Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 -Any violation of directions will be actionable by way of disciplinary action as well as contempt - The directions are prospective.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[ADARSH KUMAR GOEL] AND [UDAY UMESH LALIT] JJ.
MARCH 20, 2018
CRIMINAL APPEAL
NO.416 OF 2018
(Arising out of Special Leave Petition (Crl.)No.5661 of 2017)
DR.
SUBHASH KASHINATH MAHAJAN …Appellant
VERSUS
THE
STATE OF MAHARASHTRA AND ANR. …Respondents
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the order dated 5th May,
2017 of the High Court of Judicature at Bombay in Criminal Application No.1015
of 2016.
2. On 20th November, 2017 the following order was passed by this
Court:-
“Heard learned counsel for the
parties.
Certain adverse remarks were recorded against respondent no.
2-Bhaskar Karbhari Gaidwad by the Principal and Head of the Department of the
College of Pharmacy where respondent no. 2 was employed. Respondent No. 2
sought sanction for his prosecution under the provisions of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and for
certain other connected offences. The said matter was dealt with by the
petitioner and sanction was declined. This led to another complaint by the
respondent no. 2 against the petitioner under the said provisions. The quashing
of the said complaint has been declined by the High Court.
The question which has arisen in the course of consideration of
this matter is whether any unilateral allegation of mala fide can be ground to
prosecute officers who dealt with the matter in official capacity and if such allegation
is falsely made what is protection available against such abuse.
Needless to say that if the allegation is to be acted upon, the
proceedings can result in arrest or prosecution of the person and have serious
consequences on his right to liberty even on a false complaint which may not be
intended by law meant for protection of a bona fide victim.
The question is whether this will be just and fair procedure under
Article 21 of the Constitution of India or there can be procedural safeguards
so that provisions of Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 are not abused for extraneous considerations.
Issue notice returnable on 10th January,
2018.
In the meanwhile, there shall be stay of further proceedings.
Issue notice to Attorney General of India also as the issue involves
interpretation of a central statute.
Mr. Amrendra Sharan, learned senior counsel is requested to
assist the Court as amicus. Mr. Sharan will be at liberty to have assistance of
Mr. Amit Anand Tiwari, Advocate. … …”
3. Though certain facts are stated while framing the question already
noted, some more facts may be noted. The appellant herein is the original
accused in the case registered at City Police Station, Karad for the offences
punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the
Atrocities Act) as also Sections 182, 192, 193, 203 and 219 read with 34 of the
Indian Penal Code, 1860 (IPC). He was serving as Director of Technical
Education in the State of Maharashtra at the relevant time.
4. The second respondent - the complainant is an employee of the
department. He was earlier employed as a Store Keeper in the Government College
of Pharmacy, Karad. He was later posted at Government Distance Education
Institute, Pune. Dr. Satish Bhise and Dr. Kishor Burade, who were his seniors
but nonscheduled caste, made adverse entry in his annual confidential report to
the effect that his integrity and character was not good. He lodged FIR with Karad Police Station against the said two officers
under the Atrocities Act on 4th January, 2006 on that ground. The concerned
Investigating Officer applied for sanction under Section 197 Cr.P.C. against
them to the Director of Technical Education on 21st December,
2010. The sanction was refused by the appellant on 20th January,
2011. Because of this, ‘C’ Summary Report was filed against Bhise and Burade
which was not accepted by the court. He then lodged the present FIR against the
appellant. According to the complainant, the Director of Technical Education
was not competent to grant/refuse sanction as the above two persons are Class-I
officers and only the State Government could grant sanction. Thus, according to
him, the appellant committed the offences alleged in the FIR dated 28th March,
2016 by illegally dealing with the matter of sanction.
5. The complaint is fully extracted below:
“In the year 2009 I was working as store keeper in
the Govt. Pharmacy College Karad, at that time I have registered complaint to
Karad City Police Station Cr. NO. 3122/09 u/s 3(1)9, 3(2)(7)6 of S.C. & S.T. (Preention of Atrocities) Act and the investigation was done by
Shri Bharat Tangade, then D.Y.S.P. Karad division Karad in the investigation 1)
Satish Balkrushna Bhise, then Principal Pharmacy College Karad, 2) Kishor
Balkrishna Burade, then Professor, Pharmacy College Karad has been realized as accused
in the present crime. Investigation officer collect sufficient evidence against
both the accused, but both the accused are from Govt. Technical Education
department Class 1 Public Servant, so before filing charge sheet against them
he wrote the letter to the senior office of the accused u/s 197 of Cr.P.C. to
take the permission at that time Mr. Subhash Kashinath Mahajan was working as
incharge director of the office. Today also he is working as same post. Mr.
Mahajan does not belongs to S.C. & S.T. but he knew that I belongs to S.C.
and S.T. In fact both the accused involved in crime No. 3122/09 are working on class 1 post and to file a charge sheet
against them the permission has to be taken according to Cr.P.C. Section 197.
This fact known to Shri Mahajan and Mr. Mahajan knew that this office did not
have such right to give permission. So Mr. Mahajan send letter to Mumbai Office. Infact to give the
required permission or to refuse the permission is not comes under the
jurisdiction of incharge direction, Technical Education Mumbai. But, Mr.
Mahajan misused his powers so that, accused may be benefited, he took the
decision and refused the permission to file the charge sheet against the accused.
So that, investigation officer Shri Bharat Tangade fails to submit the charge
sheet against the both the accused, but he complain to submit ‘C’ summary
report.”
6. The appellant,
after he was granted anticipatory bail, applied to the High Court under Section
482 Cr.P.C. for quashing the proceedings on the ground that he had merely
passed a bonafide administrative order in his official capacity. His action in
doing so cannot amount to an offence, even if the order was erroneous. The High Court rejected the petition.
7. Dealing with the contention that if such cases are not quashed,
recording of genuine adverse remarks against an employee who is a member of
SC/ST or passing a legitimate administrative order in discharge of official
duties will become difficult and jeopardise the administration, the High Court observed
that no public servant or reviewing authority need to apprehend any action by
way of false or frivolous prosecution but the penal provisions of the
Atrocities Act could not be faulted merely because of possibility of abuse. It
was observed that in the facts and circumstances, inherent power to quash could
not be exercised as it may send a wrong signal to the downtrodden and backward
sections of the society.
8. We have heard Shri Amrendra Sharan, learned senior counsel,
appearing as amicus, Shri Maninder Singh, learned Additional Solicitor General,
appearing for the Union of India, Shri C.U. Singh, learned senior counsel and the
other learned counsel appearing for the intervenors and learned counsel for the
parties and perused the record.
9. We may refer to the submissions put forward before the Court:
Submissions of learned
Amicus
10. Learned amicus
submitted that in facts of the present case, no offence was made out under
Sections 3(1)(ix), 3(2)(vi) and 3(2) (vii) of the Atrocities Act and Sections
182, 192, 193, 203 and 219 of the Indian Penal Code and, thus, the High Court
ought to have quashed the proceedings. He submitted the following table to explain
his point:
Provisions of the SC/ST Act invoked in this case
|
Applicability of the provisions in the facts of
the case
|
3. Punishment for offences atrocities. – 3 [(1)
Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(ix): gives any false or frivolous information to
any public servant and thereby causes such public servant to use his lawful
power to the injury or annoyance of a member of a Scheduled Caste or a
Scheduled Tribe;
|
The provision mandates a “false and frivolous
information given by the public servant”, however in the present case, the
Petitioner has denied sanction for prosecution which clearly does not amount
to false or frivolous information. Thus, a case under Section 3(1)(ix) of the
SC/ST Act is not made out.
|
3(2)(vi): knowingly or having reason to believe
that an offence has been committed under this Chapter, causes any evidence of
the commission of that offence to disappear with the intention of screening
the offender from legal punishment, or with that intention gives any
information respecting the offence which he knows or believes to be false,
shall be punishable with the punishment provided for that offence;
|
Section 3(2)(vi) requires causing of
disappearance of evidence with the intention of screening the offender from
legal punishment, however, in the present case, there is no allegation that
the petitioner has caused disappearance of any evidence. Therefore the
ingredients of Sections 3(2)(vi) is not made out.
|
(vii) being a public servant, commits any offence
under this section, shall be punishable with imprisonment for a term which
shall not be less than one year but which may extend to the punishment
provided for that offence.
|
Since no offence under section 3 of the SCST is
made out this section cannot be attracted.
|
Provisions of IPC alleged
|
Applicability of the provisions in the facts of
instant case
|
182. False information, with intent to cause
public servant to use his lawful power to the injury of another person. –
Whoever gives to any public servant any information which he knows or
believes to be false, intending thereby to cause, or knowing it to be likely
that he will thereby cause, such public servant – (a) to do or omit anything
which such public servant ought not to do or omit if the true state of facts
respecting which such information is given were known by him, or
(b) to use the lawful power of such public
servant to the injury or annoyance of any person, shall be punished with
imprisonment of either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.
|
A false information is an information which has
been given deliberately with an intention to deceive. However, in this case
denial of sanction for prosecution cannot be construed as a false information
in any way. It is an order of administrative authority. Therefore no case is
made out under Section 182 of the code.
|
192. Fabricating false evidence. – whoever causes
any circumstance to exist or *[makes any false entry in any book or record,
or electronic record or makes any document or electronic record containing a
false statement, intending that such circumstance, false entry or false
statement may appear in evidence in a judicial proceeding, or in a proceeding
taken by law before a public servant as such, or before an arbitrator, and
that such circumstance, false entry or false statement, so appearing in
evidence, may cause any person who in such proceeding is to form an opinion
upon the evidence, to entertain an erroneous opinion touching any point
material to the result of such proceeding, is said “to fabricate false
evidence”.
|
The ingredients of Section 192 IPC is not made
out therefore this section will not apply in the present case. It was not a
judicial proceeding and the petitioner has neither fabricated false evidence
nor made any false entry in any book, record or electronic data. Mere
exercising of administrative power cannot be construed as fabricating false
evidence.
|
193. Punishment for false evidence. – Whoever
intentionally gives false evidence in any stage of a judicial proceeding, or
fabricates false evidence for the purpose of being used in any stage of a
judicial proceeding, shall be punished with imprisonment of either
description for a term which may extend to seven years, an shall also be
liable to fine, and whoever intentionally gives or fabricates false evidence
in any other case, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable.
|
Since there was no ‘false evidence’, therefore
the possibility of punishment accruing to false evidence is ruled out.
|
203. Giving false information respecting an
offence committed. – Whoever knowing or having reason to believe that an
offence has been committed, gives any information respecting that offence
which he knows or believes to be false, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine,
or with both.
|
For the reasons already stated hereinabove, the
present case does not meet the ingredients of this section, therefore is
precluded from being prosecuted here. A mere opinion of a senior officer in
an ACR does not amount to giving false information.
|
219. Public servant in judicial proceeding
corruptly making report, etc., contrary to law. – Whoever, being a public
servant, corruptly or maliciously makes or pronounces in any stage of a
judicial proceeding, any report, order verdict, or decision which he knows to
be contrary to law, shall be punished with imprisonment of either description
for a term which may extend to seven years, or with fine, or with both.
|
The denial of sanction to prosecute the two
government servants against whom the Complainant/ Respondent no. 2 had
originally filed an FIR cannot be construed as making corrupt report
therefore the case of the petitioner does not fall within the ambit of this
provision.
|
11. It was submitted by learned amicus that FIR was lodged after five
years of the order passed by the appellant. The order was passed on 20th January,
2011 while the FIR was lodged on 28th March,
2016 which further strengthened the case for quashing in addition to the facts
and legal contentions noted in the previous para. Moreover, in absence of any
allegation of malafides, even if order passed by the appellant was erroneous
proceedings against him are not called for.
