(This is a guest post by Ammar Shahid)
Two orders from the Allahabad High Court raise a peculiar question: does the bar on anticipatory bail under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act“) continue to operate now that the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS“) has replaced the Code of Criminal Procedure, 1973 (“CrPC“)?
In Dinesh Kumar Srivastava v. State of UP (December, 2025), the applicant faced an FIR under Sections 376, 506, 406, 323, and 504 IPC along with Section 3(2)(v) of the SC/ST Act, arising from allegations of a relationship formed on the matrimonial website jeevansathi.com allegedly on a false promise of marriage. He sought anticipatory bail under Section 482 of the BNSS. The informant’s counsel opposed this on the ground that Section 18 of the SC/ST Act barred it. The Court disagreed, holding that firstly, Section 18 specifically refers to “Section 438 of the Code” and anticipatory bail applications are now filed under Section 482 BNSS, the bar had no application. Secondly, the Court held that prima facie the material on record did not establish an offence under Section 376 IPC, given that the relationship appeared consensual. The petition was allowed, and bail granted.
Next, Sushil Kumar v. State of UP (May, 2026) arose from rejection of an anticipatory bail application solely on the ground of Section 18. The alleged facts involved a commercial dispute over unpaid sale consideration for food grains, accompanied by an alleged assault and caste-based insult. The High Court set aside the trial Court’s order on two grounds. The first was the trial Court’s failure to consider the principle laid down in Prathvi Raj Chauhan v. Union of India, where the Supreme Court held that courts retain the power to grant pre-arrest bail in SC/ST Act cases where prima facie the ingredients of the Act are not made out. The second was the BNSS transition argument drawn from Dinesh Kumar Srivastava. The High Court held that these two factors had not been considered by the trial court, and sent the matter case for fresh consideration.
Section 8 of the General Clauses Act
Section 8 of the General Clauses Act, 1897 provides that where a Central Act is repealed and re-enacted with or without modification, references in any other Central Act to the repealed enactment shall, unless a different intention appears, be construed as references to the corresponding provisions of the re-enacted legislation.
Section 482 BNSS corresponds with Section 438 CrPC. Both carry the heading of anticipatory bail and provide the same relief to the same class of persons in the same procedural context. When Parliament enacted the BNSS, it was re-enacting an existing one under a different statutory number. By operation of Section 8 of the General Clauses Act, Section 18’s reference to Section 438 CrPC must now be read as a reference to Section 482 BNSS.
Neither Dinesh Kumar Srivastava nor Sushil Kumar consider Section 8, which is a serious flaw. The legal question, at its foundation, was one of statutory interpretation across a legislative transition. Section 8 of the General Clauses Act is the rule Parliament has itself put in place for resolving exactly this question. Its absence from the reasoning of both decisions is a significant gap.
The only caveat Section 8 carries is the phrase “unless a different intention appears.” One would need to find, within the SC/ST Act or Section 18 itself, some indication that Parliament intended the bar to be tied specifically and permanently to Section 438 CrPC as a provision, rather than to the institution of anticipatory bail as such. No such intention is apparent. Section 18 was aimed at the relief of anticipatory bail, not at a particular section number. The number was simply the address at which that relief resided at the time.
What the 2018 Amendment Tells Us
The legislative history of Section 18 adds important context. In Subhash Kashinath Mahajan v. State of Maharashtra, the Supreme Court permitted anticipatory bail in SC/ST Act cases subject to certain conditions. Parliament responded within months by enacting the SC/ST Amendment Act, 2018, inserting Section 18-A which, among other things, reinforced the bar on anticipatory bail. Parliament actively closed a space that the Supreme Court had opened (which it has, since, reopened - more on that below).
The suggestion that this same Parliament, in 2023, inadvertently allowed the Section 18 bar to lapse through the BNSS transition without any express amendment is difficult to accept. When a legislature has demonstrated such attentiveness to a particular provision, the more reasonable inference is that it relied on established principles of statutory interpretation, specifically Section 8 of the General Clauses Act, to ensure continuity. If Parliament had wanted to lift the bar, it could have done so expressly in the BNSS. It did not.
The Prathvi Raj Chauhan Exception
Both decisions also place reliance on the principle formulated by Prathvi Raj Chauhan, where the Supreme Court held that in cases where no prima facie material exists to make out an SC/ST Act offence, Courts may grant pre-arrest bail through inherent jurisdiction under Section 482 CrPC. This reading of Prathvi Raj Chauhan, however, is broader than what the judgment actually supports.
The inherent jurisdiction of the High Court in criminal matters vested in Section 482 CrPC, which corresponds to Section 528 of the BNSS, not Section 482 BNSS, which is the anticipatory bail provision. Section 18’s bar has always applied to the anticipatory bail route, not to the exercise of inherent jurisdiction in exceptional cases. These are two separate heads of power, and conflating them misrepresents both.
Beyond this structural issue, the Prathvi Raj Chauhan exception is not a straightforward gateway to routine merits review. The Supreme Court was clear that this inherent power is available “sparingly” in “very exceptional cases” to prevent a “miscarriage of justice or abuse of process of law,” and was explicit that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” The Court in Sushil Kumar, having identified Prathvi Raj Chauhan as a primary ground for remand, does not specify how the trial court is to apply this demanding threshold on reconsideration. Without any guidance, the remand functions as an implicit invitation to conduct the kind of routine merits review that Prathvi Raj Chauhan cautioned against.
This issue is also visible in Dinesh Kumar Srivastava. The Court's own prima facie analysis found no offence under Section 376 IPC on the basis that the relationship appeared consensual and no force was alleged. But the Prathvi Raj Chauhan threshold is directed at the absence of SC/ST Act ingredients from the face of the FIR, not at the tenability of a connected IPC charge. Where an FIR contains specific allegations of caste-based insult or harassment, as it does in both the decisions under discussion, it is not obvious that the threshold for invoking the inherent jurisdiction exception has been crossed. Hitesh Verma v. State of Uttarakhand, which Sushil Kumar itself cites, reaffirms that the bar under Section 18 is absolute where SC/ST Act offences are prima facie made out. Citing Hitesh Verma while simultaneously remitting for fresh consideration of anticipatory bail, without a definitive holding on whether SC/ST Act ingredients are absent from the FIR, creates a real tension that the judgment leaves unresolved.
Conclusion
The question raised by these two decisions is ultimately not a complicated one. Section 8 of the General Clauses Act provides a clear and direct answer: the bar under Section 18 travels with the legislative transition from CrPC to BNSS because Section 482 BNSS is the corresponding provision to Section 438 CrPC. The legislative history of Section 18, including the 2018 amendment, makes it implausible that Parliament intended this bar to lapse silently. The Prathvi Raj Chauhan exception operates through inherent jurisdiction in exceptional cases, not through anticipatory bail as a matter of routine.
The SC/ST Act is protective legislation enacted for a specific purpose. Its provisions are intended to give effect to that purpose, not to be read in ways that drain them of content through procedural technicality. Courts interpreting special protective statutes are expected to favour readings that advance the statute’s objects. A reading that allows the bail bar to lapse because a provision number changed does the opposite.
[Note: at the time of writing, it is not clear whether either decision has been challenged in the Supreme Court, or has been questioned by a bench of larger strength in the High Court itself]
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