Holding

Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is constitutionally valid and its exclusion of Section 438 CrPC does not violate Articles 14 or 21.

Summary

The State of Madhya Pradesh appealed against a High Court judgment that held Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989— which bars the application of Section 438 of the Code of Criminal Procedure (anticipatory bail) to offences under the Act—unconstitutional. The Supreme Court examined whether the exclusion of anticipatory bail violated Articles 14 and 21 of the Constitution. It held that the offences under the Act constitute a separate and special class arising from the practice of untouchability, warranting special procedural safeguards. The Court observed that anticipatory bail is a statutory right created after the Constitution came into force and is not an essential component of Article 21; therefore, its denial for these offences does not infringe the right to life and liberty. Consequently, Section 18 was upheld as constitutionally valid and the appeal was allowed.

Issues considered

Whether Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989, which excludes the operation of Section 438 CrPC, violates Article 14 of the Constitution.
Whether the same provision violates Article 21 of the Constitution.
Whether the right to anticipatory bail under Section 438 is an essential ingredient of Article 21.
Whether offences under the SC/ST (Prevention of Atrocities) Act constitute a distinct class justifying the exclusion of anticipatory bail.

Legislation cited

Subjects

Scheduled CastesScheduled TribesAtrocities Actanticipatory bailSection 438Article 14Article 21untouchabilityspecial legislation

Judgment

(

STATE OF M.P. AND ANR. A
v.
RAM KISHNA BALOTHIA AND ANR.

FEBRUARY 6, 1995

[B.P. JEEVAN REDDY AND SUJATA V. MANOHAR, JJ.] B

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989: Section 18-0ffences fall into a separate and special class-Cannot be
compared with other offences-Anticipatory bail-Denial of-Neither un-
reasonable nor unconstitutional. c
Code of Criminal Procedure, 1973 : Section 438-Anticipatory
bail-Neither an essential ingredient nor an integral part of Article 21 of the
Constitution-Denial to special category of offences-Held : cannot be con-
sidered as violative of Article 21.
D
Constitution of India, 1950: Articles 14 and 21.

Right to Anticipatory bail-Special category of offences-Denial
of-Held : not an essential ingredient or an integral part and its denial not
violative of Articles 14 and 21.
E
The respondents had filed a writ petition before the High Court
challenging the constitutional validity of Section 18 of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which
was allowed. Aggrieved by the High Court's judgment the appellants
preferred the present appeal.
F
On behalf of the appellants it was contended that the offences
enumerated in the Act fell into a separate and special class; that the
offences arose out of the practice of "untouchability"; that exclusion of
Section 438 of the Code of Criminal Procedure, 1973 had to be viewed in
the context of prevailing social conditions; and that if anticipatory bail was G
granted to the offenders they were likely to terrorise their victims and
prevent a proper investigation.

On behalf of the respondents it was contended that while Section 438
of the Code was available for graver offences under the Indian Penal Code,
., 1860 it was not available for offences under the Act; that Section 438 of the H
897
898 SUPREME COURT REPORTS (1995) 1 S.C.R.

A code was an integral part of Article 21 of the Constitution; and that Section
18 of the Act was violative of Articles 14 and 21 of the Constitution.

Allowing the appeal, this Court

HELD : 1.1. The Sechduled Castes and Scheduled Tribes (Prevention
B of Atrocities) Act, 1989 was enacted in order to prevent the commission of
atrocities against members of Scheduled Castes and Scheduled Tribes and
to provide for special courts for the trial of offence under the Act as also
to provide for the relief and rehabilitation of victims of such offences.
Section 438 of the Code of Criminal Procedure, 1973 does not apply to any
C case involving arrest of any person accused of having committed any of
the offences under Section 18 of the Act. [901-D-E, 903-F]

1.2. 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 Act. [903-F]
D
1.3. The offences enumerated under the 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
E an offence punishable in accordance with law. The offences, therefore,
which are enumerated under Section 3(1) of the Act arise out of the
practice of "Untouchability". It is in this context that certain special
provisions have been made in the Ad, including the impugned provision
under Section 18 of· the Act. Exclusion of Section 438 of the Code of
Criminal Procedure in connection with offences under the said Act has to
F be viewed in the context of the prevailing social conditions which .give rise
to such offences, and the.apprehension 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 offende..S are allowed to
avail of anticipatory bail. [903-G-H, 904-A-B]

G 2.1. The Statement of Objects and Reasons accompanying the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill,
1989 graphically describes the social conditions which motivated the said
legislation. It is pointed out in the Statement of Objects and Reasons that
when members of the Scheduled Castes and Scheduled Tribes assert their
H rights and demand statutory protection, vested interest try to cow them
STATE v. R.K. BALOTHIA 899

down and terrorise them. In these circumstances, if anticipatory bail is not A
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. [904-C, 905-B]