12. Learned amicus submitted that under the scheme of the Atrocities
Act, several offences may solely depend upon the version of the complainant
which may not be found to be true. There may not be any other tangible material. One sided version,
before trial, cannot displace the presumption of innocence. Such version may at
times be self serving and for extraneous reason. Jeopardising liberty of a person on an untried unilateral
version, without any verification or tangible material, is against the fundamental
rights guaranteed under the Constitution. Before liberty of a person is taken
away, there has to be fair, reasonable and just procedure. Referring to Section
41(1)(b) Cr.P.C. it was submitted that arrest could be effected only if there
was ‘credible’ information and only if the police officer had ‘reason to
believe’ that the offence had been committed and that such arrest was necessary.
Thus, the power of arrest should be exercised only after complying with the
safeguards intended under Sections 41 and 41A Cr.P.C. It was submitted that the
expression ‘reason to believe’ in Section 41 Cr.P.C. had to be read in the
light of Section 26 IPC and judgments interpreting the said expression. The
said expression was not at par with suspicion. Reference has been made in this
regard to Joti Prasad
versus State of Haryana, 1993 Supp (2) SCC 497; Badan Singh @ Baddo versus State of U.P. & Ors., 2002 CriLJ 1392; Adri Dharan Das versus State of West Bengal, (2005) 4 SCC 303; Tata Chemicals Ltd. versus Commissioner of Customs, (2015) 11 SCC 628 and Ganga
Saran & Sons Pvt. Ltd. versus Income Tax Officer & Ors., (1981) 3 SCC 143. In the present context, to balance the right of liberty of the
accused guaranteed under Article 21, which could be taken away only by just fair and reasonable procedure and to check abuse of power by
police and injustice to a citizen, exercise of right of arrest was required to
be suitably regulated by way of guidelines by this Court under Article 32 read
with Article 141 of the Constitution. Some filters were required to be incorporated to meet the mandate
of Articles 14 and 21 to strengthen the rule of law.
13. Learned amicus submitted that this Court has generally acknowledged
the misuse of power of arrest and directed that arrest should not be
mechanical. It has been laid down that the exercise of power of arrest requires
reasonable belief about a person’s complicity and also about need to effect
arrest. Reliance has been placed on Joginder Kumar versus State of U.P., (1994) 4 SCC 260; M.C. Abraham versus State of Maharashtra, (2003) 2 SCC 649; D. Venkatasubramaniam versus M. K. Mohan Krishnamachari, (2009) 10 SCC 488; Arnesh Kumar versus State of Bihar, (2014) 8 SCC 273 and Rini
Johar & Ors. versus State of M.P. & Ors., (2016) 11 SCC 703.
14. It was submitted that in the context of the Atrocities Act,
in the absence of tangible material to support a version, to prevent exercise
of arbitrary power of arrest, a preliminary enquiry may be made mandatory.
Reasons should be required to be recorded that information was credible and
arrest was necessary. In the case of public servant, approval of disciplinary
authority should be obtained and in other cases approval of Superintendent of
Police should be necessary. While granting such permission, based on a preliminary
enquiry, the authority granting permission should be satisfied about
credibility of the information and also about need for arrest. If an arrest is
effected, while granting remand, the Magistrate must pass a speaking order as
to correctness or otherwise of the reasons for which arrest is effected. These requirements
will enforce right of concerned citizens under Articles 14 and 21 without in
any manner affecting genuine objects of the Act.
15. Learned amicus further submitted that Section 18 of the Atrocities
Act, which excludes Section 438 Cr.P.C., violates constitutional mandate under
Articles 14 and 21 and is ultra
vires the Constitution. The said
provision was upheld in State of M.P. versus Ram Krishna Balothia, (1995) 3 SCC 221 but the
said judgment was in ignorance of the Constitution Bench judgment in Gurbaksh Singh Sibbia etc.
versus State of Punjab, (1980) 2 SCC 565. If a
Court is not debarred from granting anticipatory bail even in most heinous offences
including murder, rape, dacoity, robbery, NDPS, sedition etc., which are
punishable with longer periods depending upon parameters for grant of
anticipatory bail, taking away such power in respect of offences under the Act
is discriminatory and violative of Article 14. Exclusion of court’s
jurisdiction, even where the court is satisfied that arrest of a person was not
called for, has no nexus with the object of the Atrocities Act. In this regard,
reliance has been placed on following observations in Sibbia (supra).
“10. Shri V.M.
Tarkunde, appearing on behalf of some of the appellants, while supporting the
contentions of the other appellants, said that since the denial of bail amounts
to deprivation of personal liberty, courts should lean against the imposition
of unnecessary restrictions on the scope of Section 438, when no such restrictions
are imposed by the legislature in the terms of that section. The learned
Counsel added a new dimension to the argument by invoking Article 21 of the
Constitution. He urged that Section 438 is a procedural provision which is
concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks
bail and who must therefore be presumed to be innocent. The validity of that
section must accordingly be examined by the test of fairness and reasonableness
which is implicit in Article 21. If the legislature itself were to impose an
unreasonable restriction on the grant of anticipatory bail, such a restriction
could have been struck down as being violative of Article 21. Therefore, while
determining the scope of Section 438, the court should not impose any unfair or
unreasonable limitation on the individual’s right to obtain an order of
anticipatory bail. Imposition of an unfair or unreasonable limitation, according
to the learned Counsel, would be violative of Article 21, irrespective of
whether it is imposed by legislation or by judicial decision.
13. … …The
High Court and the Court of Session to whom the application for anticipatory
bail is made ought to be left free in the exercise of their judicial discretion
to grant bail if they consider it fit so to do on the particular facts and
circumstances of the case and on such conditions as the case may warrant. ….
21. …. …A
wise exercise of judicial power inevitably takes care of the evil consequences
which are likely to flow out of its intemperate use. …
26. We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to
deprivation of personal liberty, the court should lean against the imposition
of unnecessary restrictions on the scope of Section 438, especially when no
such restrictions have been imposed by the legislature in the terms of that
section. Section 438 is a procedural provision which is concerned with the personal
liberty of the individual, who is entitled to the benefit of the presumption of
innocence since he is not, on the date of his application for anticipatory
bail, convicted of the offence in respect of which he seeks bail. An
over-generous infusion of constraints and conditions which are not to be found
in Section 438 can make its provisions constitutionally vulnerable since the
right to personal freedom cannot be made to depend on compliance with
unreasonable restrictions. The beneficent provision contained in Section 438 must be saved,
not jettisoned. No doubt can linger after the decision in Maneka Gandhi (1978)
1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution,
the procedure established by law for depriving a person of his liberty must be
fair, just and reasonable. Section 438, in the form in which it is conceived by
the legislature, is open to no exception on the ground that it prescribes a
procedure which is unjust or unfair. We ought, at all costs, to avoid throwing
it open to a Constitutional challenge by reading words in it which are not to
be found therein.”
16.
Reliance has also placed on recent judgment of this Court in Nikesh Tarachand Shah
versus Union of India and Anr., (2017) 13 Scale 609, 2017 SCC OnLine SC 1355 declaring
Section 45 of the Prevention of Money Laundering Act, 2002 unconstitutional.
This Court held that fetters on grant of bail under the said provision when
such fetters were not applicable to other offences punishable in like manners
was discriminatory and against the principle of fair just and reasonable
procedure.
Submissions of counsel for intervenor supporting the appeal
17. Ms. Manisha T. Karia, counsel appearing for
intervenor on behalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be victim
of a false complaint, submitted that respondent No. 2 lodged a false FIR No.
3210 of 2017 dated 2nd November, 2017 against her at Khadki police station
alleging that she, in collusion with the appellant herein, pressurized
respondent no. 2 to withdraw the FIR No.164 of 2016 registered with Karad
Police Station and she falsely implicated respondent no. 2 in a sexual harassment
case. She is working as an Assistant Professor in the Department of
Instrumentation and Control in College of Engineering, Pune since last eight
years where respondent No. 2 was working as a storekeeper. She had made a
complaint against him for her sexual harassment and as a reaction, the FIR was lodged
by respondent No. 2 by way of the Atrocities Act. Her anticipatory bail
application was rejected by the session court but the High Court, vide order
dated 23rd November, 2017, granted interim protection against
arrest. Thereafter, respondent No. 2 initiated proceedings under Section 107
Cr.P.C. and the intervenor received notice dated 2nd December,
2017 from the Magistrate. It was submitted that there was no safeguard against
false implication, undue harassment and uncalled for arrest and thus, this
Court must incorporate safeguards against unreasonable and arbitrary power of
arrest in such cases without following just fair and reasonable procedure which
may be laid down by this Court. Such requirement, it was submitted, was implicit requirement of law
but was not being followed.
18. Laying down safeguards to enforce constitutional guarantee under
Article 21 was necessary in view of the Sixth Report dated 19th December,
2014 of the Standing Committee on Social Justice and Empowerment (2014-15) on
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Amendment Bill, 2014 rejecting the stand of the Ministry to the effect that
there was no need to provide for action against false or malafide implication under
the Atrocities Act. It was observed therein:-
“3.9 The Committee are not inclined to accept the contention of
the Ministry that those who are found to be misusing the provisions of the Act
can be tried as per normal law of the land under the relevant sections of the
IPC. The Committee are of the firm view that the PoA Act, being a special law,
should be wholesome to the extent that it must contain an inbuilt provision for
securing justice for those too who are falsely implicated with mala fide under
it. More so, when the law makers have shown such perspicacity in addressing
such issues/misgivings when they inserted clause 14 (Punishment for false or malicious
complaint and false evidence) in ‘The Sexual Harassment of women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013.”
19. Thus, unless this Court laid down appropriate
guidelines, there will be no protection available against arbitrary arrests or false
implications in violation of Article 21 of the Constitution. The intervenor
submitted that preliminary enquiry must be held before arrest with regard to
the following factors:
“a. Date
and time of the incident and provocation.
b. Preexisting dispute between the parties or rivalry.
c. Gravity of the issue involved.
d. Nature of allegations by both the parties.
e. Necessary documents and evidence by the victim and accused to
substantiate their case to be placed before committee.
f. The proceedings may be recorded to avoid allegations of bias
and non-transparency.”
20. The
following further safeguards have been suggested by the counsel for the
intervenor:
“Arrest specifically
in connection with offences under POA Act should only be made with the prior
sanction of the Magistrate. However this may not apply in case arrest has to be
made in connection with other offences under IPC. Further the gravity of
offence also needs to be seen since most of the cases at the institutional level
are only on the basis of mere altercations or action by the public servants in
their official capacity. Secondly if the Accused under the POA Act surrenders with prior
notice to the Public Prosecutor, then his bail Application should be considered
on the same day and if not the regular bail, then at the least interim bail should
be granted in the interest of justice. This requirement may be read into
Section 18 of the POA Act.”
21.
In support of the submission that courts have acknowledged the misuse of law,
reliance has also been placed on the following Judgments :
(i) Judgment of the
Madras High Court in Jones
versus State, 2004 SCC OnLine Mad 922: 2004 CriLJ2755 wherein the High Court observed:
“This Court recently has brought
to light the misuse of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 against people of other community. This is another
example of misuse of the Act. The purpose of bringing SC & ST Act is to put
down the atrocities committed on the members of the scheduled castes and
scheduled tribes. The law enforcing authorities must bear in mind that it
cannot be misused to settle other disputes between the parties, which is alien
to the provisions contemplated under the Act. An Act enacted for laudable
purpose can also become unreasonable, when it is exercised overzealously by the
enforcing authorities for extraneous reasons. It is for the authorities to guard against such misuse of
power conferred on them.”
