SC refuses to stay Guj HC order granting anticipatory bail under SC/ST Act

The Supreme Court today refused to stay the anticipatory bail granted by the Gujarat High Court to two builders accused of land grabbing and atrocities against tribals, following the top court's recent verdict laying down safeguards to protect innocent citizens and public servants from the abuse of the stringent SC/ST Act.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud issued notice to the accused and the Gujarat Government on a plea seeking setting aside of grant of anticipatory bail under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

Senior advocate Dushyant Dave, appearing for Arjun Sankar Bhai Rathod, said the petitioner was a tribal and the accused builders had forged power of attorneys and took away the designated tribal land from him, while contending that bail was granted wrongly.

The High Court, relying on the recent Supreme Court judgement, had granted anticipatory bail to the accused, he said, adding that the apex court had diluted the "rigours" of the Act by allowing courts to entertain anticipatory bails in such cases.

The top court said it was issuing notice to the accused and will not stay the High Court order for the time being.

The judgment of the apex court, delivered on March 20, had laid down safeguards for prosecution of officers and common citizens under the SC/ST Act.

Dave alleged that the recent judgement was "per incuriam" as it overlooked another verdict delivered last year.

"(The case of) Manju Devi is a well-considered judgment in which it has said that 'FIR is malafide' is an argument that can be raised only during the stage of trial and not during the hearing of the anticipatory bail," he said.

Earlier during the day, the appeal against the Gujarat High Court order was listed before a bench of Justices R K Agrawal and A M Sapre and was later mentioned before the CJI as Justice Sapre recused.

Dave said the High Court order be stayed, otherwise, it may lead to more injustice. The plea was opposed by senior advocate A M Singhvi, who represented accused builders.

The court said it will only look into the "correctness of the HC order" of granting anticipatory bail. The High Court, on March 22, granted anticipatory bail to accused relying on the apex court verdict.

"It is respectfully submitted that the judgement as passed by the High Court is in complete in contravention of section 18 of the SC/ST Act which categorically bars application of section 438 (anticipatory bail) of CrPC in case an offence has been alleged to have been committed under the SC/ST Act," the plea said.

The apex court, in its recent verdict, protected honest citizens and public servants discharging bonafide duties from being blackmailed with false cases under the SC/ST Act. It apparently diluted stringent provisions of the law which mandates immediate arrest under it.

The top court had said that on "several occasions", innocent citizens were being termed as accused and public servants deterred from performing their duties, which was never the intention of the legislature while enacting the law.

It had said unless the exclusion of anticipatory bail is limited to "genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens".

"There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where, on judicial scrutiny, the complaint is found to be prima facie mala fide," the bench had held.

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