2.2. Looking to the historical background relating to the practice of B
"Untouchability" and the social attitudes which lead to the commis~ion of
such offences 1J.gainst Scheduled Castes and Scheduled Tribes, there is
justification for an apprehension that if the benefit of anticipatory bail is
made available to the persons whe are alleged to have committed such
offences, there is every likelihood of their misusing their liberty while on C
anticipatory bail to terrorise their victims and to prevent a proper inves-
tigation. It is in this context that Section 18 has been incorporated in the
said Act. It cannot be considered to be in any manner violative of Article
21. [907-A-B]

3.1. Article 21 enshrines the right to live with human dignity, a pre- D
cious right to which every human-being is entitled; those who have been, for
centuries, denied this right, more so. It is difficult to accept 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 E
intrduction of a provision for grant ~f anticipatory bail. [905-D]

3.2. In the light of the recommendation of the Law Commission,
Section 438 was incorporated, for the first time, in the Criminal Procedure
Code of 1973. 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 F
Constitution. It cannot be considered as an essential ingredient nf Article
21 of the Constitution. And its non~application to a certain special category
of offences cannot be considered as violative of Article 21. [905-F-G]

Kartar Singh v. State of Punjab, JT (1994) 2 SC 423 and 41st Report G
of the Law Commission, referred te.

4. The offences which are enumerated under Section 3 of the Act are
offences which, to say the least, denigrate members of Scheduled Castes
and Scheduled Tribes in the eyes of society, and prevent them from leading
a life of dignity and self-respect. Such offences are committed to humiliate H
900 SUPREME COURT REPORTS [1995] 1 S.C.R.

A and subjugate members of Scheduled Castes and Scheduled Tribes with a
view to keeping them. in a state of servitude. These offences constitute a
separate class and cannot be compared with offences under the Penal
Code. [907-D]

Jai Singh and Anr. v. Union of India, AIR (1993) Rajasthan 177,
B approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1343 of
1995 etc. etc.

From the Judgment and Order dated 2?.3.94 of the Madhya Pradesh
C High Court in Misc. P. No. 1748 of 1993.
. U.N. Bachawat, Ms. Kitty Kumaramangalam, Y.P. Mahajan, P. Par-
meswaran, A.K. Srivastava, Ms. Sushma Suri, Sakesh Kumar, S.K. Ag-
" nihotri, Goutam Bose, Amitabh Verma, Ashok Mathur, K.M. Shukla, P.K.
D Manohar, Kartar Singh, M.S. Dahiya, S.K. Chaturvedi, C.S. Ashri, S.S.
Sharma, A.K. Sanghi, B.P. Singh and B.S. Banthia for the appearing
parties.

The Judgment of the Court was delivered by

E SUJATA V. MANOHAR, J. Special leave granted.

These appeals by special leave 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
I
judgment governing all these appeals. In the petitions which were filed by \

F the respondents here, before the High Court of Madhya Pradesh under '
Article 226 of the Constitution, the respondents and challenged the con-
stitutional 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
G 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 Cour! in respect of Section 18 of the
said Act.

H Section 18 of the Scheduled Castes and Scheduled Tribes (Preven-
(

STAIB v. R.K. BALOTHIA [SUJATA V. MONOHAR,J.] 901

tion of Atrocities) Act, 1989 is as follows : A
"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."
B
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 Session; for a direction that in the event of such
arrest, he shall be released on bail. We have to consider whether the denial
c
of this right to apply for anticipatory bail in respect of offences committed
under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, can be considered as violative of Articles 14 and 21
of the Constitution.
D
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 commission of atrocities against members of
Scheduled Castes and Scheduled Tribes and to provide for special courts
for the trial of offence under the said Ad as also to provide for the relief
and rehabilitation of victims of such offences. "Atrocity" has been defined E
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 :-
F
(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 eat any inedible or obnoxious substance;
G
(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 ob-
noxious substance in his premises or neighbourhood;

(iii) forcibly removes clothes from the person of a member H
902 SUPREME COURT REPORTS (1995] 1 S.C.R.

A of a Scheduled Caste or a Scheduled Tribe or parades him
naked or with painted face or body or commits any stmilar
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
B allotted to, a member of a Scheduled Caste and Scheduled
Tribe or get the land allotted to him transferred;

(v) wrongfully disposseses a member of Scheduled Caste or
a Scheduled Tribe from his land or premises or interferes
c with the enjoyment of his rights over any land, premises or
water;

(vi) compels or entices a member of a Scheduled Caste or a
Scheduled Tribe to do 'begar' or other similar forms of
forced or bonded labour other than any compulsory service
D for public purposes imposed by Government;

(vii) forces or intimidates a member of a Scheduled Caste or
a Scheduled Tribe not to vote or to vote to a particular "-·
candidate or to vote in a manner other than that provides by
law;
E
(viii) institutes false, malicious or vexatious suit or criminal
or other legal proceedings against a member of a Scheduled
Caste or a Scheduled Tribe;