(ii)
Judgment of Gujarat High Court in Dr. N.T. Desai vs. State of Gujarat, (1997) 2 GLR 942 observing
:
“But then having closely
examined the complaint more particularly in the context and light of the backdrop
of the peculiar facts situation highlighted by the petitioner leading
ultimately to filing of the complaint, this Court prime facie at the very
outset is at some doubt about the complainant's story and yet if it readily,
mechanically like a gullible child accepts the allegations made in the
complaint at its face value, it would be surely blundering and wandering away
from the path of bail-justice, making itself readily available in the hands of
the scheming complainant who on mere asking will get arrested accused on some
false allegations of having committed non-bailable offence, under the Atrocity
Act, meaning thereby the Court rendering itself quite deaf, dumb and blind
mortgaging its commonsense, ordinary prudence with no perception for justice,
denying the rightful protection to the accused becoming ready pawn pliable in
the hands of sometime scheming, unscrupulous complainants !!! This sort of a surrender
to prima facie doubtful allegation in the complaint is not at all a judicial
approach, if not unjudicial !! At the cost of repetition, 1 make it clear that
these observations are only preliminary, at this stage only in peculiar
background of the case highlighted by petitioner-accused and for that purpose
may be even in future be so highlighted by the accused in some other cases to
the satisfaction of the Court ! The reason is having regard to the basic
cardinal tenets of the criminal jurisprudence more particularly in view of the
peculiar circumstances highlighted by the accused which allegedly actuated
complainant to victimise him, in case if ultimately at the end of trial what the accused has
submitted in defence is accepted as probable or true and as a result, the
accused is given a clean bill, holding that the complaint was nothing else but
false, concoction by way of spite to wreck the personal vengeance then in that
case what indeed would be the remedy and redresses in the hands of the
petitioner, who in the instant case is Doctor by profession and for that
purpose in other cases an innocent citizen? He stands not only stigmatised by
filing of a false complaint against him but he shall stand further subjected to
trial !! Not only that but before that even subjected to arrest before the
public eye and taken to Special Court where only he could pray for bail ! Thus,
subjected to all sort of agonies, pains and sufferings lowering his image and
esteem in the eye of public because the Court when approached adopted the
helpless attitude? Under such bewildering circumstances, what indeed would be the
face of the Court and the fate of the Administration of Justice denying bail to
some victimised innocent accused at crucial stage when he surrenders to the
Court custody for the purpose?!! Should the Court proclaiming doing justice
stand befooled at the hands of some mischievous complainant with head-down in
shame !! Supposing for giving false evidence before the Court, the complainant
is ordered to be prosecuted, but then will such prosecutions of complainant bring
back the damage already done to an innocent !! Bearing in mind this most
embarrassing and excruciating situation created by the complainant when, this
Court as a Constitutional functionary is duty bound to zealously protect the
liberty of citizen, should it be helplessly watching and passively surrendering
itself to sometimes prima facie ex-facie malicious complaint denying simple bail
to the accused? In this regard, perhaps, it may be idly said that accused can
be given compensation for the malicious prosecution and ultimate refusal of
bail or anticipatory bail !! True, but then in that case what compensation can
any Court would be in a position to give when the complainant is a person who
is poor enough unable to pay a single pie?!! Not only that but in case complainant
is rich and able to pay compensation then even can any monetary compensation
ever adequately compensate the wrong accused suffered at the hands of the
malicious complainant? It is here that the conscience of this Court stands
pricked and terribly perturbed and indeed will have a sleepless night if what
ought we do not know where the petitioner, in the facts and circumstances of
the case be quite innocent and accordingly a needy consumer of bail justice and
yet is unnecessarily subjected to arrest taken to the police custody and then before
Court because of denial of bail to him at this stage !!”
(iii)
Dealing with the same issue, the Gujarat High Court in Dhiren Prafulbhai Shah
versus State of Gujarat, 2016 CriLJ 2217 observed as
under:
“48. In the course of my present
sitting, I have come across various cases wherein the provisions of Atrocities
Act are misused. I find that various complaints are filed immediately after
elections, be it Panchayat, Municipal or Corporation, alleging offence under
the Atrocities Act. I have no hesitation in saying that in most of the cases,
it was found that the F.I.R.s/Complaints were filed only to settle the score with
their opponents after defeat in the elections. I have also come across various
cases, wherein, private civil disputes arising out of property, monetary matters, dispute between an employee and employer, dispute
between the subordinate and his superior - are given penal and the complaints
are being filed either under Section 190 r/w. 200 or F.I.Rs. at the police station.
The matter in hand is one another example of misuse of the Act. As observed by
me earlier, the purpose of bringing SC and ST Act is to put-down the atrocities
committed on the members of the Scheduled Castes and Scheduled Tribes. The law enforcing
authorities must bear in mind that it cannot be misused to settle other
disputes between the parties like the case one in hand, which is alien to the provisions
contemplated under the laudable Act. An Act enacted for laudable purpose can
also become unreasonable, when it is exercised over-zealously by the enforcing
authorities for extraneous reasons. It is for the authorities to guard against
such misuse of power conferred on them.
49. Passing mechanically orders by the Court of Magistrates in
complaint and/or registration of the F.I.R. at the Police Station, which do not
have any criminal element, causes great hardships, humiliation, inconvenience
and harassment to the citizens. For no reasons the reputation of the citizen is
put to stake as immediately after the said orders are passed, innocent citizens
are turned as accused. One should not overlook the fact that there is
Section-18 in the Atrocities Act, which imposes a bar so far as the grant of
anticipatory bail is concerned, if the offence is one under the Atrocities Act.
If a person is accused having committed murder, dacoity, rape, etc., he can
pray for anticipatory bail under Section-438 of the Cr.P.C. on the ground that
he is innocent and has been falsely involved, but if a person alleged to have
committed an offence under the Atrocities Act, cannot pray for an anticipatory
bail because of the bar of Section-18 of the Act, and he would get arrested.
This is the reason for the authorities to guard against any misuse of the Provisions
of the Atrocities Act.”
(iv)
Judgment of Gujarat High Court in Pankaj D Suthar versus State of Gujarat, (1992)1 GLR 405 observing :
“4. …But then, what according to
this Court is the most welcome step by way of collective wisdom of the
Parliament in ushering social beneficial legislation cannot be permitted to be
abused and converted into an instrument to blackmail to wreak some personal vengeance
for settling and scoring personal vendetta or by way of some counter-blasts against
opponents some public servants, as prima facie appears to have been done in the
present case. The basic questions in such circumstances therefore are-Whether a
torch which is lighted to dispel the darkness can it be permitted to set on
fire the innocent surroundings? Whether a knife an instrument which is meant
for saving human life by using the same in the course of operation by a surgeon,
can it be permitted to be used in taking the life of some innocent? The very same fundamental question arises in the facts
and circumstances of this case also, viz., 'whether any statute like the
present Atrocities Act, especially enacted for the purposes of protecting
weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently
converting the same into a weapon of wrecking personal vengeance on the
opponents?' The answer
to this question is undoubtedly and obviously 'No'. Under such circumstances, if
the Courts are to apply such provision of Section 18 of the Atrocities Act
quite mechanically and blindly merely guided by some general and popular
prejudices based on some words and tricky accusations in the complaint on mere
assumptions without intelligently scrutinising and testing the probabilities,
truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc.,
then it would be simply unwittingly and credulously playing in the hands of
some scheming unscrupulous complainant in denying the justice. Virtually, it would be tantamount to abdicating and
relegating its judicial duty, function of doing justice in such matters in
favour and hands of such unscrupulous complainant by making him a Judge in his
own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any
particular Act and for that purpose the rules made thereunder are applicable to
the facts of a particular case or not, is always and unquestionably a matter
which lies strictly and exclusively within the domain of 'judicial consideration-discretion'
and therefore neither mere allegations made in the complainant by themselves
nor bare denials by the accused can either automatically vest or divest the
Court from discharging its ultimate judicial function-duty to closely scrutinise
and test the prima facie dependability of the allegations made in the complaint
and reach its own decision.”
(v) Judgment of Bombay High Court in Sharad versus State of
Maharashtra, 2015(4) BomCR(Crl) 545 observing :
“12. We hasten to add that such type of complaints for rampant misuse
of the provisions of Section 3(1)(x) of the Scheduled Castes & Scheduled
Tribes (Prevention of Atrocities) Act, 1989, are largely being filed particularly
against Public Servants/quasi judicial/judicial officers with oblique motive for
satisfaction of vested interests. We think the learned Members of the Bar have enormous
social responsibility and obligation to ensure that the social fabric of the society is not damaged
or ruined. They must ensure that exaggerated versions should not be reflected
in the criminal complaints having the outrageous effect of independence of judicial
and quasi judicial authorities so also the public servants. We cannot tolerate putting
them in a spooked, chagrined and fearful state while performing their public duties
and functions. We also think that a serious re-look at the provisions of the
Act of 1989 which are being now largely misused is warranted by the
Legislature, of course, on the basis of pragmatic realities and public opinion.
A copy of this Judgment is directed to be sent to the Law Commission for information.”
22. It was, thus, submitted that
above judgments are merely illustrations to show that the abuse of law was rampant.
If mere accusations are treated as sufficient, it may unfairly damage the personal
and professional reputation of a citizen. There is a need to balance the
societal interest and peace on the one hand and the protection of rights of
victims of such false allegations on the other. If allegations are against an
employee, a committee should be formed in every department as follows:-
“i. The employer or Head of every institution may be
directed to constitute an internal committee to look into the matters and
specific grievances related to atrocities committed on the members of SC/ST.
…………..
ii. That before proceeding to lodge any FIR or criminal
complaint, a written complaint should made to the internal committee of the
institution along with supportive evidence.
iii. Such committee may be given the power to conduct a
preliminary inquiry into the matter by hearing both the parties and other
evidence, so as to ascertain the existence of a prima facie case under the POA
Act.”
23. It has been further
suggested that Magistrate must verify the averments in a Complaint/FIR to
ascertain whether a prima
facie case is made out and whether
arrest was necessary and only then arrest should be made or continued.
24. It is further submitted by the counsel for the intervenor that the
Atrocities Act is also prone to misuse on account of monetary incentive being
available merely for lodging a case under Rule 12(4) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Such incentive may
encourage not only genuine victims but, there being no safeguard even against a
false case being registered only to get the monetary incentive, such false
cases may be filed without any remedy to the affected person.
25. Reference has
also been made to Annual Report 2016-2017 of the Ministry of Social Justice and
Empowerment and data compiled by the Government of Maharashtra for the years
1990 to 2013 (dated 30th April, 2013) in respect of offences registered under
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and
Protection of Civil Rights Act, 1955 against Maharashtra Members of Parliament,
Member of Legislative Assembly, Zill Parishad Adhyaksha, Gramsevak, Talathi,
B.D.O., Collector, Palakmantri, Chief Minister, Home Minister, IPS, IAS, IRS,
IFS, MNP Commissioner, MNP Assistant Commissioner, other Government
Officer/Servant, other non- Government Officers/Servants (numeric data prepared
on the basis of information available).
26. As per data (Crime in India 2016 – Statistics) compiled by the National
Crime Records Bureau, Ministry of Home Affairs under the headings “Police Disposal of
Crime/Atrocities against SCs cases (State/UT-wise)-2016” (Table 7A.4) and “Police Disposal of Crime/Atrocities against STs Cases
(State/UTwise) – 2016” (Table
7C.4) it is mentioned that in the year 2016, 5347 cases were found to be false
cases out of the investigated out of SC cases and 912 were found to be false
cases out of ST cases. It was pointed out that in the year 2015, out of 15638 cases
decided by the courts, 11024 cases resulted in acquittal or discharge, 495
cases were withdrawn and 4119 cases resulted in conviction. (Reference: Annual Report 2016-2017 published by the Department
of Social Justice & Empowerment, Ministry of Social Justice and
Empowerment, Government of India).
Interventions against the appellant
27. Intervention application has also been filed by
one Ananda Sakharam Jadhav who claims to be convenor of the Bahujan Karmachari
Kalyan Sangh. Shri C.U. Singh, learned senior counsel appearing for the said
intervenor, submitted that where law is clear no guideline should be issued by
the Court. Reliance has been placed on State of Jharkhand and Anr. Versus Govind Singh, (2005)10 SCC 437 and Rohitash
Kumar and Ors versus Om Prakash Sharma and Ors., (2013)11 SCC 451. It was submitted that this Court could not lay down guidelines
in the nature of legislation.
