SC & ST (Prevention of Atrocities) Act
Section 18: The Bar on Anticipatory Bail
Anticipatory bail protects a person from arrest before it happens. In most crimes, that protection is an important safeguard against false cases. In atrocity cases, Parliament judged the risk differently: an accused who is powerful in the village, and free from the fear of arrest, is well placed to threaten the victim and the witnesses into silence. Section 18 therefore takes anticipatory bail away for offences under the Act. The Supreme Court upheld the bar in Balothia, but has also held, from Vilas Pawar to Prathvi Raj Chauhan, Shajan Skaria and Kiran, that the bar applies only where the complaint discloses a prima facie offence under the Act. This note explains the bar, its purpose and validity, the court's limited scrutiny, and how anticipatory bail differs from regular bail under the Act.
Figure 1: Is anticipatory bail barred? The Section 18 test
1. The Statutory Text
Section 18 Section 438 of the Code not to apply to persons committing an offence under the Act.— 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. |
Section 18A(2), inserted in 2018 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. |
Exclusion of Section 438 CrPC and the BNSS
Section 18 names Section 438 of the Code of Criminal Procedure, 1973, the anticipatory bail provision. The CrPC has been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023, where anticipatory bail is in Section 482. The Act has not been amended to refer to the BNSS. Under Section 8 of the General Clauses Act, a reference to a repealed provision is ordinarily read as a reference to the provision that re-enacts it, which would carry the bar over to Section 482 BNSS. The High Courts are divided. The Kerala High Court has held that Section 482 BNSS is excluded where a prima facie case is made out (Athul P. v. State of Kerala, 2026), while the Allahabad High Court has held that the Section 18 bar does not apply to an application under Section 482 BNSS (Dinesh Kumar Srivastava v. State of U.P., 2025). Until the Supreme Court or Parliament settles the point, local precedent must be checked.
2. Purpose of Section 18
- Protection of victims and witnesses. Those accused of atrocities are often socially and economically dominant. Freedom from arrest gives them room to threaten, bribe or boycott the victim into withdrawing.
- Deterrence. The prospect of arrest is itself a deterrent against caste violence.
- Investigation. Custody may be needed to recover weapons, identify co-accused, and prevent tampering, especially in collective crimes.
- The legislative judgment. As Balothia recognised, Parliament was entitled to treat atrocity offences as a class in which pre-arrest protection would too often be used to delay and derail prosecutions.
3. Constitutional Validity
📖 State of Madhya Pradesh v. Ram Krishna Balothia, (1995) 3 SCC 221 (decided 6 February 1995) Facts: The Madhya Pradesh High Court struck down Section 18 as violating Articles 14 and 21, on the view that denying anticipatory bail for one class of offences was arbitrary and deprived accused persons of liberty. Held: A bench of B.P. Jeevan Reddy and Sujata V. Manohar, JJ. allowed the State's appeals and upheld Section 18. The offences under the Act 'fall into a separate and special class'; those accused of them are likely to threaten and intimidate their victims and obstruct prosecution. Anticipatory bail is a statutory right, not 'an essential ingredient of Article 21', and its denial for a special category of offences does not violate Article 21. Ratio: Section 18 is a valid classification: atrocity offences form a distinct class, and there is no fundamental right to anticipatory bail. |
💡 Analogy: the umbrella and the storm Anticipatory bail is an umbrella the law hands out before the rain. Section 18 takes the umbrella away in one kind of storm, because in that storm the person under the umbrella tends to push others into the rain. But if there is no storm at all, if the complaint discloses no atrocity, there is nothing to take the umbrella away for. |
4. The Prima Facie Test
Figure 2: Section 18 and anticipatory bail in the Supreme Court
The court must examine whether a prima facie offence exists
📖 Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 (decided 10 September 2012) Facts: In a dispute over rainwater flowing into fields, the complainant's family, belonging to a Scheduled Caste, alleged that they were abused by caste name and assaulted. The accused sought anticipatory bail. Held: A bench of P. Sathasivam and Ranjan Gogoi, JJ. (per Sathasivam, J.) refused anticipatory bail. Section 18 bars Section 438, but 'a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out'. Where the complaint specifically alleges insult or intimidation with intent to humiliate by caste name, the accused is not entitled to anticipatory bail. The scope for appreciating evidence at this stage is limited. Ratio: No court shall entertain anticipatory bail unless it prima facie finds that an offence under the Act is not made out. |
Anticipatory bail where no prima facie atrocity offence is made out
In Prathvi Raj Chauhan v. Union of India (2020), Arun Mishra, J., for the Court, held: '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 section 18 and 18A (i) shall not apply.' S. Ravindra Bhat, J., concurring, added that the High Court's power to grant pre-arrest bail in such cases must be used sparingly, in very exceptional cases where no prima facie offence is shown in the FIR, and where refusal would result in a miscarriage of justice or abuse of process.
