Bail for Offences under the SC/ST Atrocities Act - The Dr. Payal Tadvi Suicide as a Case in Point

Bail for Offences under the SC/ST Atrocities Act - The Dr. Payal Tadvi Suicide as a Case in Point

Highlights

  • The Bombay High Court granted bail to the three accused doctors in the Payal Tadvi suicide case

  • The order was passed upon an Appeal filed under Section 14A of the SC/ST Atrocities Act

  • As of 2019, there is no provision for anticipatory or pre-arrest bail for cases registered under the Atrocities Act

As of today (2019), there is is no pre-arrest bail for offences under the SC/ST Atrocities Act. The 2018 Amendment has expressly barred applicability of anticipatory bail to cases under the Atrocities Act. Adv. Aditya Pratap

The recent suicide of Dr. Payal Tadvi, after facing ragging and harassment from her seniors, at Topiwala National Medical College and Nair Hospital, Mumbai shocked the nation. Three of her college seniors were immediately arrested for abetting her suicide. The First Information Report (FIR) was registered under Sections 306 of the IPC (abetment of suicide) and Section 3 of the SC/ST Prevention of Atrocities Act, 1989 (Also referred to in this article as the "Atrocities Act").

Bail Rejected in Sessions Court:

After being arrested, the three accused doctors, namely Hema Ahuja, Bhakti Mehare and Ankita Khandelwal, filed an application for bail before the Court of Sessions for Greater Bombay, which acts as a Special Court for the trial of offenses under the Atrocities Act. Additional Sessions Judge PB Jadhav rejected their bail applications, prompting the accused to approach the Bombay High Court under the recently-inserted Section 14A of the Atrocities Act.

Section 14A was inserted into the Atrocities Act by way of amendment in 2016. Under Section 14A, if the Accused person is denied bail by the Special Court (Court of Sessions), then he can file an appeal to the High Court. In the present case, the three arrested accused doctors availed of this remedy to challenge the rejection of their bail by the Sessions Court.

Stringent Conditions Imposed:

In her order passed on 9th August 2019 Justice Sadhana Jadhav of the Bombay High Court, after numerous refusals and stern observations, granted bail to the Accused subject to strict conditions for compliance. The order of bail passed by the High Court states that the Accused are to report to the Crime Branch every alternate day and shall not leave Mumbai without permission from the court. Further, they have been barred from entering the medical college as well as the entire area falling with the jurisdiction of Agripada Police Station. Finally, in a dramatic move, the license to practice medicine issued to these doctors has been suspended until the conclusion of the trial.

Bail in Atrocities Cases - A Bone of Contention and a Tussle between the Executive and Judiciary:

The issue of bail, especially anticipatory bail, has always been a bone of contention under the Atrocities Act. In a landmark judgment passed in March 2018, the Supreme Court of India barred the automatic arrest of the accused against whom an FIR is filed under the Atrocities Act. The judgment, passed by Justices Adarsh Kumar Goel and UU Lalit, had held that the right to life under Article 21 mandated that a person's liberty could not be taken away without scrutiny and merely on the basis of one-sided allegations. It went on to state that a person accused under the Act could only be arrested after approval from the Senior Superintendent of Police. 

This ruling of the Apex Court triggered violent protests from Dalit groups across the country. In response, and keeping in view the upcoming general elections, the Narendra Modi government stepped forward to amend the Act. It inserted Section 18A which states that if a police officer needs to make an arrest under the Act, he need not take permission from anyone. Furthermore, the accused has no right to file an application for anticipatory or pre-arrest bail under Section 438 of the Criminal Procedure Code in such cases. Further, the amendment also states that a preliminary inquiry shall not be required for registration of FIR against any person under the Act.

No Stay on Amendment - Final Decision only after hearing the Case - Supreme Court:

The 2018 amendment to the Atrocities Act barring anticipatory bail was challenged in the Supreme Court by an activist who filed a writ petition under Article 32 of the Constitution of India. Refusing to stay the operation of the amended act, the top court held that the case would have to be heard in due course. Thus, as of today, the position of law is that if an FIR is filed against any accused person under the Atrocities Act, he has no right to apply for anticipatory bail. He can only seek bail after arrest. If his bail application is rejected by the Sessions Court, he can file an appeal to the High Court under Section 14A of the Act.

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