http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

STATE OF M.P. & ANR.

Vs.

RESPONDENT:

RAM KRISHNA BALOTHIA & ANR.

DATE OF JUDGMENT06/02/1995

BENCH:

MANOHAR SUJATA V. (J)

BENCH:

MANOHAR SUJATA V. (J)

JEEVAN REDDY, B.P. (J)

CITATION:

1995 AIR 1198 1995 SCC (3) 221

JT 1995 (2) 310 1995 SCALE (1)658

ACT:

HEADNOTE:

JUDGMENT:

1. Special leave granted

2. 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.

3. 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."

4. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

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.

5. The 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-

(i) forces a member of a Scheduled Caste or

a Scheduled Tribe to drink or cat any inedible

or obnoxious substance:

(ii)acts 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;

(iii)forcibly, 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;

(iv)wrongfully 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;

(v) wrongfully 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.

(vi) Comples 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

(vii) forces 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;

(viii) institutes false, malicious or

vexatious suit or criminal or other legal

proceedings against a member of a Scheduled

Caste or a Scheduled Tribe;

(ix) 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;

(x) intentionally insults or intimidates

with intent to humiliate a member of a

Scheduled Caste or a Scheduled Tribe in any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

place within public view;

(xi) assaults or uses force to any woman

belonging to a Scheduled Caste or a Scheduled

Tribe with intent to dishonor or outrage her

modesty;

(xii) 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.

(xiii) 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;

(xv) forces 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".

Section 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.

6. It 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? The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

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.

2............... 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.

The 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.

In 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.

7. We 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:-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

"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".

In the 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.

Also, 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.

8. 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.

This 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 Article 21........

Its answer was in the negative. Section 20(7) of the

Terrorists and Disruptive

317

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

Activities (Prevention) Act, 1987 was upheld.

9. Of 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.

10.It 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.

This 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.

11. A 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.

12. In the premises, Section 18 of the said Act cannot be

considered as violative of Articles 14 and 21 of the

Constitution.

13. The appeals are accordingly allowed. In the

circumstances, there will be no order as to costs.

318