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Supreme Court of India · 5-Judge Constitution Bench
Gurbaksh Singh Sibbia v. State of Punjab
(1980) 2 SCC 565·
“The power exercisable under Section 438 is somewhat extraordinary in character and is to be invoked in exceptional cases where it appears that the person may be falsely implicated, or a frivolous case may be launched against him, or there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.”
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You ask
Is anticipatory bail under Section 438 CrPC available for offences under the SC/ST Act?
DigiLaw answers
Grounded · 3 sources
TL;DR
The bar in Section 18 of the SC/ST Act on anticipatory bail is constitutionally valid . But where the FIR does not, on its face, disclose a prima facie offence under the Act, Section 438 CrPC remains available .
Issue
Whether anticipatory bail under Section 438 CrPC is available where the offence is alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Rule
Section 18 of the SC/ST Act creates an absolute bar on anticipatory bail. The Supreme Court has held this bar is constitutionally valid . The exception, recognised in Vilas Pandurang Pawar, is that Section 18 only operates where a prima facie offence under the Act is disclosed on the face of the complaint or FIR .
“The scope of enquiry under Section 18 is limited to whether on the face of it the allegations make out a prima facie case for offences under the Act. Where the allegations on the face are absurd or do not disclose such an offence, the bar of Section 18 will not apply.”
Application
High Courts have applied this reasoning to deny anticipatory bail where the FIR discloses prima facie atrocity, while granting it where the allegations are general or where the "in any place within public view" requirement is not met .
Conclusion
Anticipatory bail is barred under Section 18 SC/ST Act unless the FIR fails to disclose a prima facie offence under the Act, in which case the protection of Section 438 CrPC is available.
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