28. Shri C.U. Singh submitted that the Section 18 of
the Atrocities Act has already been upheld in Balothia (supra)
and Manju Devi versus Onkarjit
Singh Ahluwalia, (2017) 13 SCC 439. He also relied upon Statement of Objects and
Reasons of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Bill, 2013 dated 14th July,
2014. Therein it is stated that there are procedural hurdles such as
non-registration of cases, procedural delays in investigation, arrests and
filing of charge-sheets and delays in trial and low conviction rate on account
of which in spite of deterrent provisions, atrocities against SC/ST continues
at disturbing level which necessitated amendment in the Act.
29. Further intervention has been sought by one Yogendra Mohan
Harsh. Learned counsel for the said intervenor submitted that atrocities
against SCs and STs are increasing and if submissions of amicus are to be accepted, the Act will be rendered ineffective and
teethless.
Submissions of learned Additional Solicitor General (ASG)
30. Learned ASG submitted that in view of decisions
in Balothia (supra) and Manju Devi (supra)
there is no occasion to go into the issue of validity of provisions of the
Atrocities Act. He also submitted that decisions of this Court in Vilas Pandurang Pawar and
Anr. versus State of Maharashtra and Ors., (2012) 8 SCC 795 and Shakuntla Devi versus
Baljinder Singh, (2014) 15 SCC 521 permit grant of anticipatory
bail if no prima facie case is made out. Thus, in genuine cases anticipatory
bail can be granted. He also submitted that the Government of India had issued
advisories on 3rd February, 2005, 1st April,
2010 and 23rd May, 2016 and also further amended the Atrocities Act
vide Amendment Act No. 1 of 2016 which provides for creation of Special Courts as
well as Exclusive Special Courts. Referring to the data submitted by the National
Crime Records Bureau (NCRB) it was further submitted that out of the total
number of complaints investigated by the police in the year 2015, both for the
persons belonging to the SC category and also belonging to the ST category, in
almost 15-16% cases,
the competent police authorities had filed closure reports. Out of the cases disposed of by the courts in 2015, more than 75%
cases have resulted in acquittal/withdrawal or compounding of the cases. It was
submitted that certain complaints were received alleging misuse of the
Atrocities Act and a question was also raised in Parliament as to what
punishment should be given against false cases. The reply given was that
awarding punishment to members of SCs and STs for false implication would be
against the spirit of the Act. A press statement dated 19th March,
2015 was issued by the Central Government to the effect that in case of false
cases, relevant Sections of IPC can be invoked. It was submitted that no
guideline should be laid down by this Court which may be legislative in nature.
Consideration of the issue whether directions can be issued by
this Court to protect fundamental right under Article 21 against uncalled for
false implication and arrests
31. We may, at the outset, observe that jurisdiction of this
Court to issue appropriate orders or directions for enforcement of fundamental
rights is a basic feature of the Constitution. This Court, as the ultimate
interpreter of the Constitution, has to uphold the constitutional rights and
values. Articles 14, 19 and 21 represent the foundational values which form the
basis of the rule of law. Contents of the said rights have to be interpreted in
a manner which enables the citizens to enjoy the said rights. Right to equality
and life and liberty have to be protected against any unreasonable procedure,
even if it is enacted by the legislature. The substantive as well as procedural laws must conform to Articles
14 and 21. Any abrogation of the said rights has to be nullified by this Court
by appropriate orders or directions. Power of the legislature has to be
exercised consistent with the fundamental rights. Enforcement of a legislation
has also to be consistent with the fundamental rights. Undoubtedly, this Court has
jurisdiction to enforce the fundamental rights of life and liberty against any
executive or legislative action. The expression ‘procedure established by law’
under Article 21 implies just, fair and reasonable procedure. [Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 to 85]
32. This Court is not expected to adopt a passive or negative role
and remain bystander or a spectator if violation of rights is observed. It is necessary to
fashion new tools and strategies so as to check injustice and violation of
fundamental rights. No procedural technicality can stand in the way of
enforcement of fundamental rights. [Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13]. There
are enumerable decisions of this Court where this approach has been adopted and
directions issued with a view to enforce fundamental rights which may sometimes
be perceived as legislative in nature. Such directions can certainly be issued
and continued till an appropriate legislation is enacted. [Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N., (1996) 6 SCC 756]. Role of this Court travels beyond merely dispute settling and directions can
certainly be issued which are not directly in conflict with a valid statute. [Supreme Court Bar Asson. V. UOI (1998) 4 SCC 409, para 48]. Power to declare law carries with it, within the limits of duty, to make law
when none exists. [Dayaram vs. Sudhir Batham (2012) 1 SCC 333, para 18].
33. Constitution Bench of this Court in Union of India versus Raghubir
Singh, (1989(2) SCC 754 observed :
“7. … It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law
governing the lives of citizens and regulating the functions of the State flows
from the decisions of the superior Courts. "There was a time,"
observed Lord Reid, "When it was thought almost indecent to suggest that
Judges make law - They only declare it.... But we do not believe in fairly tales
any more." "The Judge as Law Maker", p. 22. In countries such as
the United Kingdom, where Parliament as the legislative organ is supreme and stands
at the apex of the constitutional structure of the State, the role played by
judicial law-making is limited.
In the first place the function of the Courts is restricted to
the interpretation of laws made by Parliament, and the Courts have no power to
question the validity of Parliamentary statutes, the Diceyan dictum holding true
that the British Parliament is paramount and all powerful. In the second place,
the law enunciated in every decision of the Courts in England can be superseded
by an Act of Parliament. As Cockburn C.J. observed in Exp. Canon Selwyn (1872) 36 JP Jo 54:
There is no
judicial body in the country by which the validity of an Act of Parliament
could be questioned. An act of the Legislature is superior in authority to any Court
of Law.
And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All ER 779
referred to a Parliamentary statute as "the highest form of law...which
prevails over every other form of law." The position is substantially
different under a written Constitution such as the one which governs us. The
Constitution of India, which represents the Supreme Law of the land, envisages three
distinct organs of the State, each with its own distinctive functions, each a
pillar of the State.
Broadly, while Parliament and the State Legislature fin India
enact the law and the Executive Government implements it, the judiciary sits in
judgment not only on the implementation of the law by the Executive but also on
the validity of the Legislation sought to be implemented One of the functions
of the superior judiciary in India is to examine the competence and validity of
legislation, both in point of legislative competence as well as its consistency
with the Fundamental Rights. In this regard, the Courts in India possess a
power not known to the English Courts. Where a statute is declared invalid in India it cannot be
reinstated unless constitutional sanction is obtained therefore by a
constitutional amendment of an appropriately modified version of the statute is
enacted which accords with constitutional prescription.
The range of judicial, review recognised in the superior judiciary
of India is perhaps the widest and the most extensive known to the world of law.
The power extends to examining the validity of even an amendment
to the Constitution, for now it has been repeatedly held that no constitutional
amendment can be sustained which [violates the basic structure of the
Constitution. See Kesavananda Bharati Sripadagalayaru v. State of Kerala AIR1973SC1461),
Smt. Indira Nehru. Gandhi v. Raj Narain [1976]2SCR347], Minerva Mills Ltd. v.
Union of India [1981]1SCR206] and recently in S. P. Sampath Kumar v. Union of
India [(1987)ILLJ128SC]. With this impressive expanse of judicial power, it is
only right that the superior Courts in India should be conscious of the
enormous responsibility which rests on them. This is specially true of the Supreme Court, for as the highest
Court in the entire judicial system the law declared by it is, by Article 141
of the Constitution, binding on« all Courts within the territory of India.”
34. The law has been summed up in a decision in Rajesh Kumar versus State, (2011) 13 SCC 706 as follows:
“62.
Until the decision was rendered in Maneka Gandhi (supra), Article 21 was viewed
by this Court as rarely embodying the Diceyian concept of rule of law that no one
can be deprived of his personal liberty by an executive action unsupported by
law. If there was a law which provided some sort of a procedure it was enough
to deprive a person of his life or personal liberty. In this connection, if we
refer to the example given by Justice S.R. Das in his judgment in A.K. Gopalan (supra) that if the law provided the Bishop of Rochester
'be boiled in oil' it would be valid under Article 21. But after the decision
in Maneka Gandhi (supra) which marks a watershed in the development of constitutional
law in our country, this Court, for the first time, took the view that Article
21 affords protection not only against the executive action but also against
the legislation which deprives a person of his life and personal liberty unless
the law for deprivation is reasonable, just and fair. and it was held that the
concept of reasonableness runs like a golden thread through the entire fabric
of the Constitution and it is not enough for the law to provide some semblance
of a procedure. The procedure for depriving a person of his life and personal
liberty must be eminently just, reasonable and fair and if challenged before
the Court it is for the Court to determine whether such procedure is
reasonable, just and fair and if the Court finds that it is not so, the Court
will strike down the same.”
35.
Apart from the above, there are enumerable occasions when this Court has issued
directions for enforcement of fundamental rights e.g., directions regarding
functioning of caste scrutiny Committee [Madhuri Patil v. Tribal Development (1994) 6 SCC 241]; directions to regulate appointment of law officers [State of Punjab versus
Brijeshwar Singh Chahal (2016) 1 SCC 1]; directions to regulate powers of this Court and High Courts in designating
Senior Advocates [Indira Jaising versus Supreme Court of India (2017) 9 SCC 766]; guidelines have been issued for the welfare of a
child accompanying his/her mother in imprisonment [R.D. Upadhyay versus State of A.P. (2007) 15 SCC 337]; directions for checking trafficking of women and children [Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1]; for night shelters for the homeless, Union for Civil Liberties versus UOI (2010)5 SCC 318;
directions to check malnutrition in children, People’s Union for Civil Liberties versus UOI (2004) 12 SCC 104 and (2010) 15 SCC 57;
directions to provide medical assistance by Government run hospitals, Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4 SCC 37;
directions for protection of human rights of prisoners, Sunil Batra versus Delhi Admn. (1978) 4 SCC 494;
directions for speedy trial of under trials, Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98. The
list goes on.
36. Issuance of directions to regulate the power of arrest has also
been the subject matter of decisions of this Court. In Joginder Kumar versus State
of U.P., (1994) 4 SCC 260 this Court observed that horizon of human rights is
expanding. There are complaints of violation of human rights because of
indiscriminate arrests. The law of arrest is of balancing individual rights, liberties
and privileges, duties, obligations and responsibilities. On the one side is
the social need to check a crime, on the other there is social need for
protection of liberty, oppression and abuse by the police and the other law
enforcing agencies. This Court noted the 3rd Report of
the National Police Commission to the effect that power of arrest was one of
the chief sources of corruption of police. 60% of arrests were unnecessary or
unjustified. The arrest could be unjustified only in grave offences to inspire
the confidence of the victim, to check the accused from committing further
crime and to prevent him from absconding. The National Police Commission
recommended that the police officer making arrest should record reasons. This
Court observed that no arrest can be made merely because it is lawful to do so.
The exercise of power must be for a valid purpose. Except in heinous offences arrest
must be avoided. This requirement was read into Article 21 [Para 21] . In Arnesh Kumar versus
State of Bihar, (2014) 8 SCC 273 this Court observed that arrest brings humiliation,
curtails freedom and casts scars forever. It is considered a tool for harassment
and oppression. The drastic power is to be exercised with caution. Power of arrest is a lucrative source of corruption. Referring
to the amendment of law in Section 41 Cr.P.C., in the
light of recommendations of the Law Commissions, it was directed that arrest
may be justified only if there is ‘credible information’ or ‘reasonable
suspicion’ and if arrest was necessary to prevent further offence or for proper
investigation or to check interference with the evidence. Reasons are required
to be recorded. However, compliance on the ground is far from satisfactory for obvious
reasons. The scrutiny by the Magistrates is also not adequate. This Court
issued the following directions:
“11. Our
endeavour in this judgment is to ensure that police officers do not arrest the
accused unnecessarily and Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed above, we give the following
directions:
11.1.
