The Supreme Court has revived the possibility of anticipatory bail under the SC and ST (Prevention of Atrocities) Act, 1989, partly echoing an earlier judgment that had led to political controversy and was overruled by Parliament through an amendment.

There is no absolute bar on granting anticipatory bail to someone accused of humiliating a Dalit or tribal under the 1989 Act unless there is prima facie evidence to establish the offence, the apex court ruled on Friday.

Section 18 of the 1989 Act imposes a bar on anticipatory bail. After the Supreme Court’s 2018 Subhash Kashinath Mahajan judgment introduced anticipatory bail and other safeguards under the Act, such as prior permission for arrest and a preliminary inquiry, Parliament inserted Section 18A to nullify these measures.

However, on Friday, the apex court said neither Section 18 nor Section 18A imposed "an absolute fetter" on courts against granting anticipatory bail in cases registered under the Act.

"Section 18 of the Act, 1989, does not impose an absolute fetter on the power of the courts to examine whether a prima facie case attracting the provisions of the Act, 1989, is made out or not," the bench of Justice J.B. Pardiwala and Justice Manoj Misra said.

"We… are of the view that Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC."

Section 41 of the CrPC confers on the police the power to arrest without warrant in certain specified situations. Section 60A says that no arrest shall be made except in keeping with the provisions of the CrPC or any other law that provides for arrest.

The court said the bar under Section 18 applies only to cases where prima facie material points towards the commission of an offence under the 1989 Act.

“We say so because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied,” Justice Pardiwala, who authored the judgment, wrote.

“As a sequitur, if the necessary ingredients to constitute the offence under the Act, 1989 are not disclosed on the prima facie reading of the allegations levelled in the complaint or FIR, then in such circumstances, as per the consistent exposition by various decisions of this Court, the bar of Section 18 would not apply and the courts would not be absolutely precluded from granting pre-arrest bail to the accused persons.”

The apex court said an accused may argue that a false FIR or complaint has been lodged owing to political or private enmity, and the court should consider the plea for anticipatory bail despite the specific bar of Section 18 of the 1989 Act.

The bench passed the ruling while granting anticipatory bail to Sajan Skaria, editor of the online news channel Marunandan Malayali that had published a video on YouTube levelling certain allegations against CPM leader P.V. Srinijan, MLA from Kunnathunad, Kerala.

The MLA had filed the case under the SC-ST Act after Srinijan uploaded the video in which he called Srinijan a “mafia don”.