. This must always be abided with in totality by all the accused in similar such cases as laid down by Hon’ble Mr Justice Ashok Kumar Verma in this leading case so very clearly, cogently and convincingly!
Sanjeev Sirohi