All the State Governments to
instruct its police officers not to automatically arrest when a case under Section
498-A IPC is registered but to satisfy themselves about the necessity for
arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing
specified sub-clauses under Section 41(1) (b)(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which necessitated the arrest,
while forwarding/producing the accused before the Magistrate for further
detention;
11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police officer in terms
aforesaid and only after recording its satisfaction, the Magistrate will
authorise detention;
11.5.
The decision not to arrest an
accused, be forwarded to the Magistrate within two weeks from the date of the
institution of the case with a copy to the Magistrate which may be extended by
the Superintendent of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be
served on the accused within two weeks from the date of institution of the
case, which may be extended by the Superintendent of Police of the district for
the reasons to be recorded in writing;
11.7. Failure
to comply with the directions aforesaid shall apart from rendering the police
officers concerned liable for departmental action, they shall also be liable to
be punished for contempt of court to be instituted before the High Court having
territorial jurisdiction.
11.8. Authorising
detention without recording reasons as aforesaid by the Judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court.”
37. In D.K. Basu versus State of W.B., (1997) 1 SCC 416 this Court, to check abuse of arrest and drastic
police power, directed as follows:
“35. We,
therefore, consider it appropriate to issue the following requirements to be
followed in all cases of arrest or detention till legal provisions are made in that
behalf as preventive measures:
(1) The police personnel carrying out the arrest
and handling the interrogation of the arrestee should bear accurate, visible
and clear identification and name tags with their designations. The particulars
of all such police personnel who handle interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out the arrest of the
arrestee shall prepare a memo of arrest at the time of arrest and such memo
shall be attested by at least one witness, who may either be a member of the
family of the arrestee or a respectable person of the locality from where the
arrest is made. It shall also be countersigned by the arrestee and shall contain
the time and date of arrest.
(3) A person who has been arrested or detained and is being held
in custody in a police station or interrogation centre or other lock-up, shall
be entitled to have one friend or relative or other person known to him or
having interest in his welfare being informed, as soon as practicable, that he
has been arrested and is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or a relative
of the arrestee.
(4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend or relative of
the arrestee lives outside the district or town through the Legal Aid Organisation
in the District and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put under arrest
or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the name of the
next friend of the person who has been informed of the arrest and the names and
particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined
at the time of his arrest and major and minor injuries, if any present on
his/her body, must be recorded at that time. The “Inspection Memo” must be
signed both by the arrestee and the police officer effecting the arrest and its
copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody by a doctor on
the panel of approved doctors appointed by Director, Health Services of the
State or Union Territory concerned. Director, Health Services should prepare such
a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district
and State headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing the
arrest, within 12 hours of effecting the arrest and at the police control room
it should be displayed on a conspicuous notice board.
36. Failure
to comply with the requirements hereinabove mentioned shall apart from
rendering the official concerned liable for departmental action, also render
him liable to be punished for contempt of court and the proceedings for
contempt of court may be instituted in any High Court of the country, having territorial
jurisdiction over the matter.
37. The
requirements, referred to above flow from Articles 21 and 22(1) of the
Constitution and need to be strictly followed. These would apply with equal force
to the other governmental agencies also to which a reference has been made
earlier.”
38. In Rini Johar (supra) this Court considered the issue of wrongful
arrest and payment of compensation. It was observed that wrongful arrest
violates Article 21 of the Constitution and thus the victim of arrest was
entitled to compensation. This Court noted the observations and guidelines laid
down against wrongful arrests in Joginder Kumar (supra), D.K. Basu (supra),
Arnesh Kumar (supra) and other cases and held that since the
arrest is in violation of guidelines laid down by this Court and is violative
of Article 21, the person arrested was entitled to compensation.
39. In Subramanian
Swamy versus UOI, (2016) 7 SCC 221 this Court considered the issue of validity of
provisions creating defamation as an offence. In the course of said judgment,
need for harmony in competing claims of different interests was considered.
This Court observed that the fundamental rights are all parts of an integrated
scheme and their waters must mix to constitute grand flow of impartial justice [Para 137].
This Court also observed that legislation
should not invade the rights and should not smack of arbitrariness. Considering
the principles of reasonableness, this Court observed that ultimate impact of
rights has to be determined. This was different from abuse or misuse of legislation.
Proportionality of restraint has to be kept in mind while determining
constitutionality. Concept of public interest and social interest determine the
needs of the society [Para 130]. After referring to Maneka Gandhi (supra), it was observed that it is the duty of this Court to
strike a balance in the right of speech and right to protect reputation [Para 144].
The restriction of law should be rational and connected to the purpose for
which it is necessary. It should not be arbitrary or excessive [Para 194 and 195].
40. Again this Court in Siddharam Satlingappa Mhetre versus State of Maharashtra, (2011) 1 SCC 694 laid down parameters for exercise of discretion of anticipatory
bail having regard to the fundamental right of liberty under Article 21 of the
Constitution and the needs of the society where such liberty may be required to
be taken away. It was observed:
“Relevance and importance
of personal liberty
36. All
human beings are born with some unalienable rights like life, liberty and
pursuit of happiness. The importance of these natural rights can be found in
the fact that these are fundamental for their proper existence and no other
right can be enjoyed without the presence of right to life and liberty.
Life bereft of liberty would be without honour and dignity and it
would lose all significance and meaning and the life itself would not be worth
living. That is why “liberty” is called the very quintessence of a civilised
existence.
…
52.
The fundamental rights represent
the basic values enriched by the people of this country. The aim behind having elementary
right of the individual such as the Right to Life and Liberty is not fulfilled
as desired by the Framers of the Constitution. It is to preserve and protect
certain basic human rights against interference by the State. The inclusion of
a chapter in the Constitution is in accordance with the trends of modern
democratic thought. The object is to ensure the inviolability of certain
essential rights against political vicissitudes.
…
54. Life and personal liberty are the most prized
possessions of an individual. The inner urge for freedom is a natural phenomenon
of every human being. Respect for life, liberty and property is not merely a
norm or a policy of the State but an essential requirement of any civilised
society.
64. The
object of Article 21 is to prevent encroachment upon personal liberty in any
manner. Article 21 is repository of all human rights essential for a person or
a citizen. A fruitful and meaningful life presupposes life full of dignity,
honour, health and welfare. In the modern “Welfare Philosophy”, it is for the State
to ensure these essentials of life to all its citizens, and if possible to
non-citizens. While invoking the provisions of Article 21, and by referring to
the oftquoted statement of Joseph Addison, “Better to die ten thousand deaths
than wound my honour”, the Apex Court in Khedat Mazdoor Chetna Sangath v. State
of M.P. (1994) 6 SCC 260 posed to itself a question “If dignity or honour
vanishes what remains of life?” This is the significance of the Right to Life
and Personal Liberty guaranteed under the Constitution of India in its Third Part.
…
International Charters
Universal
Declaration of Human Rights, 1948
80. Article 3 of the Universal Declaration says:
“3. Everyone has
the right to life, liberty and security of person.”
Article 9 provides:
“9. No
one shall be subjected to arbitrary arrest, detention or exile.”
Article 10
says:
“10. Everyone is entitled in full equality to a fair and public hearing
by an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.” [As to its legal
effect, see M. v. United Nations & Belgium (1972) 45 Inter LR 446 (Inter LR
at pp. 447, 451.)]
86.
According to the Report of the
National Police Commission, when the power of arrest is grossly abused and
clearly violates the personal liberty of the people, as enshrined under Article
21 of the Constitution, then the courts need to take serious notice of it. When
conviction rate is admittedly less than 10%, then the police should be slow in
arresting the accused. The courts considering the bail application should try
to maintain fine balance between the societal interest vis-Ã -vis personal
liberty while adhering to the fundamental principle of criminal jurisprudence
that the accused is presumed to be innocent till he is found guilty by the
competent court.
87. The
complaint filed against the accused needs to be thoroughly examined including
the aspect whether the complainant has filed a false or frivolous complaint on earlier
occasion. The court should also examine the fact whether there is any family
dispute between the accused and the complainant and the complainant must be
clearly told that if the complaint is found to be false or frivolous, then
strict action will be taken against him in accordance with law. If the
connivance between the complainant and the investigating officer is established
then action be taken against the investigating officer in accordance with law.
88. The gravity of charge and the exact role of the accused
must be properly comprehended. Before arrest, the arresting officer must record
the valid reasons which have led to the arrest of the accused in the case
diary. In exceptional cases the reasons could be recorded immediately after the
arrest, so that while dealing with the bail application, the remarks and
observations of the arresting officer can also be properly evaluated by the court.
89. It is
imperative for the courts to carefully and with meticulous precision evaluate
the facts of the case. The discretion must be exercised on the basis of the
available material and the facts of the particular case. In cases where the
court is of the considered view that the accused has joined investigation and
he is fully cooperating with the investigating agency and is not likely to
abscond, in that event, custodial interrogation should be avoided.
90. A great
ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to
many serious consequences not only for the accused but for the entire family
and at times for the entire community. Most people do not make any distinction
between arrest at a pre-conviction stage or post-conviction stage.
110. The Law
Commission in July 2002 has severely criticised the police of our country for
the arbitrary use of power of arrest which, the Commission said, is the result
of the vast discretionary powers conferred upon them by this Code. The
Commission expressed concern that there is no internal mechanism within the
Police Department to prevent misuse of law in this manner and the stark reality
that complaint lodged in this regard does not bring any result. The Commission
intends to suggest amendments in the Criminal Procedure Code and has invited
suggestions from various quarters. Reference is made in this article to the
41st Report of the Law Commission wherein the Commission saw “no justification”
to require a person to submit to custody, remain in prison for some days and then
apply for bail even when there are reasonable grounds for holding that the
person accused of an offence is not likely to abscond or otherwise misuse his
liberty. Discretionary power to order anticipatory bail is required to be
exercised keeping in mind these sentiments and spirit of the judgments of this
Court in Sibbia case (1980)2 SCC 565 and Joginder Kumar v. State of U.P.(1994)4
SCC 260.
112. The
following factors and parameters can be taken into consideration while dealing
with the anticipatory bail:
(i) The nature and gravity of the accusation and
the exact role of the accused must be properly comprehended before arrest is
made;
(ii) The antecedents of the applicant including the fact as to whether
the accused has previously undergone imprisonment on conviction by a court in
respect of any cognizable offence;
(iii) The possibility of the applicant to flee
from justice;
(iv) The possibility of the accused’s likelihood to repeat similar
or other offences;
(v) Where the accusations have been made only with the
object of injuring or humiliating the applicant by arresting him or her;
(vi)
Impact of grant of anticipatory bail particularly in cases of large magnitude
affecting a very large number of people;
(vii) The courts must evaluate the
entire available material against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the case. The cases in
which the accused is implicated with the help of Sections 34 and 149 of the
Penal Code, 1860 the court should consider with even greater care and caution
because overimplication in the cases is a matter of common knowledge and
concern;
(viii) While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors, namely, no prejudice should be
caused to the free, fair and full investigation and there should be prevention of
harassment, humiliation and unjustified detention of the accused;
(ix) The
court to consider reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
(x) Frivolity in prosecution should
always be considered and it is only the element of genuineness that shall have
to be considered in the matter of grant of bail and in the event of there being
some doubt as to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted
to those exceptional cases where arresting the accused is imperative in the
facts and circumstances of that case. The court must carefully examine the
entire available record and particularly the allegations which have been directly
attributed to the accused and these allegations are corroborated by other
material and circumstances on record.
