Bail — Section 18 (Bar on Anticipatory Bail) and Subhash Kashinath Mahajan Aftermath

Few provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 have generated as much constitutional, social and political heat as Section 18 — the clause that ousts the anticipatory-bail jurisdiction of Section 438 of the Code of Criminal Procedure, 1973 for anyone accused of an atrocity. The provision is the procedural backbone of the Act's deterrent design: a person accused of a caste atrocity cannot, as a rule, secure pre-arrest protection. Yet the bar is not absolute. Through State of M.P. v. Ram Krishna Balothia, Vilas Pandurang Pawar v. State of Maharashtra, the controversial dilution in Dr. Subhash Kashinath Mahajan v. State of Maharashtra, the Parliamentary override that inserted Section 18A, the recall in Union of India v. State of Maharashtra, the validation in Prathvi Raj Chauhan v. Union of India and the recent refinement in Shajan Skaria v. State of Kerala, the law has settled on a single fulcrum — the prima facie test. This chapter traces that arc in full, and explains exactly when the bar bites and when a court may still grant pre-arrest bail.

Section 18 — The text and the design

Section 18 of the SC/ST Act is terse and emphatic. It provides that "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." The provision does two things at once. First, it lifts the ordinary anticipatory-bail jurisdiction entirely out of the field; the court is denuded of the power conferred by Section 438 CrPC the moment the accusation is one under the Act. Second, by its non-obstante framing it overrides the general scheme of the Code, so that an accused cannot, by clubbing an atrocity charge with ordinary IPC offences, smuggle the matter back into the anticipatory-bail forum.

The legislative rationale is unambiguous. Caste atrocities are committed against the most vulnerable, often by socially or economically dominant accused who are well-placed to threaten, intimidate or buy off the complainant. If such an accused could obtain anticipatory bail and remain at large, the prosecution would frequently collapse at the threshold. The bar is therefore a deliberate procedural deterrent, and it operates alongside the substantive offences discussed in our notes on punishments for offences of atrocities and on the catalogue of specific offences under Section 3.

Crucially, Section 18 does not touch regular bail under Section 437 or Section 439 CrPC. An accused who is actually arrested may still apply for ordinary bail; what is foreclosed is the pre-arrest remedy. The distinction matters because the entire jurisprudence below turns on the narrow question of when, if ever, a court may grant anticipatory bail despite Section 18.

Constitutional validity — Ram Krishna Balothia (1995)

The first major test came in State of M.P. v. Ram Krishna Balothia, (1995) 5 SCC 437 (AIR 1995 SC 1198), decided on 6 February 1995 by a two-judge Bench of Sujata V. Manohar and B.P. Jeevan Reddy, JJ. The Madhya Pradesh High Court had struck down Section 18 as violative of Articles 14 and 21, reasoning that to deny anticipatory bail only to atrocity-accused, while preserving it for those facing graver IPC offences, was arbitrary and unequal.

The Supreme Court reversed. It held that offences under the Act form a distinct class. They are committed against members of Scheduled Castes and Scheduled Tribes on the ground of their caste identity, in a milieu of entrenched social inequality, and the legislative apprehension that perpetrators will use their liberty to terrorise victims is a real and rational basis for differential treatment. The classification, the Court held, bore a clear nexus to the object of the Act and did not offend Article 14. Nor did the denial of anticipatory bail violate Article 21: anticipatory bail is not part of the basic fabric of personal liberty, and its withdrawal in a defined class of cases is a permissible legislative choice. Balothia thus settled, for a quarter-century, that the Section 18 bar is constitutionally sound — a point later reaffirmed when Section 18A came to be challenged.

The prima facie gateway — Vilas Pandurang Pawar (2012)

While Balothia upheld the bar, courts soon confronted a practical problem: complaints sometimes invoke the Act without disclosing any ingredient of an atrocity, simply to deprive the accused of anticipatory bail. The corrective came in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795. The Supreme Court held that Section 18 creates "a specific bar to the grant of anticipatory bail to a person against whom any offence is registered under the provisions of the Act, and, therefore, no court shall entertain an application for anticipatory bail unless it prima facie finds that such an offence is not made out."

