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2019 DIGILAW 582 (HP)

State Of Himachal Pradesh v. Dinesh Singh

2019-05-10

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. The explanation offered by the concerned Court is accepted and the issue is accordingly given a quietus. 2. Evidently, the only ground on which the present petition assailing the release of the respondent on anticipatory bail has been filed is that the same was in contravention of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short Act). 3. Even though Section 18 of the Act specifically states that the provisions of Section 438 of the Code of Criminal Procedure (for short Code) which give power to the Court to release the accused on anticipatory bail do not apply to persons committing an offence under the Act. However, the Hon’ble Supreme Court in Dr. Subhash Kashinath Mahajan versus State of Maharashtra and another (2018) 6 SCC 454 held that "There is no absolute bar for grant of anticipatory bail, if no prima facie case is made out or where on judicial scrutiny, the complaint is found prima facie malafide". It shall be apposite to refer to para-79 of the report which reads thus:- "79. Our conclusions are as follows: (i) ----- (ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar vs. State of Gujarat (1992) 1 Guj LR 405, and N.T. Desai vs. State of Gujarat (1997) 2 Guj LR 942 and clarify the judgments of this Court in State of M.P. vs. Ram Kishna Balothia (1995) 3 SCC 221 and Manju Devi vs. Onkarjit Singh Ahluwalia (2017) 13 SCC 439 . (iii) ----- (iv) ----- (v) ----- (vi)The above directions are prospective." 4. No doubt, the Government of India has later on passed a Bill in Parliament and restored the original provisions of Section 18 of the Act, but this was passed in both Houses of Parliament in the month of August, 2018 and the Act received the assent of the President of India only on 17.08.2018. No doubt, the Government of India has later on passed a Bill in Parliament and restored the original provisions of Section 18 of the Act, but this was passed in both Houses of Parliament in the month of August, 2018 and the Act received the assent of the President of India only on 17.08.2018. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 (Act No.27 of 2018) has come into operation with effect from 17.08.2018 and new Section 18-A of the Act has been inserted as under:- 18-A: No enquiry or approval required-(1) For the purpose of this Act- (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) The investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act or the Code shall apply. 2. The provision of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court. 5. As per the amendment, the provisions of Section 438 of the Code shall not apply to a case under the Act, notwithstanding, any judgment or order or direction by any Court. Meaning thereby, with effect from 20th March, 2018 to 17th August, 2018, the directions given by the Hon’ble Supreme Court in Dr. Subhash Kashinath Mahajans case (supra) were applicable and in view of Article 142 of the Constitution of India were binding on all Courts in India. 6. Thus, what essentially flows from the aforesaid facts is that during the period 20.03.2018 to 17.08.2018, the learned Special Judge was bound to make note of the judgment passed by the Hon’ble Supreme Court in Dr. Subhash Kashinath Mahajans case (supra) and decide the cases accordingly. 7. A perusal of the impugned order would otherwise reveal that the learned Special Judge while granting anticipatory bail has given cogent and convincing reasons for the same which in normal circumstances cannot be substituted by this Court. 8. There is no merit in this petition and the same is accordingly dismissed.