F (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 Schedule Tribe;

(x) intentionally insults or intimidates with intent to humiliate
G a member of a Scheduled Caste or a Scheduled Tribe in any
place within public view;

(xi) assaults or uses force to any woman belonging to a
Scheduled Caste or a Scheduled Tribe with intent to
H dishonour or outrage her modesty;
STATE v. R.K. BALOTHIA [SUJATA V. MONOHAR,J.] 903

(xii) being in a position to dominate the will of a woman A
a
belonging to 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 B
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 any customary right of passage to a place of public C
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 D
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 E
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.
F
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
enumerated under the said Act fall into a separate and special class.
Article 17 of the Constitution expressly deals with abolition of "Un- G
touchability" and forbids its practice in any form. It also provides that
..I
enforcement of any disability arising out of "Untouchability" shall be an
offence punishable in accordance with law. The offences, therefore, which
are enumerated under Section 3(1) arise out of the practice of "Un-
touchability". It is in this context that certain special provisions have been H
904 SUPREME COURT REPORTS (1995] 1 S.C.R.

A 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 rise to such .-
offences, and the apprehension that perpetrators of such atrocities are
likely to threaten and intimidate their victims and prevent or obstruct them
B 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
c 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 socio-economic condi-
tions of the Scheduled Castes and the Scheduled Tribes, they
remain vulnerable. They are denied number of civil rights. They
D are subjected to various offences, indignities, humiliations and
harassment. They have, in several brutal incidents, been deprived ,J.,.
of their life and property. Serious crimes are committed against
them for various historical, social and economic reasons.

~
E 2. ............ When they assert their rights and resist practices of
untouchability against them or demand statutory minimum wages \.
or refuse to do any bonded and forced labour, the vested interests
try to cow them down and terrorise them. When the Scheduled
Castes and the Scheduled Tribes try to preserve their self-respect
F or honour of their women, they become irritants for the dominant '(

and the mighty. ·Occupation and cultivation of even the government
allotted land by t~e 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 ·~
G the Scheduled Castes persons eat inedible substances like human
excreta and attacks on and mass killings of helpless Scheduled
Castes and Scheduled Tribes and rape of women belonging to the I...

Scheduled Castes and the Scheduled Tribes ............. A special
legislation to sheck and deter crimes against them committed by
H non-Scheduled Castes and non-Scheduled Tribes has, therefore,
STATEv. R.K. BALOTHIA[SUJATA V. MONOHAR,J.] 905

become necessary." A
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 Scheduled Castes and
Scheduled Tribes assert their rights and demand statutory protection,
vested interests try to cow them down and terrorise them. In these cir- B
cumstances, 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 them-
selves and cannot be compared with other offences.

We have next to examine whether Section 18 of the said Act violates,
c
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 D
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 a provision for grant of anticipatory bail. It observed :-
E
"we agree that this would be a useful advantage. Though we must
add that it is in very 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 F
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 Constitu-
tion. It cannot be-considered as an essential ingredient of Article 21 of the G
Constitution. And its non-application to a certain special category of
offences cannot be considered as violative of ~tide 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 H
906 SUPREME COURT REPORTS [1995] 1 S.C.R.

A 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 there-
under. The language of Section 20(7) is almost identical with the language
B 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 Constitu-
tion and its removal from the Terrorists and Disruptive Activities (Preven-
tion) 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
C (paragraph 355) and said that there was no such provision in the old
Criminal Procedure Code and it was intoduced 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 from 28.11.1975. In the State of
D 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 7 years, without giving the State not less than seven days'
notice to present its case. A similar provision is also introduced by the State
E of Orissa. Where a person accused of a non-bailable offence is likely to
abscond or otherwise misuse his 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
F 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
G removal of Section 438 is violative of Article 21 ......... "

Its answer was in the negative. Section 20(7) of the Terrorists and Disrup-
tive Activities (Prevention) Act, 1987 was upheld.

H Of course, the offences enumerated under the present case are very
{
STATEv. R.K. BALOTHIA(SUJATA V.MONOHAR,J.] 907

different from those under the Terrorists and Disruptive Activities A
(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
B
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.
c
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 Seccion 3 are offences which, to say
the least, denigrate members of Scheduled Castes and Scheduled Tribes in
the eyes of society, and prevent them from leading a life of dignity and D
; self-respect. Such offences are committed to humiliate and subjugate mem-
bers of Scheduled Castes and Scheduled Tribes with a view to keeping
them in a state of servitude. These offences constitute a separate class and
cannot be compared with offences under the Penal Code.
E
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 177 and we respectfully agree with
its findings.

In the premises, Section 18 of the said Act cannot be considered as F
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.

v.s.s. Appeals allowed. G