Himachal Pradesh High Court: Anoop Chitkara J., delivered a well-reasoned order and held that the practice of the accused surrendering and getting interim bail cannot be said to override the legislative intention of restraining the anticipatory bail to the violators of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e. SCSTPOA.
The background of the petition is that multiple petitions have been taken up together as the dispute in all of them is regarding petitioners being arraigned as accused of commission of offences punishable under SCSTPOA who have come up under Section 439 Criminal Procedure Code seeking permission to surrender before this Court, and simultaneously seeking release on ad-interim bail. The Court has however stayed their arrests subject to joining their investigation.
Counsel Suresh Kumar Thakur, H.S. Rana, Peeyush Verma, I.N. Mehta, Deepak Kaushal, Neel Kamal Sharma, Mandeep Chandel, A.S. Rana, Vinod Chauhan, and Aditya Thakur represented the petitioners.
Counsel Ashok Sharma, Nand Lal Thakur, Ashwani Sharma, Ram Lal Thakur, Divya Sood, Manoj Bagga and Rajat Chauhan represented the State. Counsel Anand Sharma represented the complainant. The Amicus Curiae in the instant case were Bipin Negi, Mr. Sanjeev Bhushan, Virender Singh Chauhan, Chander Narayan Singh, Ishan Kashyap, Kiran Dhiman, Tim Saran, Babita Chauhan, Megha Kapoor Gautam, and Shradha Karol.
The Court after perusing Chapter XXXIII i.e. the provisions related to ‘Bails and Bonds’ and relying on judgment titled P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141 observed that every person in custody has a statutory right to apply for bail and denial of such a request would directly conflict with Article 21 Constitution of India. However, any person applying for bail under Section 439 CrPC must fulfill twin conditions,
- Having been accused of some non-bailable offence, and
- In custody impliedly for the said offence.
In the absence of any restrictions imposed by SCSTPOA, 1989 on the powers of Courts under Section 439 CrPC, any person against w5hom accusations have been made of committing an offence under SCSTPOA would be entitled to seek bail under Section 439 CrPC provided she is in custody or offers to do so.
The Court further observed that unlike Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985, neither the Legislature has carved out any exceptions from general provisions of Sections 437 & 439 CrPC relating to the grant of bail by enactment in the SCSTPOA 1989, nor does it impose any fetters in exercising powers under Section 439 CrPC. Thus, Sessions Court and High Court’s powers, relating to SCSTPOA, remain untrammeled under Section 439 CrPC. When a person seeks surrender and simultaneously pray for interim bail, under SCSTPOA, she cannot pray for interim bail by appearing before a Magistrate under Section 437 CrPC. The reason being that under Section 14 SCSTPOA 1989, the offences are exclusively triable by Special Courts, which shall be the Court of Sessions. However, while exercising powers under Sections 438 & 439 CrPC, the Sessions and High Court import the relevant provisions of Section 437 CrPC.
The Court further relied on judgment titled Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 and State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 and observed that custody is sine qua non to consider application under Section 439 CrPC. Bail is the antithesis of custody. In the absence of any riders or restrictions under Section 439 CrPC, any person accused of a non-bailable offence, under any penal law, including the violations under the SCSTPOA 1989, can apply under Section 439 CrPC, offering to surrender and simultaneously seeking interim bail.
The Court relied on judgments Issma v. State of U.P., 1992 SCC OnLine All 471 and Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 and observed that on receipt of such application, the Court is to satisfy that the applicant stands arraigned as an accused in a FIR disclosing non-bailable offences. If all these parameters are complete, then the Courts are under an obligation to accept surrender. Since custody is a sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after this deemed custody. All such pleas fall under the scope of Section 439 CrPC itself, and there is no need to invoke Section 482 CrPC. After that, granting or refusing interim bail is a judicial function. A prudent condition while granting interim bail in SCSTPOA, 1989 is an assurance from the accused of not terrorizing the victim, with a rider that interim bail’s order shall ipso facto vacate if the accused attempts to browbeat the victim or repeats any such act.
In view of the above, the Court held that the interim bail is neither in contradiction to the judicial precedents nor obstructs justice’s path. Thus, resorting to Section 439 CrPC and surrendering before Sessions Court or High Court and simultaneously obtaining ad-interim bail does not amount to bypassing the restrictions placed in Sections 18 and 18-A of SCSTPOA. This practice of the accused surrendering and getting interim bail cannot be said to override the legislative intention of restraining the anticipatory bail to the violators of the SCSTPOA.[Ami Chand v. State of Himachal Pradesh, 2020 SCC OnLine HP 1840, decided on 14-09-2020]
Arunima Bose, Editorial Assistant has put this story together