Post-FIR Addition of SC/ST Act Charges Does Not Bar Anticipatory Bail when Prima-Facie Ingredients Are Absent – A Detailed Commentary on Sahil Sharma v. State of Himachal Pradesh (2025 HHC 19540)

1. Introduction

The Himachal Pradesh High Court, in Sahil Sharma v. State of H.P., delivered on 24 June 2025, confronted two cutting-edge questions:

1. Whether, after the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the High Court retains inherent powers (Section 482 BNSS) to grant anticipatory bail when the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act) is subsequently invoked; and
2. Whether the bar under Section 18/18-A of the SC/ST Act automatically applies when those provisions are grafted onto the FIR at a later stage, based solely on a supplementary statement and caste certificates.

The applicant, Sahil Sharma, apprehended arrest under Sections 376 IPC, 4 POCSO Act and, later, Section 3(2)(v) SC/ST Act. He invoked Section 482 BNSS for pre-arrest protection, alleging that the SC/ST charge was an afterthought and that the relationship was consensual between adults.

2. Summary of the Judgment

• The Court made absolute the interim anticipatory bail granted on 8 April 2025 and directed that the applicant be released on bail (₹50,000 bond) in the event of arrest.
• It held that:
  • Mere subsequent addition of SC/ST Act offences, absent in the original FIR, and lacking the essential allegations of caste-based offence, does not invoke the Section 18 bar.
  • A supplementary statement under Section 180 BNSS (equivalent to Section 161 CrPC) is hit by Section 181 BNSS/162 CrPC and cannot convert an otherwise ordinary offence into an SC/ST offence for the purpose of bail.
  • The Court’s inherent powers under Section 482 BNSS permit it to grant anticipatory bail in such circumstances.
• Investigation was complete; custodial interrogation was unnecessary; hence denial of bail would amount to pre-trial punishment.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Shajan Skaria v. State of Kerala, 2024 SCC OnLine SC 2249
   • Reaffirmed that courts may grant anticipatory bail if the complaint lacks prima-facie SC/ST ingredients. The High Court relied heavily on paragraphs 35-48 of this ruling.
2. Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727
   • Constitution Bench upheld Section 18-A but carved out the no prima-facie case exception. Justice Ravindra Bhat’s concurring opinion was quoted to balance societal interests with individual liberty.
3. Vilas Pandurang Pawar (2012) 8 SCC 795 & Rahna Jalal (2021) 1 SCC 733
   • Both emphasised courts’ duty to scrutinise averments for the existence of SC/ST ingredients before refusing bail.
4. Dr. Subhash Kashinath Mahajan (2018) 6 SCC 454; Union of India v. State of Maharashtra (2020) 4 SCC 761
   • Source of the principle that anticipatory bail can issue when complaint is prima-facie mala fide.
5. Allarakha Habib Memon v. State of Gujarat, (2024) 9 SCC 546
   • Held that a belatedly prepared document after deliberation is not an FIR; the High Court used this to treat the supplementary statement as inadmissible for engaging Section 18 SC/ST bar.
6. V.K. Mishra v. State Of Uttarakhand, (2015) 9 SCC 588 & Parvat Singh, (2020) 4 SCC 33
   • Clarified limited use of statements recorded under Section 161 CrPC (now Section 180 BNSS) – only for contradiction, not substantive evidence.

3.2 Legal Reasoning Adopted by the Court

1. Lack of SC/ST Allegations in the FIR
   • The primary FIR did not whisper the victim’s caste or allege caste-motivated sexual assault.
   • Consequently, the statutory bar under Section 18 could not be triggered merely by later investigative zeal.
2. Supplementary Statement ≠ FIR
   • The statement dated 06-05-2025 was recorded after registration; under Section 181 BNSS/162 CrPC it cannot create new offences for the limited purpose of bail.
3. BNSS Section 482
   • Functionally analogous to Section 438/482 CrPC; preserves inherent jurisdiction for protecting liberty.
4. Proportionality and Presumption of Innocence
   • Investigation complete, applicant co-operated; incarceration would be disproportionate and tantamount to punishment before conviction.

3.3 Potential Impact of the Judgment

• BNSS Jurisprudence: One of the earliest High Court decisions applying BNSS to bail jurisprudence, offering a template for interpreting its sections vis-à-vis the CrPC.
• SC/ST Act Prosecutions: Reinforces that investigative agencies cannot mechanically invoke Section 3(2)(v) post-registration to defeat anticipatory-bail jurisdiction. The prosecution must embed caste-based motive in the initial complaint.
• Evidence-Collection Discipline: Signals to police that supplementary statements after obtaining caste certificates will be scrutinised for admissibility.
• Victim-Protection vs. Abuse-of-Process: Strikes a delicate balance, ensuring genuine victims remain protected while safeguarding against post-facto escalations aimed at coercion.

4. Complex Concepts Simplified

Anticipatory Bail

Pre-arrest protection granted by a court when a person apprehends imminent arrest for a non-bailable offence.

Section 18 & 18-A SC/ST Act

Statutory provision barring courts from granting anticipatory bail for offences under the Act unless the complaint fails to disclose a prima-facie caste-based offence.

BNSS 2023

The Bharatiya Nagarik Suraksha Sanhita is poised to replace the Criminal Procedure Code. Section 482 in BNSS mirrors inherent powers of High Courts under Section 482 CrPC.

Section 180 BNSS / Section 161 CrPC

Allows police to record oral statements of witnesses during investigation. These statements are not substantive evidence.

Section 181 BNSS / Section 162 CrPC

Restricts the use of those police statements at trial, except to contradict the maker under cross-examination.

5. Conclusion

The Himachal Pradesh High Court’s decision in Sahil Sharma crystallises an important procedural safeguard: the bar on anticipatory bail under the SC/ST Act is not automatically attracted by an after-thought invocation of caste-based provisions. By rigorously applying Supreme Court precedents and the newly minted BNSS provisions, the Court preserved the applicant’s liberty while leaving the substantive allegations to be tested at trial.

Going forward, investigating officers must integrate caste-based allegations at the outset if they intend to rely on Section 3(2)(v); prosecutors must demonstrate prima-facie ingredients; and defence counsel will find in this judgment a robust authority to contest mechanical addition of aggravated charges. The ruling thereby fortifies the twin pillars of criminal jurisprudence: fair investigation and protection of personal liberty.