114. These are
some of the factors which should be taken into consideration while deciding the
anticipatory bail applications. These factors are by no means exhaustive but they
are only illustrative in nature because it is difficult to clearly visualise
all situations and circumstances in which a person may pray for anticipatory
bail. If a wise discretion is exercised by the Judge concerned, after
consideration of the entire material on record then most of the grievances in favour
of grant of or refusal of bail will be taken care of. The legislature in its
wisdom has entrusted the power to exercise this jurisdiction only to the Judges
of the superior courts. In consonance with the legislative intention we should
accept the fact that the discretion would be properly exercised. In any event,
the option of approaching the superior court against the Court of Session or
the High Court is always available.
Irrational and indiscriminate arrests are gross violation of
human rights
115. In
Joginder Kumar case (supra) a three-Judge Bench of this Court has referred to
the 3rd Report of the National Police Commission, in which it is mentioned that
the quality of arrests by the police in India mentioned the power of arrest as one
of the chief sources of corruption in the police. The Report suggested that, by
and large, nearly 60% of the arrests were either unnecessary or unjustified and
that such unjustified police action accounted for 43.2% of the expenditure of
the jails.
116. Personal
liberty is a very precious fundamental right and it should be curtailed only
when it becomes imperative according to the peculiar facts and circumstances of
the case.
117. In case,
the State considers the following suggestions in proper perspective then
perhaps it may not be necessary to curtail the personal liberty of the accused
in a routine manner. These suggestions are only illustrative and not exhaustive:
(1) Direct the accused to join the investigation and only when the accused does
not cooperate with the investigating agency, then only the accused be arrested.
(2) Seize either the passport or such other related documents,
such as, the title deeds of properties or the fixed deposit receipts/share
certificates of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of a number
of persons which according to the prosecution are necessary in view of the
facts of the particular case.
(5) The accused be directed to furnish undertaking that he would
not visit the place where the witnesses reside so that the possibility of
tampering of evidence or otherwise influencing the course of justice can be
avoided.
(6) Bank accounts be frozen for small duration during the
investigation.
118. In case
the arrest is imperative, according to the facts of the case, in that event,
the arresting officer must clearly record the reasons for the arrest of the
accused before the arrest in the case diary, but in exceptional cases where it becomes
imperative to arrest the accused immediately, the reasons be recorded in the
case diary immediately after the arrest is made without loss of any time so
that the court has an opportunity to properly consider the case for grant or refusal
of bail in the light of reasons recorded by the arresting officer.
119. Exercise
of jurisdiction under Section 438 CrPC is an extremely important judicial
function of a Judge and must be entrusted to judicial officers with some
experience and good track record. Both the individual and society have vital interest
in orders passed by the courts in anticipatory bail applications.
120. It is
imperative for the High Courts through its judicial academies to periodically
organise workshops, symposiums, seminars and lectures by the experts to
sensitise judicial officers, police officers and investigating officers so that
they can properly comprehend the importance of personal liberty vis-Ã -vis
social interests. They must learn to maintain fine balance between the personal
liberty and the social interests”
41. It is, thus, too late in the day to accept an objection that
this Court may not issue any direction which may be perceived to be of
legislative nature even if it is necessary to enforce fundamental rights under
Articles 14 and 21 of the Constitution.
Further consideration of potential impact of working of Atrocities
Act on spreading casteism
42.
In the light of submissions made, it is necessary to express concern that
working of the Atrocities Act should not result in perpetuating casteism which
can have an adverse impact on integration of the society and the constitutional
values. Such concern has also been expressed by this Court on several occasions.
Secularism is a basic feature of the Constitution. Irrespective of caste or religion, the Constitution guarantees equality
in its preamble as well as other provisions including Articles 14-16. The
Constitution envisages a cohesive, unified and casteless society.
43. Dr. B.R.
Ambedkar, in his famous speech on 25th November,
1949, on conclusion of deliberations of the Constituent Assembly, stated :
“These principles of liberty, equality and fraternity
are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one
from the other is to defeat the very purpose of democracy. Liberty cannot be
divorced from equality, equality cannot be divorced from liberty. Nor can
liberty and equality be divorced from fraternity. Without equality, liberty
would produce the supremacy of the few over the many. Equality without liberty
would kill individual initiative. Without fraternity, liberty and equality
could not become a natural course of things. It would require a constable to
enforce them. …. … …
… … … … …
In India there are castes. The castes are
antinational. In the first place because they bring about separation in social
life. They are anti-national also because they generate jealousy and antipathy between
caste and caste. But we must overcome all these difficulties if we wish to
become a nation in reality. For fraternity can be a fact only when there is a
nation. Without fraternity, equality and liberty will be no deeper than coats
of paint.”
44. In Indra Sawhney and Ors
versus Union of India and Ors., 1992 Supp(3) SCC 217 this
Court observed:
“339.
Secularism is the basic feature of the Indian Constitution. It envisages a
cohesive, unified and casteless
society. The Constitution has completely obliterated the caste system and has
assured equality before law. Reference to caste under Articles 15(2) and 16(2)
is only to obliterate it. The prohibition on the ground of caste is total, the
mandate is that never again in this country caste shall raise its head. Even access
to shops on the ground of caste is prohibited. The progress of India has been from casteism to egalitarianism —
from feudalism to freedom.
340. The caste system which has been put in the grave by the framers
of the Constitution is trying to raise its ugly head in various forms. Caste
poses a serious threat to the secularism and as a consequence to the integrity
of the country. Those who do not learn from the events of history are doomed to
suffer again. It is, therefore, of utmost importance for the people of India
to adhere in letter and spirit to the Constitution which has moulded this
country into a sovereign, socialist, secular democratic republic and has promised
to secure to all its citizens justice, social, economic and political, equality
of status and of opportunity.”
45.
In the Report of the National Commission to Review the Working of the
Constitution one of the failures of the working of the Constitution noted was
that the elections continued to be fought on caste lines. The said observations
have been quoted in People’s
Union for Civil Liberties (PUCL) and Anr. Etc. versus Union of India and Anr., (2003)4 SCC 399 as follows:
“20.
It is to be stated that similar views are expressed in the Report submitted in
March 2002 by the National Commission
to Review the Working of the Constitution appointed by the Union Government for
reviewing the working of the Constitution. Relevant recommendations are as
under: “Successes and failures 4.4. During the last half-a-century, there have been
thirteen general elections to the Lok Sabha and a much large number to various State
Legislative Assemblies. We can take legitimate pride in that these have been successful
and generally acknowledged to be free and fair. But, the experience has also brought
to the fore many distortions, some very serious, generating a deep concern in many
quarters. There are
constant references to the unhealthy role of money power, muscle power and
mafia power and to criminalisation, corruption, communalism and casteism.”
46. The speech of the then Prime Minister Shri Atal
Behari Vajpayee on this aspect was also noted in para 48 of the above judgment
which is as follows:
“Mr Divan
in course of his arguments, had raised some submissions on the subject —
‘Criminalisation of Politics’ and participation of criminals in the electoral
process as candidates and in that connection, he had brought to our notice the
order of the Election Commission of India dated 28-8-1997. … — ‘Whither
Accountability’, published in The Pioneer, Shri Atal Behari Vajpayee had called
for a national debate on all the possible alternatives for systematic changes
to cleanse our democratic governing system of its present mess. He has
expressed his dissatisfaction that neither Parliament nor the State Vidhan
Sabhas are doing, with any degree of competence or commitment, what they are
primarily meant to do: legislative function. According to him, barring
exceptions, those who get elected to these democratic institutions are neither
trained, formally or informally, in law-making nor do they seem to have an inclination
to develop the necessary knowledge and competence in their profession. He has
further indicated that those individuals in society who are generally interested
in serving the electorate and performing legislative functions are finding it
increasingly difficult to succeed in today’s electoral system and the electoral system has
been almost totally subverted by money power, muscle power, and vote bank considerations
of castes and communities. Shri
Vajpayee also had indicated that the corruption in the governing structures has,
therefore, corroded the very core of elective democracy. According to him, the
certainty of scope of corruption in the governing structure has heightened opportunism
and unscrupulousness among political parties, causing them to marry and divorce
one another at will, seek opportunistic alliances and coalitions often without
the popular mandate. Yet they capture and survive in power due to inherent
systematic flows. He
further stated that casteism, corruption and politicisation have eroded the
integrity and efficacy of our civil service structure also. The manifestos,
policies, programmes of the political parties have lost meaning in the present
system of governance due to lack of accountability.”
47. We are thus of the view that interpretation of
the Atrocities Act should promote constitutional values of fraternity and integration
of the society. This may require check on false implications of innocent
citizens on caste lines.
Issue of anticipatory bail
48. In the light of the above, we first consider the question whether
there is an absolute bar to the grant of anticipatory bail in which case the
contention for revisiting the validity of the said provision may need
consideration in the light of decisions of this Court relied upon by learned
amicus.
49. Section 18 of the Atrocities Act containing bar against grant of
anticipatory bail is as follows: “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.”
50. In Balothia
(supra), Section 18 was held not
to be violative of Articles 14 and 21 of the Constitution. It was observed that
exclusion of Section 438 Cr.P.C. in connection with offences under the Act had
to be viewed in the context of prevailing social conditions and the
apprehension that perpetrators of such atrocities are likely to threaten and
intimidate the victims and prevent or obstruct them in the prosecution of these
offenders, if they are granted anticipatory bail. Referring to the Statement of
Objects and Reasons, it was observed that members of SC and ST are vulnerable
and are denied number of civil rights and they are subjected to humiliation and
harassment. They assert their rights and demand statutory protection. Vested
interests try to cow them down and terrorise them. There was increase in
disturbing trend of commission of atrocities against members of SC and ST. Thus, the persons who are alleged to have committed such offences
can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation.
51. Though we find merit in the submission of learned amicus that
judgment of this Court in Ram Krishna Balothia (supra) may need to be revisited in view of judgments of this Court, particularly
Maneka Gandhi (supra), we consider it unnecessary to refer the
matter to the larger Bench as the judgment can be clarified in the light of law
laid down by this Court. Exclusion of anticipatory bail has been justified only
to protect victims of perpetrators of crime. It cannot be read as being
applicable to those who are falsely implicated for extraneous reasons and have not
committed the offence on prima
facie independent scrutiny. Access to justice being a fundamental right, grain has to be separated
from the chaff, by an independent mechanism. Liberty of one citizen cannot be
placed at the whim of another. Law has to protect the innocent and punish the
guilty. Thus considered, exclusion has to be applied to genuine cases and not
to false ones. This will help in achieving the object of the law.
52. If the provisions of the Act are compared as against certain other
enactments where similar restrictions are put on consideration of matter for
grant of anticipatory bail or grant of regular bail, an interesting situation
emerges. Section 17(4) of the Terrorist and Disruptive Activities (Prevention)
Act, 1985 (“TADA” for short - since repealed) stated “…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 punishable under the
provisions of this Act…”. Section 17(5) of the TADA Act put further restriction
on a person accused of an offence punishable under the TADA Act being released
on regular bail and one of the conditions was: Where the Public Prosecutor
opposes the application for grant of bail, the court had to be satisfied that
there were reasonable grounds for believing that the accused was not guilty of
such offence and that he was not likely to commit any such offence while on
bail. The provisions of the Unlawful Activities (Prevention) Act, 1967 (for short
“the UAPA Act”), namely under Section 43D(4) and 43D(5) are similar to the
aforesaid Sections 17(4) and 17(5) of the TADA Act. Similarly the provisions of
Maharashtra Control of Organised Crime Act, 1999 (for short “MCOC Act”),
namely, Sections 21(3) and 21(4) are also identical in terms. Thus the impact
of release of a person accused of having committed the concerned offences under
these special enactments was dealt with by the Legislature not only at the
stage of consideration of the matter for anticipatory bail but even after the
arrest at the stage of grant of regular bail as well. The provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act)
are, however, distinct in that the restriction under Section 37 is at a stage
where the matter is considered for grant of regular bail. No such restriction
is thought of and put in place at the stage of consideration of matter for
grant of anticipatory bail. On the other hand, the provisions of the Act are
diametrically opposite and the restriction in Section 18 is only at the stage
of consideration of matter for anticipatory bail and no such restriction is
available while the matter is to be considered for grant of regular bail.
