How to File Pre-Arrest Bail before High Court in SC & ST Atrocities Case

The Patna High Court on October 27, 2016 in Raghav Nath Jha v. State of Bihar held that unless there is an order of Special Court refusing or granting pre-arrest bail, under Section 438 of the Code, the accused cannot invoke the power of the High Court, under Section 438 of the Code, to grant pre-arrest bail.

A Division Bench comprising of Chief Justice Iqbal Ahmed Ansari and Justice Ashwani Kumar Singh observed that existence of an order of the Special Court or the Exclusive Special Court is a sine qua non for approaching the High Court in appeal.

The provisions, prescribed under Section 14-A of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 have an overriding effect over the provisions of the Code in view of the provisions prescribed under Section 4(2) of the Code, the Court said.

# Special Court

In order to obtain an order under Section 438 of the Code, an accused is required to, first, apply to the Special Court or the Exclusive Special Court, as the case may be, and he can, thereafter, prefer an appeal against an order refusing bail if his application for is rejected by such Court.

Similarly, even the State can prefer an appeal if the Special Court or the Exclusive Special Court, as the case may be, allows an application for pre- arrest bail made under Section 438 of the Code, to such an accused person.

Further, unless there is an order of the Special Court or the Exclusive Special Court granting or refusing bail, the accused will have no right to file an appeal before the High Court for grant of pre-arrest bail.

While answering the issues involved in the applications the High thus held that in a case instituted under the provisions of the Act, an accused, apprehending his arrest, cannot directly file an application, under Section 438 of the Code, seeking pre-arrest bail before High Court as the provisions, prescribed under Section 14-A(1) and (2) of the Act, like Section 34(1) and (4) of the POTA, are in clear contradistinction to that of the Code, where no appeal is provided against an order granting or refusing bail.

Hence, an appeal can lie only against an order of the Special Court or the Exclusive Special Court, as the case may be. The accused will have no right to directly file an application under Section 438 of the Code before High Court for grant of pre-arrest bail.

The Division Bench determined following questions.

  • (i) Whether a person, accused of committing an offence under the Act, is specifically barred from the benefit of statutory provisions of pre-arrest bail provided in Section 438 of the Code?
  • (ii) Whether a Court of Session or the High Court, while dealing with an application for grant of pre-arrest bail, is allowed to scrutinize the relevant materials with a view to find out whether any offence, under the Act, has been made out or not?
  • (iii) Whether an application, under Section 438 of the Code, for grant of pre-arrest bail can be maintained with respect to a person, who is an accused in a case registered for the offence punishable, under the various provisions of the Act, if such a person is in a position to satisfy the court that even on the basis of allegations contained in the First Information Report or Complaint petition, no ingredient of commission of any offence, under the provisions of the Act, is made out against him ?
  • (iv) Whether an application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act ?
  • (v) Whether consequent upon introduction of Section 14-A by way of the Amendment Act, 2015, in the Act, an appeal would be maintainable against an order passed on an application filed in the court below, under Section 438 of the Code, in a case instituted under the provisions of the Act ?
  • (vi) Whether an accused, apprehending his arrest in a case instituted under the provisions of the Act, can directly file an application under Section 438 of the Code before the High Court ?

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