They argued that they are challenging the validity of Section 18 A of the Act.
New Delhi: The Supreme Court on Friday refused to stay at this stage the amendments made to the Scheduled Cast-es/Scheduled Tribes (Atrocities Protection) Act to deny anticipatory bail to the accused and the scope for any preliminary probe into the complaints.
A Bench of Justices A.K. Sikri and Ashok Bhushan, after hearing senior counsel Mohan Parasaran issued notice to the Centre seeking its reply within six weeks. When counsel pointed out that the amendments were made without removing the basis of the judgment, Justice Sikri agreed with him and said this required examination.
The Bench also noted that it was also not a validation Act. When counsel pressed for stay on the ground that an accused could not be eligible for anticipatory bail, the Bench said, “No stay can be granted without hearing the government.”
In their petitions, Prathvi Raj Chauhan and Sanjeev Babanrao Bhor pointed out that the March 20 verdict providing for anticipatory bail and preliminary enquiry into the complaints. This judgment faced a nationwide protest of political groups just to take advantage in upcoming election, in the face of protests government filed review petition which is still pending.
Thereafter a rare move was adopted by the central government, to get the political mileage and under pressure from alliance partner and also worried over the prospects of antagonizing huge vote bank ahead of next year Lok Sabha elections, The Government decided to amend this Act and restored the previous provisions in such a manner, so that an innocent can’t access to avail the right of Anticipatory bail. It is pertinent to mention here that, in both the Houses of Parliament this amendment was passed by the voice vote, without any discussion or debate.
They argued that they are challenging the validity of Section 18 A of the Act. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 amendment Act 2018, whereby the fundamental right of the citizen has been taken away as new amended section 18 A bars application of Section 438 of Cr.P.C as well as any judgment or order or directions passed by this Court.
Further preliminary enquiry shall not be required for registration of a First Information Report against any person; or the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. The provisions of section 438 of the Cr.P.C. relating to anticipatory bail shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.
The effect of this draconian provision is that once any citizen of this country is charged under atrocity act he will be immediately arrested without following due process of law or preliminary inquiry envisaged under section 41 of Cr.P.C and he is barred from applying for anticipatory bail. It is astonishing to note that, in our country, even murder accused can get the benefit of the anticipatory bail but a person charged under atrocity act cannot get the said benefit and thus the present amendment is most draconian, barbaric and destroy the very basic structure of Constitution as it takes away liberty of the person to apply for anticipatory bail.
Furthermore, the aforesaid section 18A is in serious contravention of recent judgment of the Supreme Court in the matter of Dr. Subhash Kashinath Mahajan Vs State of Maharashtra and Anr. It is submitted that Section 18(a) of the Act is ultra-vires to the Constitution as it stays the orders and directions passed by this Court under Article 142 of the Constitution, they contended and prayed for quashing the amendment provision and an interim stay of its operation.