Section 18A: No Preliminary Enquiry, No Prior Approval

In March 2018, the Supreme Court, concerned about false cases, added three safeguards to the SC/ST Act by judicial direction: a preliminary enquiry by a Deputy Superintendent of Police before registering an FIR, approval of a senior authority before any arrest, and anticipatory bail where no prima facie case was made out. The decision provoked nationwide protest. Within five months, Parliament inserted Section 18A to undo the first two directions and to reaffirm the bar on anticipatory bail. In 2019 the Court recalled its arrest and enquiry directions in review, and in 2020, in Prathvi Raj Chauhan, it upheld Section 18A while keeping the courts' power to check for a prima facie case. This note explains Section 18A, its history, what it removes and what it leaves in place.

From Mahajan to Prathvi Raj Chauhan

Figure 1: From Mahajan to Prathvi Raj Chauhan

1. The Statutory Text

Section 18A, inserted by Act 27 of 2018 (in force 20 August 2018)

(1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) 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 this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) 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.

2. Purpose and History

📖 Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 (decided 20 March 2018)

Facts: A Scheduled Caste employee of a government college had lodged a complaint against senior officers. The appellant, as Director of Technical Education, refused sanction to prosecute them. The employee then filed an FIR under the Act against the appellant himself.

Held: A bench of A.K. Goel and U.U. Lalit, JJ. (per Goel, J.) quashed the proceedings as an abuse of process and issued general directions: (ii) there is no absolute bar on anticipatory bail if no prima facie case is made out or the complaint is prima facie mala fide; (iii) arrest of a public servant only with approval of the appointing authority, and of others only with approval of the Senior Superintendent of Police; (iv) a preliminary enquiry by the DSP to check that allegations are not frivolous or motivated; and (v) violation of (iii) and (iv) to attract disciplinary action and contempt.

Ratio: Later recalled in part: directions (iii), (iv) and (v) were withdrawn in review in 2019.

The 2018 legislative response

The Statement of Objects and Reasons of the 2018 Bill recorded that the Supreme Court had required a preliminary enquiry and prior approval, and explained that under the Code every information of a cognizable offence must be recorded and that an investigating officer with reason to suspect an offence may arrest without any approval. It added that such enquiry and approval 'would only delay the filing of a charge sheet', and that 'this decision to arrest or not to arrest cannot be taken away from the investigating officer'. Parliament therefore restored the ordinary criminal procedure for FIR and arrest, and reaffirmed the exclusion of anticipatory bail 'notwithstanding any judgment or order or direction of any Court'.

💡 Analogy: the extra locks

Mahajan fitted two extra locks on the police station door: an enquiry before the FIR, and a key from a senior officer before arrest. Parliament removed both locks with Section 18A, leaving the door as it is for every other cognizable crime. The Supreme Court later agreed the locks should go, but kept one thing: a judge can still look through the door and say there is no atrocity inside.

3. Section 18A(1)(a): No Preliminary Enquiry before Registration of FIR

The rule. Where information discloses an offence under the Act, the FIR must be registered without a preliminary enquiry.
The general law. This matches the Constitution Bench decision in Lalita Kumari v. Government of U.P. (decided 2013, reported (2014) 2 SCC 1): registration of an FIR is mandatory where information discloses a cognizable offence, and a preliminary enquiry is allowed only in limited categories.
After Prathvi Raj Chauhan. The Court held that a preliminary inquiry is permissible only in the circumstances laid down in Lalita Kumari. Atrocity cases are not a category in which enquiry is routinely allowed.
BNSS Section 173(3). The BNSS now allows the police, with the permission of an officer of DSP rank, to hold a preliminary enquiry of up to fourteen days for offences punishable with three to seven years. Most Section 3(1) offences fall within that band, but Section 18A(1)(a), a special provision, excludes any preliminary enquiry for offences under the Act.
Connection with Section 4. Refusal to register the FIR, or registering it without the atrocity sections, is a dereliction of duty under Section 4(2)(b) (Topic 26).

4. Section 18A(1)(b): No Approval Required for Arrest

The rule. The investigating officer does not need approval from any authority to arrest a person accused of an offence under the Act.
'If necessary'. The words matter. Section 18A removes the need for approval; it does not make arrest compulsory. The officer must still decide whether arrest is necessary.
Ordinary procedural safeguards still apply. The closing words, 'no procedure other than that provided under this Act or the Code shall apply', keep the Code's arrest safeguards in place. For offences punishable with up to seven years, the officer must record reasons for arrest and consider a notice of appearance instead (Section 35 BNSS, formerly Sections 41 and 41A CrPC; Arnesh Kumar v. State of Bihar, 2014). The Allahabad High Court has applied these requirements to offences under the Act (Rajesh Mishra v. State of U.P., 2021).
Arrest is not automatic on registration of the FIR. Registration is compulsory; arrest is a separate decision, based on necessity and the evidence.

⚠ Two different questions

Section 18A answers 'Does the officer need permission?' (no). The Code answers 'Is arrest necessary?' (only if the conditions are met). Mixing the two leads either to automatic arrests, which the law does not require, or to demands for approval, which Section 18A forbids.

5. Section 18A(2): Anticipatory Bail

Sub-section (2) repeats the exclusion of anticipatory bail in Section 18 and adds 'notwithstanding any judgment or order or direction of any Court', aimed at direction (ii) of Mahajan. The non-obstante words tell courts that no judicial direction can create a general exception to the bar. They do not remove the courts' power to decide whether the case is, in truth, 'a case under this Act' at all.