Theoretically it is possible to say that an application under Section 438 of
the Code may be rejected by the Court because of express restrictions in
Section 18 of the Act but the very same court can grant bail under the
provisions of Section 437 of the Code, immediately after the arrest. There
seems to be no logical rationale behind this situation of putting a fetter on grant
of anticipatory bail whereas there is no such prohibition in any way for grant
of regular bail. It is, therefore, all the more necessary and important that
the express exclusion under Section 18 of the Act is limited to genuine cases
and inapplicable where no prima facie case is made out.
53. We have no quarrel with the proposition laid down in the said judgment
that persons committing offences under the Atrocities Act ought not to be
granted anticipatory bail in the same manner in which the anticipatory bail is
granted in other cases punishable with similar sentence. Still, the question
remains whether in cases where there is no prima facie case
under the Act, bar under Section 18 operates can be considered. We are unable
to read the said judgment as laying down that exclusion is applicable to such
situations. If a person is able to show that, prima facie, he has not committed
any atrocity against a member of SC and ST and that the allegation was mala fide and prima
facie false and that prima facie no
case was made out, we do not see any justification for applying Section 18 in
such cases. Consideration in the mind of this Court in Balothia (supra) is that the perpetrators of atrocities should
not be granted anticipatory bail so that they may not terrorise the victims.
Consistent with this view, it can certainly be said that innocent persons
against whom there was no prima
facie case or patently false case
cannot be subjected to the same treatment as the persons who are prima facie
perpetrators of the crime.
54. In view of decisions in Vilas Pandurang Pawar (supra) and Shakuntla
Devi (supra), learned
ASG has rightly stated that there is no absolute bar to grant anticipatory bail
if no prima facie case is made out inspite of validity of Section 18 of the Atrocities
Act being upheld.
55. In Hema Mishra versus State of U.P., (2014) 4 SCC 453 – paras 21, 34 to 36 it has
been expressly laid down that inspite of the statutory bar against grant of
anticipatory bail, a Constitutional Court is not debarred from exercising its
jurisdiction to grant relief. This Court considered the issue of anticipatory
bail where such provision does not apply. Reference was made to the view in Lal Kamlendra Pratap Singh
versus State of Uttar Pradesh and Ors., (2009) 4 SCC 437 to the effect
that interim bail can be granted even in such cases without accused being actually
arrested. Reference was also made to Kartar Singh versus State of Punjab, (1994) 3 SCC 569 – para 368 (17) to the effect that jurisdiction under Article 226 is not barred
even in such cases.
56. It is well settled that a statute is to be read in the context
of the background and its object. Instead of literal interpretation, the court
may, in the present context, prefer purposive interpretation to achieve the
object of law. Doctrine of proportionality is well known for advancing the
object of Articles 14 and 21. A procedural penal provision affecting liberty of
citizen must be read consistent with the concept of
fairness and reasonableness.
57. A Constitution Bench of this Court in Kedar Nath versus State of
Bihar, AIR 1962 SC 955 : 1962 Supp (2) SCR 769 observed:
“26. It is also well settled that in interpreting an enactment
the Court should have regard not merely to the literal meaning of the words
used, but also take into consideration the antecedent history of the
legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal
Immunity Company Limited v. State of Bihar[1955 2 SCR 603] and (2) R.M.D.
Chamarbaugwala v. Union of India[1957 SCR 930]. Viewed in that light, we have
no hesitation in so construing the provisions of the sections impugned in these
cases as to limit their application to acts involving intention or tendency to
create disorder, or disturbance of law and order, or incitement to violence.
27. We may also consider the legal position, as it should
emerge, assuming that the main Section 124-A is capable of being construed in
the literal sense in which the Judicial Committee of the Privy Council has
construed it in the cases referred to above. On that assumption, is it not open to this Court to construe the
section in such a way as to avoid the alleged unconstitutionality by limiting
the application of the section in the way in which the Federal Court intended
to apply it? In our opinion, there are decisions of this Court which amply
justify our taking that view of the legal position. This Court, in the case of
R.M.D. Chamarbaugwalla v. Union of India has examined in detail the
several decisions of this Court, as also of the courts in America and
Australia. After examining those decisions, this Court came to the conclusion
that if the impugned provisions of a law come within the constitutional powers of
the legislature by adopting one view of the words of the impugned section or Act, the Court will take that
view of the matter and limit its application accordingly, in preference to the
view which would make it unconstitutional on another view of the interpretation
of the words in question. In that case, the Court had to choose between a
definition of the expression “Prize Competitions” as limited to those
competitions which were of a gambling character and those which were not. The Court
chose the former interpretation which made the rest of the provisions of the
Act, Prize Competitions Act (42 of 1955), with particular reference to Sections
4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held
that the penalty attached only to those competitions which involved the element
of gambling and those competitions in which success depended to a substantial
degree on skill were held to be out of the purview of the Act. The ratio decidendi in that
case, in our opinion, applied to the case in hand insofar as we propose to
limit its operation only to such activities as come within the ambit of the observations
of the Federal Court, that is to say, activities involving incitement to
violence or intention or tendency to create public disorder or cause
disturbance of public peace.”
58. In the present context, wisdom of legislature in creating an
offence cannot be questioned but individual justice is a judicial function
depending on facts. As a policy, anticipatory bail may be excluded but
exclusion cannot be intended to apply where a patently malafide version is put
forward. Courts have inherent jurisdiction to do justice and this jurisdiction
cannot be intended to be excluded. Thus, exclusion of Court’s jurisdiction is
not to be read as absolute.
59. There can be no dispute with the proposition
that mere unilateral allegation by any individual belonging to any caste, when
such allegation is clearly motivated and false, cannot be treated as enough to
deprive a person of his liberty without an independent scrutiny. Thus,
exclusion of provision for anticipatory bail cannot possibly, by any reasonable
interpretation, be treated as applicable when no case is made out or
allegations are patently false or motivated. If this interpretation is not
taken, it may be difficult for public servants to discharge their bona fide functions
and, in given cases, they can be black mailed with the threat of a false case
being registered under the Atrocities Act, without any protection of law. This
cannot be the scenario in a civilized society. Similarly, even a non public
servant can be black mailed to surrender his civil rights. This is not the
intention of law. Such law cannot stand judicial scrutiny. It will fall foul of
guaranteed fundamental rights of fair and reasonable procedure being followed
if a person is deprived of life and liberty. Thus, literal interpretation
cannot be preferred in the present situation.
60. Applying the above well known
principle, we hold that the exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the Atrocities Act is made.
On the other hand, if it can be shown that the allegations are prima facie motivated and false, such exclusion will not apply.
61. The Gujarat High Court in Pankaj D Suthar (supra) considered the question whether Section 18 of the
Atrocities Act excludes grant of anticipatory bail when on prima facie judicial scrutiny, allegations are found to be not free from
doubt. The said question was answered as follows:
“4. Now undoubtedly it is true that the alleged offence under the
Atrocities Act is a very serious offence and if indeed the complaint is
ultimately found to be truthful and genuine one, there cannot be any two views
about the strictest possible view taken in such matter. Not only that but if the complaint is also found to be
prima facie dependable one that is to say, free from doubt, then as a warranted
under Section 18 of the Atrocities Act, even the anticipatory bail to such accused
has got to be refused. In fact, the Parliament in its utmost wisdom has rightly evidenced
great concern and anxiety over the atrocities which are going on unabatedly on
S.Cs. & S.Ts. by inserting the provisions under Section 18 of the
Atrocities Act disabling the accused from obtaining the anticipatory bail under
Section 438 of the Code. This indeed is a welcome step and in accordance with
the axiomatic truth, viz., 'the disease grown desperately must be treated
desperately else not'. The
disease of commission of offences by way of atrocities against the members of
S.Cs. and S.Ts. are unabatedly going on since last hundreds of years and in the
recent past have become alarmingly increasing and has become so rampant, breath
taking and has reached such a desperate pass that it indeed needed a very
stringent and desperate legislation which could help save the situation by
effectively providing the legal protection to such cursed, crushed and downtrodden
members of S.Cs. & S.Ts. communities. Under such circumstances, it is equally
the paramount duty of every Court to see that it responds to legislative
concern and call and ensure effective implementation of the Atrocities Act, by
seeing that the provisions enshrined in the said Act are duly complied with. But then, what according to
this Court is the most welcome step by way of collective wisdom of the
Parliament in ushering social beneficial legislation cannot be permitted to be
abused and converted into an instrument to blackmail to wreak some personal vengeance
for settling and scoring personal vendetta or by way of some counter-blasts
against opponents some public servants, as prima facie appears to have been
done in the present case. The basic questions in such circumstances therefore
are- Whether a torch which is lighted to dispel the darkness can it be
permitted to set on fire the innocent surroundings? Whether a knife an instrument
which is meant for saving human life by using the same in the course of
operation by a surgeon, can it be permitted to be used in taking the life of
some innocent? The very
same fundamental question arises in the facts and circumstances of this case also,
viz., 'whether any statute like the present Atrocities Act, especially enacted
for the purposes of protecting weaker sections of the society hailing from S.C.
& S.T. communities can be permitted to be abused by conveniently
converting the same into a weapon of wrecking personal vengeance on the
opponents?' The
answer to this question is undoubtedly and obviously 'No'. Under such
circumstances, if the Courts are to apply such provision of Section 18 of the
Atrocities Act quite mechanically and blindly merely guided by some general and
popular prejudices based on some words and tricky accusations in the complaint
on mere assumptions without intelligently scrutinising and testing the probabilities,
truthfulness, genuineness and otherwise dependability of the accusations in the
complaint etc., then it would be simply unwittingly and credulously playing in
the hands of some scheming unscrupulous complainant in denying the justice. Virtually, it would be tentamount to abdicating and
relegating its judicial duty, fanction of doing justice in such matters in
favour and hands of such unscrupulous complainant by making him a Judge in his
own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose
the rules made thereunder are applicable to the facts of a particular case or
not, is always and unquestionably a matter which lies strictly and exclusively
within the domain of 'judicial consideration-discretion' and therefore neither
mere allegations made in the complainant by themselves nor bare denials by the
accused can either automatically vest or divest the Court from discharging its
ultimate judicial function-duty to closely scrutinise and test the prima facie dependability
of the allegations made in the complaint and reach its own decision.
5. Now
reverting to the contents of the complaint and attending circumstances high
lighted by Mr. Pardiwala, the learned Advocate for the petitioner-accused, the
same prima facie clearly demonstrates that at this stage the story revealed by
the complainant docs not appear to be free from doubt. If that is so, very
applicability of the Atrocities Act is rendered doubtful. If that is the
situation, then to refuse the anticipatory bail on mere accusations and
assumptions that the petitioner-accused has committed an offence under the
Atrocities Act would be absolutely illegal, unjudicious, unjust and ultimately
a travesty of justice. No Court can ever embark upon such hazards of refusing
anticipatory bail on mere doubtful accusations and assumptions that Atrocities
Act is applicable. No Court could and should be permitted to bo 'spoon-fed' by
the complainant whatever he wants to feed and swallow whatever he wants the
Court to gulp down to attain and secure his unjust mala fide motivated ends. Section 18 of the Atrocities Act gives a vision, direction and
mandate to the Court as to the cases where the anticipatory bail must be
refused, but it does not and it certainly cannot whisk away the right of any
Court to have a prima facie judicial scrutiny of the allegations made in the
complaint. Nor can it under its hunch permit provisions of law being abused
to suit the mala fide motivated ends of some unscrupulous complainant. In this
case also if indeed this Court been satisfied with the story revealed by the
complainant as truthful and genuine, then anticipatory bail would have been surely
rejected right forth as a matter of course, but since the submissions of Mr.
