of M.P. & Anr Vs. Ram Krishna Balothia & Anr  INSC 114
(6 February 1995)
Sujata V. (J) Manohar Sujata V. (J) Jeevan Reddy, B.P. (J)
1995 AIR 1198 1995 SCC (3) 221 JT 1995 (2) 310 1995 SCALE (1)658
Special leave granted
These appeal by special have been filed by the State of Madhya Pradesh and
another against the judgment and order dated 25.3.1994 of the High Court of
Madhya Pradesh which is the common judgment governing all these appeals. In the
petitions which were filed by the respondents here, before the High Court of
Madhya Pradesh under Article 226 of the Constitution, the respondents had
challenged the constitutional validity of certain provisions of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The High
Court, while negativing this challenge in respect of some of the sections of
the said Act has however, held that Section 18 of the said Act is
unconstitutional since it violates Articles 14 and 21 of the Constitution of
India- The present appeals have been filed by the State of Madhya Pradesh to
challenge the finding of the Madhya Pradesh High Court, in respect of section
18 of the said Act.
Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of 313
Atrocities) Act, 1989 is as follows:- "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."
Section 438 of the Code of Criminal Procedure provides for grant of bail to
persons apprehending arrest. It provides, inter alia, that when any person has
reason to apprehend that he may be arrested on an accusation of having
committed a non-bailable offence, he may apply to the High Court or to a Court
of Sessions for a direction that in the even of such arrest, he shall be
released on bail. We have to consider whether a denial of this right to apply
for anticipatory bail in respect of offences committed under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1 989, can be
considered as violative of Articles 14 and 21 of the Constitution.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as 'the said Act') was enacted in order to prevent the
co ion 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. "Atrocity" has been defined under Section 2 of the said Act
to mean an offence punishable under Section 3(1). Section 3(1) provides as
follows:- "Punishments for offences of atrocities :- (1) whoever, not
being a member of a Scheduled Caste or a Scheduled Tribe-
a member of a Scheduled Caste or a Scheduled Tribe to drink or cat any inedible
or obnoxious substance:
with intent to cause injury, insult or annoyance to any member of a Scheduled
Caste or a Scheduled Tribe by dumping excreta waste matter, carcasses or any
other obnoxious substance in his premises or neighbourhood;
removes clothes from the person of a member of a Scheduled Caste or a Scheduled
Tribe or parades him naked or with painted face or body or commits any similar
act which is derogatory to human dignity;
occupies or cultivates any land owned by, or allotted to, or notified by any
competent authority to be allotted to, a member of a Scheduled Caste or a
Scheduled Tribe or gets the land allotted to him transferred;
dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land
or premises or interferes with the enjoyment of his rights over any land
premises or water.
or entices a member of_ Scheduled Caste or a Scheduled Tribe to do 'begar' or
other similar forms of forced or bonded labour other than any compulsory
service for public purposes imposed by Government
or intimidates a member of a Scheduled Caste or a Scheduled 314 Tribe not to
vote or to vote to a particular candidate or to vote in a manner other then
that provide by law;
institutes false, malicious or vexatious suit or criminal or other legal
proceedings against a member of a Scheduled Caste or a Scheduled Tribe;
gives any false or frivolous information to any public servant and thereby
causes such public servant to use his lawful power to the injury or annoyance
of a member of a Scheduled Caste or a Scheduled Tribe;
insults or intimidates with intent to humiliate a member of a Scheduled Caste
or a Scheduled Tribe in any place within public view;
or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe
with intent to dishonor or outrage her modesty;
I being in a position to dominate the will of a woman belonging to a Scheduled
Caste or a Scheduled Tribe and uses that position to exploit her sexually to
which she would not have otherwise agreed.
corrupts or fouls the water of any spring, reservoir or any other source
ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so
as to render it less fit for the purpose for which it is ordinarily used (xiv)
denies a member of a Scheduled Caste or a Scheduled Tribe customary right of
passage to a place of public resort or obstructs such member so as to prevent
him from using or having access to a place of public resort to which other members
of public or any section thereof have a right to use or access to;
or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his
house, village or other place of residence; shall be punishable with
imprisonment for a term which shall not be less than six months but which may
extend to five years and with fine".
438 of the Code of Criminal Procedure does not apply to any case involving
arrest of any person accused of having committed any of the above offences.
is undoubtedly true that Section 438 of the Code of Criminal Procedure, which
is available to an accused in respect of offences under the Penal Code, is not
available in respect of offences under the said Act. But can this be considered
as violative of Article 14?
offences enu- merated under the said 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. It also provides that enforcement of any
disability arising out of "Untouchability" shall be an offence
punishable in accordancewith law. The offences, therefore, which are enumerated
under Section 3(1) arise out of the practice of "Untouchability". It
is in this context that certain special provisions have been made in the said
Act, including the impugned provision under Section 18 which -is before us. The
exclusion of Section 438 of the Code of Criminal Procedure in connection with
offences under the said Act has to be viewed in the context of the prevailing
social conditions which give 315 rise to such offences, and the apprehen-
Scheduled Castes persons eat inedible sub- sion 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. In this connection we may refer to the
Statement of Objects and Reasons accompanying the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced
in Parliament. It sets out the circumstances surrounding the enactment of the
said Act and points to the evil which the statute sought to remedy. In the
Statement of Objects and Reasons it is stated:- Despite various measures to
improve the socioeconomic 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, humliations 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.
When they assert their rights and resist practices of untouchability against
than or demand statutory minimum wages or refuse to do any bonded and forced labour,
the vested interests try to cow them down and terronse 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 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 sub-stances like human excreta. and attacks on and
mass killings of helpless Scheduled Castes and Schedules Tribes and rape of
women belonging to the Scheduled Castes and the Schedules
Tribes.................... A special legislation to check and deter crimes
against them committed by non-Schedules Castes and nonSchedules Tribes has,
therefore, become necessary.
above statement graphically describes the social conditions which motivated the
said legislation. It is pointed out in the above Statement of Objects and
Reasons that when members of the Schedules Castes and Schedules Tribes assert
their rights and demand statutory protection, vested interests try to cow them
down and terrorise them.
these circumstances, if anticipatory bail is not made available to persons who
commit such offences, such a denial cannot be considered as unreasonable or violative
of Article 14, as these offences form a distinct class by themselves and cannot
be compared with other offences.
have next to examine whether Section 18 of the said Act violates, in any
manner, Article 21 of the Constitution which protects the life and personal
liberty of every person in this country. Article 21 enshrines the right to live
with human dignity, a precious right to which every human-being is entitled
those who have been, for centuries, denied this right, more so. We find it
difficult to accept the contention that Section 438 of the Code of Criminal
Procedure is an integral part of Article 21. In the first place, there was no
provision similar to Section 438 in the old Criminal Procedure Code. The Law
Commission in its 41st Report recommended introduction of provision for grant
of 316 anticipatory ball. It observed:- "We agree that this would be a
useful advantage. Though we must add that it is in every exceptional cases that
such power should be exercised".
light of this recommendation, Section 438 was incorporated, for the first time,
in the Criminal Procedure Code of 1973. Looking to the cautious recommendation
of the Law Commission, the power to grant anticipatory bail is conferred only
on a Court of Sessions or the High Court.
anticipatory bail cannot be granted as a matter of right. It is essentially a
statutory right conferred long after the coming into force of the Constitution.
It cannot be considered as an essential ingredient of Article 21 of the
Constitution. And its non-application to a certain special category of offences
cannot be considered as violative of Article 21.
Section 20(7) of the Terrorists and Disruptive Activities (Prevention) Act,
1987 came for consideration before this Court in the case of kartar Singh v.State
of Punjab (JT 1994 (2) SC 423). Section 20(7)
of the Terrorists and Disruptive Activities (Prevention) Act, 1987 also
provides that nothing in Section 438 of the Code of Criminal Procedure shall
apply in relation to any case involving arrest of any person of an accusation
of having committed an offence punishable under this Act or any rule made thereunder.
The language of Section 20(7) is almost identical with the language of Section
18 of the said Act which we are considering. It was argued before this Court in
Kartar Singh's Case (supra) that the right of an accused to avail of
anticipatory bail is an integral part of Article 21 of the Constitution and its
removal from the Terrorists and Disruptive Activities (Prevention) Act, 1987
would be violative of Article 21. This Court referred to the history of
introduction of Section 438 in the Code of Criminal Procedure (paragraph 355)
and said that there was no such provision in the old Criminal Procedure Code
and it was in- troduced for the first time in the present Code of 1973.
Court also pointed out that Section 438 is omitted in the State of U.P. by
Section 9 of the Code of Criminal Procedure (UP Amendment) Act, 1976, with
effect form 28.11.1975. In the State of West Bengal, a proviso is inserted to
Section 438 (1) with effect from 24.11.1988 to the effect that no final order
shall be made on an application filed by the accused praying for anticipatory
bail in relation to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than seven days' notice to present its
case. OA similar provision is also introduced by the State of Orissa. Where a
person accused of a non-bailable offence is likely to abscond or otherwise
misuse this liberty while on bail, he will have no justification to claim the
benefit of anticipatory bail. In the case of terrorists and disruptists, there
was every likelihood of their absconding and misusing their liberty if released
on anticipatory bail and, therefore, there was nothing wrong in not extending
the benefit of Section 438 to them. This Court concluded:- "further at the
risk of repetition we may add that Section 438 'contains a new provision
incorporated in the present Code creating a new right. If that new right is
taken away, can it be said that the removal of Section 438 is violative of
answer was in the negative. Section 20(7) of the Terrorists and Disruptive 317
Activities (Prevention) Act, 1987 was upheld.
course, the offences enumerated under the present case are very different from
those under the Terrorists and Disruptive Activities (Prevention) Act, 1987.
However, looking to the historical background relating to the practice of
"Untouchability" and 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 said Act. It cannot
be considered as in any manner violative of Article 21.
was submitted before us that while Section 438 is available for graver offences
under the Penal Code, it is not available for even "minor offences"
under the said Act.
grievance also cannot be justified. The offences which are enumerated under
Section 3 are offences which, to say the least, denigrate members of Scheduled
Castes and Schedules 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 secrvitude. These offences constitute a separate
class and cannot be compared with offences under the Penal Code.
similar view of Section 18 of the said Act has been taken by the Full Bench of
the Rajasthan High Court in the Case of Jai Singh and Anr. v. Union of India (AIR
1993 Rajasthan 117) and we respectfully agree with its findings.
the premises, Section 18 of the said Act cannot be considered as violative of
Articles 14 and 21 of the Constitution.
The appeals are accordingly allowed. In the circumstances, there will be no
order as to costs.