YouTuber Ajeet Bharti sought anticipatory bail at Delhi’s Patiala House Court in an SC/ST Act FIR over a video; the court said any police notice must be placed before it before deciding. Hearing on August 31.
New Delhi: A Delhi court has, while hearing an anticipatory bail plea by YouTuber and commentator Ajeet Bharti in a case registered against him under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, directed that if the Delhi Police chooses to issue him a notice of appearance, that notice must be placed before the court for examination before the bail plea is decided [Ajeet Bharti v. State of Delhi].
Additional Sessions Judge Saurabh Pratap Singh Laler of the Patiala House Court heard the matter, summoned the Investigating Officer, issued notice to the police on the plea, and listed the case for arguments on August 31.
‘No offence made out under the SC/ST Act’
Appearing for Bharti, Advocates Jai Anant Dehadrai and Pratyush Prasanna argued that, on the facts of the case, no offence under the SC/ST Act was made out against their client. They also submitted that the police had not yet issued Bharti a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) the provision that requires a police officer to serve a written notice of appearance on an accused in cases where immediate arrest is not necessary.
The Section 35(3) point is of some practical significance to how the bail plea will be decided. The provision reflects the principle, developed in the Supreme Court’s decision in Arnesh Kumar v. State of Bihar and now embedded in the BNSS, that arrest should not be automatic in cases carrying a sentence of less than seven years the accused should ordinarily first be called through a notice to appear and cooperate, and arrested only if arrest becomes genuinely necessary. That the police had not yet issued such a notice meant that the question of Bharti’s arrest was, at this stage, not immediate.
The court’s direction
Taking note of that position, the court framed a mechanism tying the fate of the anticipatory bail plea to the notice, if and when it issues. It directed:
“In the event such notice is issued by the Investigating Officer, a copy thereof shall be placed by IO on record of this Court, so that the Court may examine the date of issuance of the notice and the prima facie satisfaction regarding the ingredients of the offence under the SC/ST (POA) Act, to dispose of this application.”
The direction is a calibrated one: rather than granting or refusing protection at the threshold, the court has kept the plea alive and made the police’s own next step the issuance of a notice the trigger for its examination, reserving to itself the assessment of whether the ingredients of an SC/ST Act offence are even prima facie disclosed. That reservation matters, because the SC/ST Act ordinarily bars anticipatory bail under Section 18 where a prima facie case under the Act is made out; by signalling that it will itself examine whether those ingredients are satisfied, the court has left open the very question on which the availability of anticipatory bail turns.
The FIR and the complaint
The FIR was registered against Bharti at Delhi’s North Avenue Police Station on August 23, under the SC/ST Act along with Section 67 of the Information Technology Act and Sections 196(1)(c) and 351(3) of the Bharatiya Nyaya Sanhita. The complaint was filed by Balakram Bauddh, the Delhi State President of the Azad Samaj Party (Kanshi Ram), over a video published on Bharti’s social-media handle.
According to the complaint, Bharti used caste-based and abusive language, made objectionable remarks concerning Azad Samaj Party chief Chandrashekhar Azad and Dr. B.R. Ambedkar, used sexually degrading language about women, and issued threats. These are the allegations contained in the complaint, and they remain untested; no finding has been recorded, and Bharti has not been charged following trial. For his part, Bharti has publicly defended himself, stating that his remarks were provoked by a degrading comment made about a member of his family on his video his account of the context, likewise untested at this stage.
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Background: anticipatory bail under the SC/ST Act
The case sits at the intersection of two heavily-litigated areas the regulation of online speech and the special procedural regime of the SC/ST Act. The Act was enacted to protect members of Scheduled Castes and Scheduled Tribes from caste-based atrocities, and it contains stringent provisions, including Section 18, which excludes the ordinary remedy of anticipatory bail where an accusation under the Act is made out. The Supreme Court has, however, clarified in cases such as Prathvi Raj Chauhan v. Union of India that this bar is not absolute where the complaint, taken at face value, does not disclose the ingredients of an offence under the Act, a court is not precluded from granting anticipatory bail, since the bar operates only where a prima facie case under the Act genuinely exists.
That is precisely the terrain on which Bharti’s plea will be argued on August 31: whether the video and the words complained of, tested against the statutory ingredients, make out an offence under the SC/ST Act at all, or whether as his counsel contends no such offence is disclosed, leaving the anticipatory bail remedy open. The parallel invocation of Section 67 of the IT Act (which concerns publishing or transmitting obscene material in electronic form) and the Bharatiya Nyaya Sanhita provisions reflects the increasingly common pattern of speech-related FIRs drawing together atrocity, obscenity and public-order offences in a single complaint arising from a piece of online content.
Case Title: Ajeet Bharti v. State [anticipatory bail application, Patiala House Court]
Bench: Additional Sessions Judge Saurabh Pratap Singh Laler
For the Applicant: Jai Anant Dehadrai and Pratyush Prasanna, Advs.