(This is a guest post by Saranya Ravindran)
Section 438 of the Code of Criminal Procedure [CrPC] empowers the Sessions Court and the High Court to grant anticipatory bail, i.e., the direction to release a person on bail in the event of an arrest on a non-bailable offence. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) exempts the operation of Section 438 of the Criminal Procedure Code [CrPC], not allowing an accused to apply for anticipatory bail.
Anticipatory bail was originally intended to serve as a remedy for baseless accusations and malicious prosecution. However, over time, through subsequent Law Commission Reports and Supreme Court’s expansive interpretation, anticipatory bail was granted wider scope. In addition to patently false accusations, anticipatory bail was also upheld as a remedy where the court was satisfied that conditions on bail, such as cooperation with police, would suffice to conduct investigations. Such an expansion heavily relied on the need to deter arbitrary arrests by Police in the post Emergency era without considering the importance of custodial interrogation for investigations. Subsequent judgements by the Court in Sushila Agarwal have endorsed such an expansive view of anticipatory bail.
It is in this context of a liberal interpretation of anticipatory bail that in 2018, the Supreme Court, in Mahajan (2018, SC) diluted the restriction of anticipatory bail in cases involving the Atrocities Act. Rather than an unconditional denial of anticipatory bail as per Section 18, there were now three circumstances under which anticipatory bail could be granted under the Act—"(i) if no prima facie case is made out, (ii) it is a case of patent false implication, or (iii) if the allegation is motivated for extraneous reasons”. While the first two restrictions arguably are a call back to the original intent with which anticipatory bail was incorporated in the first place, the third restriction of allegations motivated for extraneous reasons has led to ambiguities on what exactly constitutes a case of “patent false implication”.
Following this, Parliament enacted the amendment of 2018, with an explicit provision that the amendment overrode the directions of Mahajan, reinstating that an accused under the Act cannot apply for anticipatory bail. The Supreme Court again heard a challenge to this provision in Prathvi Raj Chauhan v. Union of India (2020, SC), upholding the validity of the Act with a caveat that if a "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". The bar set out in this judgement becomes evident in the concurrent opinion of Bhat J. that anticipatory bail only extends to the rarest case, where no prima facie offence is shown in the FIR. In his words, such stringent terms "otherwise contrary to the philosophy of bail, [are] absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."
Thus, what Section 18 entails to do is not a blanket denial of anticipatory bail but limits the broad usage of anticipatory bail that has now become the norm among courts. Giving wide discretion to a grant of anticipatory bail, the Supreme Court in Sibbia (1980, SC), held that the concerned Courts ought “to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts”. Section 18 departs from this judgement, instead restricting the use of anticipatory bail to just mala-fide accusations or exceptional cases. Thus, in some ways, Section 18 merely goes back to the framer’s intent when seeking anticipatory bail, i.e., protection against accusations with no teeth and does not allow for the expansive application of anticipatory bail that the Supreme Court has interpreted over the years.
The importance of custodial interrogation and arrests to investigate offences cannot be understated in any crime, caste based or otherwise. But specifically, in cases under the Atrocities Act where the power imbalances between the SC/ST victim and an upper caste accused, its importance is even more stark. Cases under the Atrocities Act routinely reflect victim intimidation, threats to key witnesses and petitioners, etc. It is already recognised that if there is a reasonable apprehension that an accused is likely to tamper with evidence or threaten witnesses, then anticipatory bail ought not to be granted. Given the nature of caste-based crimes is one rife with power imbalances, a stricter line against anticipatory bail is justified under the Atrocities Act, even assuming it is not otherwise.
Application of Section 18
Despite a strict test being evolved for the grant of anticipatory bail under the Atrocities Act, the Delhi High Court granted bail in 80% of cases. In Naresh Tyagi v. State of NCT of Delhi (2020, DHC), anticipatory bail was granted despite CCTV footage establishing an offence. In Vasant v. State of Mahrastra, anticipatory bail was granted by the Supreme Court despite prima facie case being established. Rather than using the principles of granting anticipatory bail from Prathvi Raj Chauhan that restricted the grant of bail, courts grant bail borrowing lines of rationale from Mahajan, even if they do not cite it. There are two grounds under which anticipatory bail is most commonly granted—prima facie case being set out and false accusations.