The decision casts a positive duty on the court: it must scrutinise the averments in the FIR or complaint to determine whether the ingredients of a Section 3 offence are prima facie disclosed. If they are, the bar of Section 18 operates absolutely and the anticipatory-bail application cannot even be entertained. If, on a reading of the complaint as a whole, no offence under the Act is made out, Section 18 does not stand in the way and the court may consider pre-arrest bail on ordinary principles. This prima facie test — examining only the complaint, without a roving inquiry into the merits or the defence — became the controlling gateway and survives, in refined form, to this day.

The dilution — Subhash Kashinath Mahajan (2018)

The settled position was upended on 20 March 2018 in Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 (AIR 2018 SC 1498), decided by a two-judge Bench of Adarsh Kumar Goel and Uday Umesh Lalit, JJ. Moved by what it perceived as widespread misuse of the Act against public servants and private persons through false complaints, the Court read into the statute a battery of safeguards that the text did not contain.

The Court directed: (i) that there would be no absolute bar on anticipatory bail under Section 18 — anticipatory bail could be granted where no prima facie case was made out, or where on judicial scrutiny the complaint was found to be mala fide; (ii) that for a public servant, arrest could be effected only after written approval of the appointing authority, and for a private person only after written approval of the Senior Superintendent of Police, with reasons recorded; and (iii) that a preliminary inquiry by a Deputy Superintendent of Police should ordinarily precede registration of an FIR, to ascertain whether the allegations disclosed an offence under the Act and were not frivolous or motivated.

While the Bench framed these as anti-misuse filters, the effect was to graft onto the Act procedural conditions — preliminary inquiry, prior approval, a relaxed anticipatory-bail standard — that significantly diluted its deterrent force. The judgment provoked an immediate and intense backlash among Scheduled Caste and Scheduled Tribe communities.

The aftermath — protest, politics and the 2018 Amendment

The reaction to Mahajan was extraordinary. A nationwide Bharat Bandh was called; protests erupted across several states, and the agitation was marred by violence and a number of deaths. The perception within the affected communities was that the Court had, in the guise of curbing misuse, hollowed out the only law specifically enacted for their protection — undercutting the protective-discrimination mandate of Article 15(4). The Union Government filed a review petition, but did not wait for its outcome.

Parliament intervened directly. Through the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, brought into force on 20 August 2018, it inserted a new Section 18A expressly to nullify each of the Mahajan directions. The legislative override is a textbook example of the dialogue between the judiciary and the legislature: where the Court read in safeguards, Parliament wrote them out. The amendment must be read together with the object and constitutional foundation of the Act, set out in our notes on the introduction, constitutional background and object of the legislation.

Section 18A — Parliament's override

Section 18A, headed "No enquiry or approval required", provides that for the purposes of the Act — (1) preliminary enquiry shall not be required for registration of a First Information Report against any person; and (2) 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 the Act has been made, and no procedure other than that provided under the Act or the Code shall apply. The provision then adds, in unmistakable terms, that "the provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."

The drafting is surgical. The phrase "notwithstanding any judgment or order or direction of any Court" is aimed squarely at Mahajan: it restores the absolute character of the Section 18 bar and erases, in one stroke, the preliminary-inquiry requirement, the prior-approval-for-arrest requirement and the relaxed anticipatory-bail standard. Section 18A thus reinforces, rather than replaces, Section 18 — the two now operate in tandem, with 18A closing the doors that Mahajan had opened.

The recall — Union of India v. State of Maharashtra (2019)

The review petition against Mahajan was finally decided on 1 October 2019 in Union of India v. State of Maharashtra, (2020) 4 SCC 761, by a three-judge Bench of Arun Mishra, M.R. Shah and B.R. Gavai, JJ. The Court partially recalled the directions issued in Mahajan, holding that they were beyond the scope of permissible interpretation and offended the protective-discrimination guarantee of Article 15(4) in favour of the most disadvantaged sections.

The Bench made three key points. First, it held that the directions for preliminary inquiry and prior approval before arrest could not have been issued, since they had no foundation in the statute and effectively rewrote it under the colour of Article 142 — a power that cannot be used to legislate. Second, it observed that the apprehension of misuse, even if occasionally real, could not justify diluting a beneficial enactment for an entire class; misuse of any law is to be addressed case by case, not by reading down the law itself. Third, it reaffirmed that the proper safeguard against a false complaint already exists — the power of the High Court under Section 482 CrPC (and Article 226) to quash proceedings where, on the face of it, no offence under the Act is made out. The recall thus restored the pre-Mahajan position and aligned the case law with the freshly enacted Section 18A.

Validity of Section 18A — Prathvi Raj Chauhan (2020)

The constitutionality of the 2018 Amendment was then tested in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 (2020 SCC OnLine SC 159), decided on 10 February 2020 by a three-judge Bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ. The petitioners contended that Section 18A — by ousting preliminary inquiry, dispensing with approval before arrest and barring anticipatory bail "notwithstanding any judgment" — permitted automatic arrest and violated Articles 14, 19 and 21.

The Court upheld Section 18A. Following the recall in Union of India v. State of Maharashtra, the majority observed that the provisions of Section 18A were rendered largely academic, since they had been enacted only to neutralise the Mahajan directions, which no longer prevailed. Critically, however, the Court did not read Section 18A as creating a wholly unqualified bar. It held that "if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by sections 18 and 18A(i) shall not apply." In other words, the Vilas Pandurang Pawar gateway survives the amendment intact: the absolute bar attaches only once a prima facie offence under the Act is disclosed.

Justice S. Ravindra Bhat, in a concurring opinion, added an important gloss. He held that in exceptional cases — where the complaint on its face does not disclose any offence under the Act, or is manifestly mala fide — the constitutional and inherent powers of the court remain available, and the High Court may grant pre-arrest bail or quash proceedings under Section 482 CrPC. Such relief, he stressed, must be exercised sparingly and only in the rarest of cases, lest the protective purpose of the Act be defeated.

The operative test today

Distilled across Vilas Pandurang Pawar, Union of India v. State of Maharashtra and Prathvi Raj Chauhan, the law on anticipatory bail under the Act can now be stated as a clear two-step inquiry. Step one: the court reads the FIR or complaint as a whole and asks whether the averments prima facie disclose the ingredients of an offence under Section 3. This is a threshold reading of the allegations, not a mini-trial — the court does not weigh evidence, assess probabilities or examine the defence. Step two: if a prima facie offence under the Act is disclosed, Sections 18 and 18A operate as an absolute bar and the anticipatory-bail application cannot be entertained at all; if, on the other hand, no offence under the Act is made out on the face of the complaint, the bar does not apply and the court is free to consider pre-arrest bail on ordinary Section 438 principles.

The residual safety valve lies outside Section 438 altogether: where the complaint is patently false, frivolous or mala fide and discloses no atrocity, the High Court may quash the proceedings or grant relief under Section 482 CrPC and Article 226 — but only in exceptional cases. This architecture preserves the deterrent force of the bar while leaving a narrow constitutional escape for genuine abuse of process.

The latest refinement — Shajan Skaria (2024)

The most recent and instructive application of the prima facie test is Shajan Skaria v. State of Kerala, 2024 INSC 625, decided in August 2024. Skaria, the editor of an online news channel, had published a video levelling allegations against a sitting MLA who belonged to a Scheduled Caste. An FIR was registered under Sections 3(1)(r) and 3(1)(u) of the Act — the offences of intentional insult or intimidation with intent to humiliate in public view, and promotion of ill-will against members of Scheduled Castes — and his anticipatory-bail plea was rejected by the High Court on the strength of Section 18.