Facial examination of the FIR and the material
📖 Shajan Skaria v. State of Kerala, 2024 INSC 625 (decided 23 August 2024) Facts: The editor of a YouTube news channel was booked under Section 3(1)(r) and (u) for a video attacking P.V. Sreenijin, an MLA belonging to a Scheduled Caste, as a 'mafia don'. The Kerala High Court refused anticipatory bail, holding the Section 18 bar applicable. Held: A bench of J.B. Pardiwala and Manoj Misra, JJ. (per Pardiwala, J.) granted anticipatory bail. 'Prima facie' means 'at first sight'; the bar applies only where, on first impression, an offence is made out as shown in the FIR or complaint. The courts have a duty to determine prima facie existence 'with a view to ensure that no unnecessary humiliation is caused to the accused', and should not shy away from checking whether the narration of facts discloses the essential ingredients. Courts may look at the materials on which the complaint is based, such as the video transcript, in addition to the averments. On the facts, the video did not show intent to humiliate on account of caste. Ratio: The Section 18 bar applies only where prima facie materials point to an offence under the Act; courts must examine the complaint and its material to decide that. |
No mini-trial
📖 Kiran v. Rajkumar Jivraj Jain, 2025 INSC 1067 (decided 1 September 2025) Facts: The complainant, a Scheduled Caste member, had refused to vote for a candidate supported by the accused. He was attacked with an iron rod outside his house and abused with caste slurs, and women of his family were threatened. The Bombay High Court granted anticipatory bail. Held: A three-judge bench (B.R. Gavai, CJI, K. Vinod Chandran and N.V. Anjaria, JJ.) set aside the anticipatory bail. Section 18 creates a bar in absolute terms where the complaint discloses the ingredients of an offence under the Act. At this stage the court cannot undertake a detailed evaluation of evidence, hold a mini-trial, or weigh witness testimony. The FIR disclosed offences under the Act, including retaliation for the manner of voting, in a place within public view, so granting anticipatory bail was a clear illegality. Ratio: Where the complaint discloses the ingredients, the bar is absolute; doubts about the truth of the allegations are for trial, not for the anticipatory bail court. |
Prima facie case versus appreciation of evidence
- What the court may do. Read the FIR, the complaint and the material relied on, and ask whether, if taken at face value, they disclose each ingredient of the offence alleged under the Act.
- What the court may not do. Weigh the credibility of witnesses, prefer the accused's version, or resolve disputed facts. That is appreciation of evidence, reserved for trial.
- The line. Absence of an ingredient on the face of the record is for the anticipatory bail court (Shajan Skaria). Doubt whether an ingredient that is alleged is true is for the trial (Kiran).
5. Specific Ingredients at the Anticipatory Bail Stage
- Ingredients of Section 3. The court checks the clause invoked: that the accused is not a member of a Scheduled Caste or Scheduled Tribe, that the victim is, and the specific conduct required.
- Mechanical addition of sections. Adding a clause of the Act to an FIR does not by itself trigger the bar. Where the facts narrated do not match the ingredients of the clause, the bar does not apply (Prathvi Raj Chauhan, Shajan Skaria). The Bombay High Court has held that the bar does not extend to co-accused against whom there are no caste-related allegations (Yogitabai v. State of Maharashtra, 2026).
