What are considerations for grant of anticipatory bail in case of SC & ST Atrocities offences after amendment in S18 of said Act?

 The Supreme Court has established specific considerations for granting anticipatory bail in SC & ST Atrocity cases following the 2018 amendment to Section 18 of the Act. Here are the key considerations:

Prima Facie Case Requirement

The primary consideration is whether a prima facie case under the SC & ST Act has been established against the accused. The Supreme Court in Shajan Skaria v State of kerala  2024 SCC OnLine SC 2249 clarified that the bar on anticipatory bail under Section 18 does not apply unless a prima facie case under the Act is made out.

Courts must conduct a preliminary inquiry to determine whether the allegations meet the criteria for an offense under the Act before applying Section 18. If the complaint or FIR does not reveal the essential elements needed to constitute an offense under the Act, then no prima facie case exists.

Essential Ingredients of Section 3 Offenses

Courts must examine whether the allegations disclose the essential ingredients of offenses under Section 3 of the Act. For cases under Section 3(1)(r), which deals with intentional insult or intimidation, the Court must assess whether there was intent to humiliate based on caste identity.

The Supreme Court emphasized that mere insult of a member of SC or ST is not an offense under the Act unless the accused had the intention to humiliate based on caste identity. Simply knowing the victim's SC/ST status is not sufficient; the insult must be intended to humiliate based on caste.

Distinction Between General and Caste-Based Insult

A crucial consideration is distinguishing between insulting an individual who belongs to SC/ST community versus insulting them because they belong to SC/ST community. Only intentional insult or intimidation caused by entrenched social norms like untouchability or caste superiority qualifies as the type of insult envisioned by the Act.

Impact of 2018 Amendment

The 2018 amendment added Section 18-A, which states that no preliminary inquiry is required before FIR registration and no approval is needed for arrest. Additionally, it reasserts the inapplicability of Section 438 of the CrPC to cases under the Act.

However, despite this amendment, the Supreme Court has maintained that if a complaint does not establish a prima facie case under the Act, the bar created by Sections 18 and 18-A(i) would not apply, allowing courts to grant pre-arrest bail.

Judicial Scrutiny Standards

Courts can grant anticipatory bail if, after prima facie examination of the complaint and supporting materials, the elements required to constitute the offense are not present. The expression "arrest of any person" in Section 18 only restricts anticipatory bail when a legitimate arrest can be made under Section 41, read with Section 60A of the CrPC.

The Supreme Court noted that courts should examine the complaint's material to verify its claims, and if the prima facie ingredients are not established, Section 18 does not apply, allowing consideration of pre-arrest bail on its merits.

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