Section 18 and Section 18A

Section 18 has stood in the Act since 1989: anticipatory bail does not apply to accusations under it. Section 18A arrived twenty-nine years later, in 2018, to reverse a judgment: Subhash Kashinath Mahajan had read a preliminary enquiry, an approval requirement for arrest and a liberal anticipatory-bail power into the Act, and Parliament struck all three down within months. The two sections now work as one scheme, no enquiry before the FIR, no approval before arrest, no pre-arrest bail where a prima facie case appears, and the Supreme Court has upheld the whole of it. This note compares the two provisions and tells the story that connects them.

Figure 1: Section 18 and Section 18A

1. Section 18: the Original Bar

• The design. Parliament judged that the offenders the Act aims at, typically dominant and locally powerful, would use pre-arrest bail to terrorise victims and stall investigations. The exclusion is of the jurisdiction itself, not a factor in its exercise.
• Constitutionality. Upheld in State of M.P. v. Ram Krishna Balothia (1995): atrocities form a distinct class, and the exclusion of Section 438 for them does not violate Articles 14 or 21.
• The gateway. The bar operates on an 'accusation of having committed an offence under this Act'. Where the FIR, taken at face value, discloses no such offence, the bar does not apply, and anticipatory bail can be considered (Vilas Pawar, 2012; Shajan Skaria, 2024).

2. Section 18A: the 2018 Response

• What it answers. On 20 March 2018, Subhash Kashinath Mahajan v. State of Maharashtra directed a preliminary enquiry before FIRs, prior approval for arrests, and anticipatory bail where no prima facie case appeared. The directions triggered nationwide protests, and the Amendment Act of 2018, in force 20 August 2018, inserted Section 18A to undo them.
• Clause (1)(a). No preliminary enquiry before registration. It also shuts out the general power in Section 173(3) BNSS, which otherwise allows a fourteen-day enquiry for offences punishable with three to seven years, a band covering most Section 3(1) offences (Topic 35).
• Clause (1)(b). No approval for arrest, and no procedure beyond the Act and the Code: the ordinary law of arrest applies, without the extra filter Mahajan had added.
• Sub-section (2). Section 438 excluded again, 'notwithstanding any judgment or order or direction of any Court', words aimed directly at the Mahajan directions.
• The sequel. On review, Union of India v. State of Maharashtra (1 October 2019) recalled the Mahajan directions, and Prathvi Raj Chauhan v. Union of India (2020) upheld Section 18A, with the prima facie gateway restated: where the complaint discloses no prima facie offence, the bar does not operate, and courts can still quash in exceptional cases.

Figure 2: From Balothia to Prathvi Raj Chauhan

3. Reading the Two Together

• Same bar, doubled. Sections 18 and 18A(2) exclude the same jurisdiction. The second exists to override judicial dilution; substantively it adds the non-obstante words, not a new rule.
• 18A goes further than bail. Its first sub-section governs the police stage: registration without enquiry, arrest without approval. Section 18 says nothing about either.
• The shared gateway. Under both, the exclusion depends on the accusation prima facie disclosing an offence under the Act. That scrutiny is judicial and survives both provisions (Topic 65).
• The BNSS frontier. Both sections name 'Section 438 of the Code'. Whether the bar reaches an application under Section 482 BNSS has split the High Courts, Allahabad reading the words literally, Kerala treating the new section as the successor (Topic 34).

4. Quick Revision

• s.18 (1989). Section 438 excluded; upheld in Balothia (1995); gateway from Vilas Pawar (2012).
• s.18A (2018). No preliminary enquiry; no arrest approval; s.438 excluded notwithstanding any judgment; upheld in Prathvi Raj Chauhan (2020).
• The trigger. Mahajan (20 March 2018); amendment in force 20 August 2018; review recall 1 October 2019.
• The constant. The prima facie gateway: no bar where the FIR discloses no offence under the Act.

5. Frequently Asked Questions

Did Section 18A introduce the bar on anticipatory bail?

No. Section 18 has barred it since 1989. Section 18A(2) restated the bar with a non-obstante clause to override the Mahajan directions.

Is any preliminary enquiry permissible before an FIR in an atrocity case?

No. Section 18A(1)(a) dispenses with it, and it excludes the Section 173(3) BNSS enquiry for offences under the Act.

Does an investigating officer need approval to arrest?

No. Section 18A(1)(b) removes any approval requirement; the ordinary law of arrest under the Code governs.

Are Sections 18 and 18A constitutional?

Yes. Balothia (1995) upheld Section 18, and Prathvi Raj Chauhan (2020) upheld Section 18A.

6. Related Topics and Provisions

• Topic 34: Section 18. Anticipatory bail in full.
• Topic 35: Section 18A. The 2018 amendment in full.
• Topic 63: Regular vs Anticipatory Bail. The two remedies compared.
• Topic 65: Preliminary Enquiry vs Prima Facie Scrutiny. The police and judicial filters.
• Sections 18, 18A; s.173(3), 482 BNSS; the 2018 Amendment Act. The provisions discussed.