Justice G.R. Swaminathan held that Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers (u/s 482 CrPC) to make such orders as to secure the ends of justice.
From Para 5,
5.The Union of India not wanting to take chances also filed Review Petition (Crl) No.228 of 2018. The same was disposed of vide judgment dated 01.10.2019 by a three Judges Bench. On a careful reading of the judgement dated 01.10.2019, one can note that the essence and soul of Dr.Subhash Kashinath Mahajan judgment has not only survived but remains intact.
From Para 11,
11.The outcome of the challenge can be one way or the other. Section 18 A of the Act can be upheld. Or it can be struck down. Even if its validity is upheld, the High Courts would still be entitled to grant anticipatory bail. The statute only excludes the applicability of Section 438 of Cr.PC. In the State of Uttar Pradesh, Section 438 of the Code has been deleted by the State amendment and the said deletion has been upheld in (1994) 3 SCC 569 (Kartar Singh vs. State of Punjab). But, that has not curtailed the extraordinary power of the High Court to entertain a plea of anticipatory bail and this power was held to be available in Hema Mishra vs. State of U.P. and Ors, (2014) 4 SCC 453).
From Para 12,
Dr.S.Ariharan and Anr Vs Inspector of Police and Anr on 26 Nov 2019
12. Section 438 of Cr.PC is not the sole repository of the power to grant anticipatory bail. The High Courts are endowed with inherent powers to make such orders as to secure the ends of justice. I hope I am not indulging in quibbling or hair-splitting when I say that neither Section 18 nor Section 18 A engraft a bar against grant of anticipatory bail. They are to the effect that the provision of Section 438 of the Code shall not apply to a case under the Atrocities Act. Even if Section 438 of Cr.PC is not available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that this Court is very much possessed of the power to grant anticipatory bail even in cases arising under the Schedules Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitions can be filed under Article 226 of the Constitution of India or under Section 482 of Cr.PC.
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