- Public view. For clauses (r) and (s), if the FIR itself places the incident inside a house or office with no independent public present, the ingredient is absent on its face, and the bar does not apply (Topic 19). If the FIR says public persons were present, whether they really were is for trial (Kiran).
- Caste nexus. For clause (r), the complaint must disclose intent to humiliate on account of caste; mere knowledge of caste is not enough (Shajan Skaria). For knowledge-based clauses, such as Section 3(2)(va), the material must show knowledge of the victim's identity, a principle the Supreme Court applied at the charge stage in Dr Anand Rai (2026) and which applies equally when testing for a prima facie case.
⚠ Limited judicial scrutiny cuts both ways Courts must not rubber-stamp the bar merely because atrocity sections appear in the FIR. Equally, they must not use the prima facie test as a backdoor to decide the case on merits. The Supreme Court has now corrected errors in both directions: refusal where no offence was disclosed (Shajan Skaria), and grant where an offence was disclosed (Kiran). |
6. Anticipatory Bail versus Regular Bail under the Act
Figure 3: Anticipatory bail and regular bail under the Act
- Regular bail is not barred. Section 18 excludes only anticipatory bail. After arrest or surrender, the accused may apply for regular bail to the Special Court, decided on the usual considerations: gravity, antecedents, risk to the victim and witnesses, and likelihood of absconding.
- Victim's rights apply to both. The victim must be given notice of, and heard in, any bail proceeding (Section 15A(3) and (5); Hariram Bhambhi, 2021).
- Forum. High Courts differ. The Punjab and Haryana High Court requires the accused to approach the Special Court first, while a Division Bench of the Andhra Pradesh High Court has held that, where no prima facie case under the Act is disclosed, anticipatory bail is maintainable before the High Court only (Vidadala Rajani v. State of A.P., 2025).
7. Section 14A Appeal from Anticipatory Bail Orders
An order of the Special Court granting or refusing anticipatory bail is an order 'granting or refusing bail', appealable to the High Court under Section 14A(2) within ninety days (Kailash v. State of U.P., Allahabad High Court, 2022). The victim, too, may challenge an order granting anticipatory bail, and must be heard in the appeal. In Kiran (2025), it was the victim who took the High Court's grant of anticipatory bail to the Supreme Court.
8. Quick Revision and Memory Aids
- 'No 438; 482 disputed'. Section 18 excludes Section 438 CrPC; whether it reaches Section 482 BNSS divides the High Courts.
- 'Balothia: special class, no Article 21 right'. Validity upheld (1995).
- 'Vilas: verify the averments'. The court's duty to check for a prima facie offence (2012).
- 'Chauhan: no prima facie case, no bar'. Prathvi Raj Chauhan (2020).
- 'Skaria: look at the material'. Courts may examine the material behind the complaint (2024).
- 'Kiran: no mini-trial'. Where the ingredients are disclosed, the bar is absolute (2025).
- 'Absent on the face, for the bail court; disputed in fact, for the trial'. The dividing line.
9. Frequently Asked Questions
Is anticipatory bail ever available in a case registered under the Act?
Yes, where the complaint, read as it stands with its material, does not disclose the ingredients of any offence under the Act. Then the bar is not attracted.
Can the court grant anticipatory bail because the allegations look false?
No. If the allegations disclose the ingredients, their truth is for trial. The accused may seek regular bail after arrest, or quashing in an exceptional case.
Does Section 18 bar regular bail?
No. It bars only anticipatory bail.
The FIR invokes Section 3(1)(r), but the incident occurred inside the complainant’s house with only family present. Is anticipatory bail barred?
On the FIR's own account, the public view ingredient is missing, so the prima facie offence under clause (r) is not made out and the bar should not apply.
Who can appeal an order granting anticipatory bail?
The State and the victim, under Section 14A(2), within ninety days.
10. Related Topics and Provisions
- Topic 19: Section 3(1)(r). Public view and caste intent.
- Topic 30: Section 14A. Bail appeals.
- Topic 35: Section 18A. The 2018 amendment and Prathvi Raj Chauhan.
- Sections 18, 18A(2), 14A(2), 15A(3), (5); Section 482 BNSS. The provisions discussed