The Supreme Court granted anticipatory bail, holding that the bar under Section 18 is attracted only when a prima facie case under the Act is actually made out, and that on the facts no such case was disclosed. The Court clarified an important ingredient: the mere knowledge that the victim belongs to a Scheduled Caste or Scheduled Tribe is not sufficient to attract Section 3(1)(r). The offence requires that the insult or intimidation be inflicted because the victim is a member of such a community — that is, on the ground of caste identity. Where the alleged utterances are referable to the victim's public conduct rather than to his caste, the ingredient of caste-based humiliation is absent and the bar does not bite. Shajan Skaria thus demonstrates the prima facie test in live operation, and reinforces that the bar is calibrated to the genuine ingredients of an atrocity rather than to the bare invocation of the Act. The ingredients it examines are those analysed in our notes on the definitions of atrocity, SC and ST.

Section 18 and regular bail — a vital distinction

Aspirants frequently conflate the Section 18 bar with a general denial of bail. It is neither. Section 18 (and 18A) ousts only the anticipatory-bail jurisdiction under Section 438 CrPC. An accused who has actually been arrested retains the full right to apply for regular bail under Sections 437 and 439 CrPC, and such an application is governed by the ordinary considerations — gravity of the offence, likelihood of tampering with evidence or influencing witnesses, antecedents and the like. The Act erects no special bar to post-arrest bail.

This distinction explains why the deterrent design works as intended: the dominant accused cannot insulate himself before arrest and thereby intimidate the complainant during investigation, yet once the investigative machinery has secured custody and recorded the victim's account, the ordinary bail jurisdiction reasserts itself. The bar is targeted at the period of greatest vulnerability for the victim, not at liberty in perpetuity.

Procedural context — arrest, investigation and special courts

The anticipatory-bail bar does not operate in isolation. It is part of a wider procedural code that, post-2018, requires no preliminary inquiry before FIR registration and no prior approval for arrest, and that channels trials into Special Courts and Exclusive Special Courts designated under the Act. The same scheme imposes affirmative duties on the State machinery — duties whose breach is itself an offence, as discussed in our notes on the punishment for neglect of duties by a public servant. A police officer who wilfully neglects his statutory duties under the Act is criminally liable, which underscores that the procedural rigour cuts in favour of effective enforcement, not merely against the accused.

For the offences that trigger this procedural apparatus, including the enhanced and aggravated categories, see our notes on aggravated forms of atrocity. The complete map of the subject is set out on the SC/ST (Prevention of Atrocities) Act hub.

Examination pointers and common traps

For judiciary and CLAT-PG candidates, the chronology is the single most examinable thread, and it must be reproduced precisely: Balothia (1995) upheld the validity of Section 18; Vilas Pandurang Pawar (2012) introduced the prima facie gateway; Mahajan (2018) diluted the bar with preliminary inquiry, prior-approval and relaxed-bail directions; the 2018 Amendment (in force 20 August 2018) inserted Section 18A to override Mahajan; Union of India v. State of Maharashtra (1 October 2019) recalled the Mahajan directions; and Prathvi Raj Chauhan (10 February 2020) upheld Section 18A while preserving the prima facie exception. Shajan Skaria (2024) is the contemporary application.

Three traps recur. First, candidates wrongly state that the bar is now wholly absolute — it is not; the prima facie exception from Vilas Pandurang Pawar was expressly preserved in Prathvi Raj Chauhan. Second, candidates confuse anticipatory bail with regular bail — only the former is barred. Third, candidates misattribute the recall: it was Union of India v. State of Maharashtra (the review), not Prathvi Raj Chauhan, that recalled the Mahajan directions; Prathvi Raj Chauhan dealt with the validity of the amendment. Get the actor right for each step and the answer writes itself.