Prima Facie Establishment of Case
While it is evident that anticipatory bail under the Atrocities Act can only be granted in exceptional cases where no offence has been made out in the FIR, courts consistently dive deeper into whether the offence as alleged meets the standards set out by the Act. In fact, Danish Khan v. State (Govt. of NCT of Delhi) (2021, DHC) explicitly says that "grant of bail under S. 438(1) by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case…" which, in reality, it is not. A consideration of whether the ingredients of the offence are met in their entirety is a matter of trial. When considering the prima facie establishment of case depends merely on whether there is a reasonable belief based on the FIR of the presence of a cognizable offence. That has been the bar set by the Supreme Court. However, every decision of the High Courts in such cases analyzes the technical burdens that the prosecution has to satisfy under the Act to convict the accused, namely the two ingredients needed to establish a case under Section 3(1)(r)—"(i) intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within 'public view'" [Sanjay Singh, 2021 DHC] Both of these are not just improper considerations for determining anticipatory bail as explained above, they also impose a high burden for judging whether a cognizable offence occurred.
A. Intentional Insult
The Supreme Court, has time and again, across cases like Dinesh Buddha (2006, SC) and Khuman Singh (2019, SC) held that evidence should show that the "offence was committed by the appellant only because the deceased belonged to a Scheduled Caste". This standard been used by courts across decisions such as Naresh Tyagi and Danish Khan. But proving that the exclusive reason for an offence was caste-based motivation is a high bar—the vast majority of crimes might not be exclusively motivated by casteist reasons, or even when they are, proving that a sexual assault is motivated by casteist motivations since casteist biases are subconscious, normalized, behavioural traits in everyday lives of upper castes and clear material evidence, either orally or otherwise to that effect is harder to gather.
The amendment to the Act under Section 8(c) tries to ease this burden by presuming that an accused knew of the victim's caste only when they had prior knowledge of the family, this is rarely applied by the Delhi High Court. But more substantially, the surname or place of residence in a village are easy identifiers of caste and, therefore, even if it cannot be proven that a person specifically knew of one’s caste, it is likely the accused did.
B. Public view
A precedent for defining public view is Sanjay Singh, which interprets this phrase as the "public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present". Danish Khan, Binay Kumar Chauhan v. State (NCT of Delhi) (2020, DHC) and Suraj Malhotra v. State (2020, DHC) all subscribe to this understanding of "public view". And even this restrictive provision on when an offence can said to be constituted is subject to further constraints—relatives or friends of the accused hearing casteist abuses are exempt from the definition of "public view”. With witness intimidation and a host of private offences which is where caste abuses most often thrive, this bar is again a high burden victim often struggle to meet.
False Accusation
The second most commonly used defence during anticipatory bail proceedings is the claim of the victim alleging false accusations. Especially given that the vast majority of cases under the Atrocities Act have underlying tensions such as land disputes or property rights issues (round 75% of bail hearings under the Act across High Courts in Delhi, Telangana and the Supreme Court involve a land dispute), an allegation of “false allegation” motivated by “extraneous reasons” to borrow from Mahajan, are consistently raised. It is undoubtedly important to grant anticipatory bail in cases where it is evident that the case filed involves baseless allegations. However, it is equally important to note the difference between a case filed due to a land issues, that leads to a verbal abuse on caste lines and a case filed against the accused due to hostilities emerging from a property dispute. The mere existence of an extraneous reason that leads to the offence alleged, cannot lead to an immediate grant of anticipatory bail if the extraneous reason mentioned, is the cause of, or is likely to be the cause of the alleged offence.
Thus, both the detailed inquiry into the ingredients of the offence and the high bar set out to satisfy each given the judicial approach, results in an increasing grant of anticipatory bail in contrast to what the intent of Section 18 originally was.
Conclusion
Most recently, the Chhattisgarh High Court observed that when the offence alleged under the SC/ST Act appears to be “a misuse of law”, the court can grant anticipatory bail. But as explained, what exactly constitutes a “misuse of law”, and what are the considerations courts must undertake to grant anticipatory bail is an area that needs clarification. In its absence, investigations continue to be hampered with the inability to arrest the accused for serious offences, the burden of which ultimately falls on victims who are meant to be protected by the Atrocities Act.
No comments:
Post a Comment