Section 18 SC/ST Act: Section 438 of the Code not to apply to persons committing an offence under the Act

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Section 18 SC/ST Act at a Glance

Section 18 SC/ST Act bars anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 in any case involving the arrest of a person accused of an offence under the SC/ST Act.

Section 18 SC/ST Act Bare Act Text

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 18 SC/ST Act in Simple Words

Section 18 SC/ST Act excludes anticipatory bail in cases under the SC/ST Act. Specifically, Section 18 SC/ST Act states that nothing in section 438 of the Code (anticipatory bail) applies to any case involving the arrest of any person on an accusation of having committed an offence under the SC/ST Act.

Two points in the wording of Section 18 SC/ST Act matter for readers. First, the bar applies to 'any person' facing arrest on such an accusation. Second, the trigger in the text of Section 18 SC/ST Act is an accusation of having committed an offence under the SC/ST Act (such as an atrocity punishable under Section 3 SC/ST Act), in a case involving arrest.

Under Section 2 SC/ST Act, 'the Code' means the Code of Criminal Procedure, 1973. The Act still refers to the Code of Criminal Procedure, 1973, which the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced from 1 July 2024; anticipatory bail is now Section 482 BNSS. In Prathvi Raj Chauhan v. Union of India (2020), the Supreme Court upheld Sections 18 and 18A SC/ST Act but held that where a complaint does not make out a prima facie case under the Act, the bar does not apply and a court may grant anticipatory bail. Section 18A(2) SC/ST Act also states that the provisions of section 438 of the Code do not apply to a case under the SC/ST Act, despite any judgment, order or direction of any court.

When Section 18 SC/ST Act Applies

  • An accusation has been made that a person committed an offence under the SC/ST Act.
  • The case involves the arrest of that person on that accusation.
  • Nothing in section 438 of the Code of Criminal Procedure, 1973 (anticipatory bail) applies to the case.

Example of Section 18 SC/ST Act

Lakshmi, a member of a Scheduled Caste living in Siliguri, lodges a police complaint accusing Mehul of committing an offence of atrocity punishable under Section 3 SC/ST Act. Facing arrest on that accusation, Mehul files an application for anticipatory bail under section 438 of the Code of Criminal Procedure, 1973. Because the case involves the arrest of Mehul on an accusation of having committed an offence under the SC/ST Act, Section 18 SC/ST Act applies. Under Section 18 SC/ST Act, nothing in section 438 of the Code applies to Mehul's case.

FAQs on Section 18 SC/ST Act

What is Section 18 SC/ST Act?▼

Section 18 SC/ST Act states that nothing in section 438 of the Code of Criminal Procedure, 1973 (anticipatory bail) applies to any case involving the arrest of any person on an accusation of having committed an offence under the SC/ST Act. Section 18A(2) SC/ST Act reinforces that rule despite any judgment, order or direction of any court.

Can a person accused of an offence under the SC/ST Act get anticipatory bail under section 438 of the Code?▼

As a rule, no. Under Section 18 SC/ST Act, nothing in section 438 of the Code of Criminal Procedure, 1973 (now Section 482 BNSS) applies to any case involving the arrest of a person on an accusation of having committed an offence under the SC/ST Act. In Prathvi Raj Chauhan v. Union of India (2020), the Supreme Court upheld Sections 18 and 18A SC/ST Act but held that where a complaint does not make out a prima facie case under the Act, the bar does not apply and a court may grant anticipatory bail.

Does Section 18 SC/ST Act require a conviction before barring section 438 of the Code?▼

No. Despite the word 'committing' in the section heading, the body of Section 18 SC/ST Act applies wherever the case involves arrest 'on an accusation' of having committed an offence under the SC/ST Act.

What does 'the Code' mean in Section 18 SC/ST Act?▼

The Code of Criminal Procedure, 1973, as defined in Section 2 SC/ST Act. The Act still refers to the Code of Criminal Procedure, 1973, which the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced from 1 July 2024.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ·