Atrocities against SC/ST: Non-entitlement to Anticipatory bail – Under SC/ST Act:

By Y. Srinivasa Rao, Principal Assistant Sessions Judge, Tirupati, Andhra Pradesh.

TABLE OF CONTENTS:-

  1. Introduction
  2. Statement of Objects and Reasons adopted to SC/ST Act
  3. False Complaints
  4. Article 39A
  5. NHRC Report
  6. Section 18 of the SC/ST Act
  7. Conclusion

Introduction:— The SC/ST Act was enacted in order to prevent the commission of atrocities against members of Scheduled Castes and Scheduled Tribes and to provide for Special Courts for the trial of offence under the said Act as also to provide for the relief and rehabilitation of victims of such offences. Article 15 of the Indian Constitution prohibits, discrimination against any citizen on grounds of religion, race, caste, sex etc. Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989: This enactment was introduced by the Parliament of India, to prevent atrocities against scheduled castes and scheduled tribes. Section 3 of the Act which deals with offences of atrocities. In National Campaign on Dalit Human Rights vs. Union of India,  (2017) 2 SCC 432, it was held that untouchability is abolished and its practice in any form is forbidden by Article 17 of the Constitution. The enforcement of any disability arising out of untouchability as per Article  17 shall be an offence punishable under the law. To give effect to Article 17 in its true letter and spirit, the Parliament enacted the Untouchability (Offences) Act, 1955. Sections 3 to 7 of the said Act prescribed punishments for enforcing religious, social and any other kind of disabilities on the ground of untouchability.

Statement of Objects and Reasons appended to the SC/ST Act :—

“Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.

2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Penal Codehave been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes, has therefore, become necessary.

3. The term “atrocity” has not been defined so far. It is considered necessary that not only the term “atrocity” should be defined but stringent measures should be introduced to provide for higher punishments for committing such atrocities. It is also proposed to enjoining on the States and the Union Territories to take specific preventive and punitive measures to protect the Scheduled Castes and the Scheduled Tribes from being victimised and where atrocities are committed, to provide adequate relief and assistance to rehabilitate them.”

False complaints:— As was observed by Apex Court, “The Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by the police for extraneous reasons against other citizens. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This court must enforce such a guarantee. Law should not result in caste hatred,” 

“Innocent citizens are termed accused, which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance,” See. Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra , (2018) 6 SCC 454.

Articles 39A :— Article 38 A of the Constitution provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Legal Services Authority Act,1987 was enacted to constitute special authorities for providing free and competent legal services to weaker sections of the society. Section 4 (m) of the LSA Act provides for special efforts to be made for enlisting the support of voluntary social welfare institutions, particularly among Scheduled Castes and Scheduled Tribes. Section 12 of the LSA Act provides for free legal aid to the Scheduled Castes and Scheduled Tribes.

NHRC Report:— In National Campaign On D.H. Rights vs Union Of India,(2017) 2 SCC 432  , the Hon’ble Supreme Court examined the NHRC Report on Atrocities against Scheduled Castes, the report of Justice K Punnaiah Commission, Sixth report of the National Commission for Scheduled Castes and a paper titled “The Status of Implementation and need for amendments in the Prevention of Atrocities Act, India” published by Petitioner No. 1. It is contended by the Petitioners that the implementation of the Act has been totally ineffective and that Dalits are still suffering from atrocities in view of the non compliance of various provisions of the Act. The NHRC in its Report observed that “even in respect of heinous crimes the police machinery in many states has been deliberately avoiding the Scheduled Castes and Scheduke Tribes ( Prevention of Atrocities), 1989”. The Report further highlighted the non registration of cases and various other machinations resorted to by the police to discourage Dalits from registering cases under the Act. The Petitioners also highlighted the persisting problem of non- registration of cases under appropriate provisions of the Act, delays in filing of charge-sheet, accused not being arrested, release of high risk offenders on bail and filing of false and counter cases against Dalit victims. The Petitioners also complained of non-payment of compensation to the victims or their legal heirs. The Petitioner also relied upon the findings of the sixth Report of the National Commission to show that the Scheduled Castes and Scheduled Tribes have no access to legal aid. Various committees contemplated by the Act at various levels are dysfunctional.

Section 18 of the SC/ST Act:— “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.” A reading of the above provision makes it clear that  Section 438  of the Code is not applicable to persons committing an offence under the SC/ST Act. In the complaint, the complainant has specifically averred that she and her family members were insulted by the petitioners by mentioning her caste and also assaulted them by saying “Beat the Mahar so that, they should not live in the village.” See. National Campaign On D.H. Rights & … vs Union Of India & Ors 

As was pointed out in Vilas Pandurang Pawar & Anr vs State Of Maharashtra & Ors , AIR 2012 SC 3316,  Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act  to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438  of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.

The Hon’ble Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No. 1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a decision of the the Hon’ble Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State of Orissa, 1996 Cri. L.J. 2743, in spite of the specific bar under Section 438 of the Code, the Courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act,

But, the Hon’ble Apex Court in Vilas Pandurang Pawar & Anr vs State Of Maharashtra & Ors , AIR 2012 SC 3316 it was held that in view of the specific statutory bar provided under Section 18 of the SC/ST Act, the above decisions relied on by the petitioners cannot be taken as a precedent and as discussed above, it depends upon the nature of the averments made in the complaint. See also. Bachu Das vs. State of Bihar Bachu Das, 2014 3 SCC 471

In Manju Devi v. Onkarjit Singh Ahluwalia, (2017) 13 SCC 439, it was observed that it is undoubtedly true that Section 438 of the Code,which is available to an accused in respect of offences under IPC, is not available in respect of offences under the SC/ST Act. The offences enumerated under the SC/ST Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of “untouchability” and forbids its practice in any form and also provides that enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law. The offences, therefore, which are enumerated under Section 3(1) of the SC/ST Act arise out of the practice of “untouchability”. It is in this context that certain special provisions have been made in the SC/ST Act, including the impugned provision under Section 18 which is before us. The exclusion of Section 438 of the Code in connection with offences under the SC/ST Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail.

Conclusion:— As was observed by the Apex Court, though the Constitution of India abolishes “untouchability” but in view of the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the SC/ST Act. The offences which are enumerated under Section 3 of the SC/ST Act are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code. As is discussed above, Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code.

SC/ST (POA) ACT

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