6. The Constitutional Challenge

📖 Union of India v. State of Maharashtra, (2020) 4 SCC 761 (decided 1 October 2019)

Facts: The Union of India sought review of the Mahajan directions.

Held: A three-judge bench (Arun Mishra, M.R. Shah and B.R. Gavai, JJ.) recalled directions (iii) and (iv), and held that direction (v) consequently vanished. There is no presumption that members of the Scheduled Castes and Scheduled Tribes misuse the law as a class; a false report is due to human failing, not caste.

Ratio: The courts cannot add conditions to FIR registration and arrest for one class of complainants on the assumption of misuse.

📖 Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 (decided 10 February 2020)

Facts: Petitions challenged the constitutional validity of Section 18A as an attempt to override the Supreme Court's decision in Mahajan and as a violation of Articles 14 and 21.

Held: A three-judge bench (Arun Mishra, J. for himself and Vineet Saran, J.; S. Ravindra Bhat, J. concurring) disposed of the petitions, upholding Section 18A. Since the Mahajan directions had been recalled, the provisions of Section 18A were 'rendered of academic use'. A preliminary inquiry is permissible only as laid down in Lalita Kumari. Section 438 does not apply to cases under the Act, but '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'. Courts may, in exceptional cases, quash proceedings under their inherent power on settled parameters. Bhat, J. added that the High Court's power to grant pre-arrest bail in such cases must be used sparingly, only in very exceptional cases.

Ratio: Section 18A is valid; it restores ordinary procedure for FIR and arrest, while the courts retain the power to find that no offence under the Act is made out.

7. Section 18 versus Section 18A

Section 18 and Section 18A side by side

Figure 2: Section 18 and Section 18A side by side

Section 18. Enacted in 1989; excludes anticipatory bail; upheld in Balothia (1995).
Section 18A. Enacted in 2018; removes preliminary enquiry and prior approval, and re-excludes anticipatory bail notwithstanding any judgment; upheld in Prathvi Raj Chauhan (2020).
Common limit. Both apply only where there is a case under the Act, which courts test on a prima facie basis.

8. Distinctions That Matter

What changed: Mahajan directions and the law after Section 18A

Figure 3: What changed: Mahajan directions and the law after Section 18A

Preliminary enquiry versus prima facie judicial scrutiny

A preliminary enquiry is a police exercise before registration, testing whether the allegations are genuine or frivolous. Section 18A forbids it. Prima facie judicial scrutiny is a court's reading of the FIR and its material, after registration, to decide whether an offence under the Act is disclosed. Prathvi Raj Chauhan preserves it. The first checks facts before the case exists; the second checks law after the case is registered.

FIR registration versus anticipatory bail

Registration follows automatically once the information discloses an offence under the Act. Anticipatory bail is a separate question for a court: the FIR will be registered in every case, but anticipatory bail is barred only where the FIR discloses a prima facie offence under the Act.

Section 18A and constitutional safeguards

Article 21. The accused retains the protection of Articles 21 and 22: reasons for arrest, production before a magistrate, legal representation, and regular bail.
Inherent and writ powers. Courts can quash a case that is an abuse of process, in exceptional cases on settled parameters (Prathvi Raj Chauhan).
Remedies against false complaints. Prosecution for false information and false charges under the general law remains available (Topic 18).

9. Section 18A after Prathvi Raj Chauhan

Settled. No preliminary enquiry, no approval for arrest, no anticipatory bail where a prima facie offence under the Act is disclosed.
Refined since. Shajan Skaria (2024) confirmed that courts may examine the material behind the complaint to decide whether a prima facie offence exists; Kiran (2025) confirmed that courts may not hold a mini-trial.
Practice. The FIR is registered promptly; arrest depends on necessity under the Code; anticipatory bail is decided by applying the prima facie test.

10. Quick Revision and Memory Aids

'No enquiry, no approval, no 438'. The three limbs of Section 18A.
'Mahajan March, Parliament August'. 20 March 2018 and 20 August 2018.
'Review recalled (iii), (iv), (v)'. 1 October 2019.
'Chauhan: valid, but no prima facie case, no bar'. 10 February 2020.
'If necessary means not automatic'. Arrest still requires necessity and the Code's safeguards.
'Police cannot pre-check; courts can check'. Preliminary enquiry versus prima facie judicial scrutiny.

11. Frequently Asked Questions

Can a police officer conduct an enquiry before registering an FIR under the Act?

No, save in the limited categories where Lalita Kumari permits a preliminary inquiry.

Must the police arrest the accused once an FIR is registered?

No. Section 18A removes the need for approval, not the requirement that arrest be necessary under the Code.

Did Prathvi Raj Chauhan revive Mahajan’s direction on anticipatory bail?

In substance it confirmed the point in a narrower form: the bar does not apply where the complaint does not make out a prima facie case under the Act. But there is no general exception for 'mala fide' complaints; the test is whether the ingredients are disclosed.

Does Section 18A prevent quashing of a false atrocity case?

No. Courts retain the inherent power to quash in exceptional cases on settled parameters.

Why does Section 18A(2) say ‘notwithstanding any judgment’?

To override direction (ii) of Mahajan and prevent courts from creating general exceptions to the bar on anticipatory bail.

12. Related Topics and Provisions

Topic 10: Amendment History. The 2018 amendment in context.
Topic 26: Section 4. Duty to register the FIR.
Topic 34: Section 18. The bar on anticipatory bail and the prima facie test.
Sections 18, 18A; Sections 35, 173, 482 BNSS. The provisions discussed