In Dr.Subhash Kashinath Mahajan, the Honble Supreme Court had

In Dr.Subhash Kashinath Mahajan, the Honble Supreme Court had 

specifically held that the exclusion of Section 438 of Cr.PC applies when a 

prima facie case of commission of offence under the Atrocities Act is made 

out.  On the other hand, if it can be shown that the allegations are prima 

facie motivated and false, such exclusion will not apply.    Thus, the 

decision rendered by the Honble Supreme Court in Dr.Subhash Kashinath 

Mahajan rests on an interpretation of Section 438 of Cr.PC.  Section 18 A 

does not appear to have removed the basis on which Dr.Subhash Kashinath 

Mahajan judgment is founded.  Mere employment of the expression 

notwithstanding any judgment or order or direction of any Court? may not 

make any difference.  I am therefore tempted to hold that even post 

amendment, Sessions Courts also will have the power  to grant  anticipatory 

bail. However, I cannot lose sight of the fact that the constitutional 

validity of Section 18 A has been  challenged before the Honble Supreme 

Court. The Honble Supreme Court specifically declined to stay the operation 

of this provision, though a strong request was made.  Thus, as on date, in 

view of  Section 18 A, Section 438 of Cr.PC stands excluded in cases arising 

under the Atrocities Act.  

11.The  outcome of the challenge can be one way or the other. Section 

18 A of the Act can be upheld.  Or it can be struck down. Even if its 

validity is upheld, the High Courts would still be entitled to grant 

anticipatory bail. The statute only excludes the applicability of Section 438 

of Cr.PC.   In the State of Uttar Pradesh, Section 438 of the Code has been 

deleted by the State amendment and the said  deletion has been upheld in 

(1994) 3 SCC 569 (Kartar Singh vs. State of Punjab).    But, that has not 

curtailed the extraordinary power of the High Court to entertain a plea of 

anticipatory bail and this power was held to be available in Hema Mishra  vs. 

State of U.P. and Ors, (2014) 4 SCC 453). 

12.Section 438 of Cr.PC is not the sole repository of the power to 

grant anticipatory bail.  The High Courts are endowed with inherent powers to 

make such orders as to secure the ends of justice.   I hope I am not 

indulging in quibbling or hair splitting  when I say that neither Section 18 

nor Section 18 A engraft a bar against grant of anticipatory bail.  They are 

to the effect that the provision of Section 438 of the Code shall not apply 

to a case under the Atrocities Act.  Even if Section 438 of Cr.PC is not 

available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that 

this Court is very much possessed of the power to grant anticipatory bail 

even in cases arising under  the Schedules Castes and the Scheduled Tribes 

(Prevention of Atrocities) Act, 1989.  The petitions can be filed under 

Article 226 of the Constitution of India or under Section 482 of Cr.PC.  

13.If the provision is struck down, in view of Dr.Subhash Kashinath 

Mahajan judgment, the Sessions Courts also will have the power to grant 

anticipatory bail. Of course, the test laid down in Dr.Subhash Kashinath 

Mahajan judgment will have to be met. I initially felt that Sessions Courts 

can also grant anticipatory bail in such cases. But, so long as Section 18 A 

(2) of the Act is in the statute book, since Sessions Courts cannot invoke 

Section 482 of Cr.PC, I hold that it is only the High Court which can grant 

the relief of anticipatory bail and not the Sessions Courts. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 

( Criminal Jurisdiction )

Date  : 26/11/2019

PRESENT

THE HONBLE MR.JUSTICE G.R.SWAMINATHAN

CRL OP(MD). No.17224 of 2019

Dr.S.Ariharan, Vs.  The Inspector of Police,

#bail

#anticipatorybail

#scandstact