Pardiwala have considerable force, this Court has no alternative but to accept
the same in the larger interests of justice to see that merely on the count of
the firsthand prejudice attempted to be caused by allegations in the complaint,
the petitioner-accused is not denied his precious right of the anticipatory
bail.
6. In view of the aforesaid discussion, though in a way the learned
A.P.P. is absolutely right when he submitted that no anticipatory bail can be
granted to the petitioner-accused because of Section 18 of the Atrocities Act,
in the opinion of this Court, his submission fails because at this stage it is
too difficult to rule out the probability of the accusations levelled by the
complainant against the petitioner-accused having committed an offence under
the Atrocities Act being false, vexatious and by way of counterblast as
stemming from the ulterior motive to humiliate, disgrace and demoralise the
petitioner-accused who is a public servant. When that is the result and
position, there is no question of bypassing of Section 18 of the Atrocities Act
arises as apprehended by the learned A.P.P. Taking into consideration the facts
and circumstances of this particular case, and in view of the aforesaid
discussion, this Misc. Criminal Application for anticipatory bail deserves to
be allowed and is allowed accordingly”
62. The above view was reiterated in Dr. N.T. Desai (supra), after considering the judgment of this Court
in Balothia (supra). It was observed that even taking Section 18 of the Atrocities Act to
be valid, if the Court, prima-facie,
found the story of complainant to
be doubtful, the accused could not be allowed to be arrested. Doing so would be
unjudicial. It was observed;-
“8. To deal first with the
preliminary objection raised by the learned A.P.P. Mr. Desai, it may be stated
that the Supreme Court’s decision rendered in the case of State of M.P. &
Anr. v. Ramkishan Balothia (supra) stands on altogether quite different footing
where the vires of Section 18 of the Act came to be decided. The Apex Court has
ultimately held that Section 18 of the Act was not ultra vires. This Court is
indeed in respectful agreement with the aforesaid decision of the Supreme
Court….. ….. ….
… …. … … …
But then having closely examined the complaint more
particularly in the context and light of the backdrop of the peculiar facts
situation highlighted by the petitioner leading ultimately to filing of the complaint,
this Court prime facie at the very outset is at some doubt about the
complainant's story and yet if it readily, mechanically like a gullible child accepts
the allegations made in the complaint at its face value, it would be surely
blundering and wandering away from the path of bail-justice, making itself
readily available in the hands of the scheming complainant who on mere asking
will get arrested accused on some false allegations of having committed
non-bailable offence, under the Atrocity Act, meaning thereby the Court
rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary
prudence with no perception for justice, denying the rightful protection to the
accused becoming ready pawn pliable in the hands of sometime scheming,
unscrupulous complainants !!! This sort of a surrender to prima facie doubtful allegation
in the complaint is not at all a judicial approach, if not unjudicial !!...”
63. The above judgments correctly lays down the scope
of exclusion as well as permissibility of anticipatory bail in cases under the
Atrocities Act and are consistent with the view we take. Section 18 of the Atrocities Act has, thus, to be read and interpreted
in this manner. At this stage, we may note that we have seen a contra view of
the Division Bench of the said High Court in Pravinchandra N Solanki and Ors. versus State of Gujarat, (2012)1 GLR 499. We are
unable to accept the said view for the reasons already given and overrule the
same.
64. Concept of “Due process” and principles of 8th Amendment
of the U.S. Constitution have been read by this Court as part of guarantee
under Article 21 of the Constitution. In State of Punjab versus Dalbir Singh, (2012) 3 SCC 346 it was observed :
“80. It has
already been noted hereinabove that in our Constitution the concept of “due
process” was incorporated in view of the judgment of this Court in Maneka
Gandhi[(1978) 1 SCC 248] The principles of the Eighth Amendment have also been
incorporated in our laws. This has been acknowledged by the Constitution Bench
of this Court in Sunil Batra [(1978) 4 SCC 494] In Sunil Batra case, SCC para
52 at p. 518 of the Report, Krishna Iyer, J. speaking for the Bench held as
follows:
“52.
True, our Constitution has no ‘due process’ clause or the Eighth Amendment;
but, in this branch of law, after Cooper [Rustom Cavasjee Cooper vs. UOI (1970)
1 SCC 248] and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalisingly unusual or
cruel and rehabilitatively counterproductive, is unarguably unreasonable and
arbitrary and is shot down by Articles 14 and 19 and if inflicted with
procedural unfairness, falls foul of Article 21.”
xxx xxxx xxxx
84. The principle of “due process” is an emanation from the
Magna Carta doctrine. This was accepted in American jurisprudence (see Munn v.
Illinois [24 L Ed77], L Ed p. 90 : US p. 142). Again this was acknowledged in Planned Parenthood
of Southeastern Pennsylvania v. Casey [120 L Ed 2d 674] wherein the American
Supreme Court observed as follows: “The guarantees of due process, though having
their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards
‘against executive usurpation and tyranny’, have in this country ‘become bulwarks
also against arbitrary legislation’.”
85. All these
concepts of “due process” and the concept of a just, fair and reasonable law
have been read by this Court into the guarantee under Articles 14 and 21 of the
Constitution….”
65.
Presumption of innocence is a human right. No doubt, placing of burden of proof
on accused in certain circumstances may be permissible but there cannot be
presumption of guilt so as to deprive a person of his liberty without an
opportunity before an independent forum or Court. In Noor Aga versus State of Punjab, (2008) 16 SCC 417 it was
observed:
“33. Presumption of innocence is a human right as envisaged
under Article 14(2) of the International Covenant on Civil and Political
Rights. It, however, cannot per se be equated with the fundamental right and
liberty adumbrated in Article 21 of the Constitution of India. It, having
regard to the extent thereof, would not militate against other statutory
provisions (which, of course, must be read in the light of the constitutional
guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
xxxx xxxx xxxx
35. A right
to be presumed innocent, subject to the establishment of certain foundational
facts and burden of proof, to a certain extent, can be placed on an accused. It
must be construed having regard to the other international conventions and
having regard to the fact that it has been held to be constitutional. Thus, a
statute may be constitutional but a prosecution thereunder may not be held to
be one. Indisputably, civil liberties and rights of citizens must be upheld.
xxxx xxxx xxxx
43. The issue
of reverse burden vis-Ã -vis the human rights regime must also be noticed. The
approach of the common law is that it is the duty of the prosecution to prove a
person guilty. Indisputably, this common law principle was subject to
parliamentary legislation to the contrary. The concern now shown worldwide is
that Parliaments had frequently been making inroads on the basic presumption of
innocence. Unfortunately, unlike other countries no systematic study has been
made in India as to how many offences are triable in the court where the legal
burden is on the accused. In the United Kingdom it is stated that about 40% of
the offences triable in the Crown Court appear to violate the presumption. (See
“The Presumption of Innocence in English Criminal Law”, 1996, CRIM. L. REV.
306, at p. 309.)
44.
In Article 11(1) of the
Universal Declaration of Human Rights (1948) it is stated:
“Everyone charged
with a penal offence has the right to be presumed innocent until proved guilty
according to law….”
Similar provisions have been made in Article 6.2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
and Article 14.2 of the International Covenant on Civil and Political Rights (1966).
xxx xxxx xxx xxx
47. We may
notice that Sachs, J. in State v. Coetzee [1997(2) LRC 593] explained the
significance of the presumption of innocence in the following terms:
“There is
a paradox at the heart of all criminal procedure in that the more serious the
crime and the greater the public interest in securing convictions of the
guilty, the more important do constitutional protections of the accused become.
The starting point of any balancing enquiry where constitutional rights are
concerned must be that the public interest in ensuring that innocent people are
not convicted and subjected to ignominy and heavy sentences massively outweighs
the public interest in ensuring that a particular criminal is brought to book.… Hence the presumption of innocence, which serves not only to
protect a particular individual on trial, but to maintain public confidence in
the enduring integrity and security of the legal system. Reference to the
prevalence and severity of a certain crime therefore does not add anything new
or special to the balancing exercise. The perniciousness of the offence is one
of the givens, against which the presumption of innocence is pitted from the
beginning, not a new element to be put into the scales as part of a
justificatory balancing exercise. If this were not so, the ubiquity and
ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking,
drug-smuggling, corruption … the list is unfortunately almost endless, and
nothing would be left of the presumption of innocence, save, perhaps, for its relic
status as a doughty defender of rights in the most trivial of cases.”
In view of the above, an accused is certainly entitled
to show to the Court, if he apprehends arrest, that case of the complainant was
motivated. If it can be so shown there is no reason that the Court is not able
to protect liberty of such a person. There cannot be any mandate under the law
for arrest of an innocent. The law has to be interpreted accordingly.
66. We have already noted the working of the Act in the last three
decades. It has been judicially acknowledged that there are instances of abuse
of the Act by vested interests against political opponents in Panchayat,
Municipal or other elections, to settle private civil disputes arising out of
property, monetary disputes, employment disputes and seniority disputes60. It
may be noticed that by way of rampant misuse complaints are ‘largely being filed particularly against Public Servants/quasi
judicial/judicial officers with oblique motive for satisfaction of vested
interests’61.
67. Innocent citizens are termed as accused, which is not intended
by the legislature. The legislature never intended to use the Atrocities Act as
an instrument to blackmail or to wreak 60 Dhiren Praful bhai (supra) 61 Sharad (supra) personal vengeance. The Act is also not intended to
deter public servants from performing their bona fide duties.
Thus, unless exclusion of anticipatory bail is limited to genuine cases and inapplicable
to cases where there is no prima
facie case was made out, there will be
no protection available to innocent citizens. Thus, limiting the exclusion of
anticipatory bail in such cases is essential for protection of fundamental
right of life and liberty under Article 21 of the Constitution.
68. Accordingly, we have no hesitation in holding that exclusion of
provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and
circumstances of each case in exercise of its judicial discretion. In doing so,
we are reiterating a well established principle of law that protection of innocent
against abuse of law is part of inherent jurisdiction of the Court being part
of access to justice and protection of liberty against any oppressive action such
as mala fide arrest. In doing so, we are not diluting the efficacy
of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest
and detention.
69. In Lal
Kamlendra Pratap(supra), this Court held that even if there is no provision for
anticipatory bail, the Court can grant interim bail in suitable cases. It was
observed :
“6. Learned counsel for the appellant apprehends that the
appellant will be arrested as there is no provision for anticipatory bail in
the State of U.P. He placed reliance on a decision of the Allahabad High Court
in Amarawati v. State of U.P. [2005 Crl LJ 755 (All)] in which a seven-Judge
Full Bench of the Allahabad High Court held that the court, if it deems fit in
the facts and circumstances of the case, may grant interim bail pending final
disposal of the bail application. The Full Bench also observed that arrest is
not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in
Joginder Kumar v. State of U.P.[(1992) 4 SCC 260]
7. We fully agree with the view of the High Court in Amarawati
case and we direct that the said decision be followed by all courts in U.P. in
letter and spirit, particularly since the provision for anticipatory bail does
not exist in U.P.
8. In
appropriate cases interim bail should be granted pending disposal of the final
bail application, since arrest and detention of a person can cause irreparable
loss to a person’s reputation, as held by this Court in Joginder Kumar case.
Also, arrest is not a must in all cases of cognizable offences, and in deciding
whether to arrest or not the police officer must be guided and act according to
the principles laid down in Joginder Kumar case.”
70. In Vikas Pandurang case (supra), it was observed :
“10. …..When an offence is registered against a person under the
provisions of the SC/ST Act, no court shall entertain an application for
anticipatory bail,
unless it prima facie finds that such an offence is not made out.”
71. Law laid down by this Court in Joginder Kumar (supra), Arnesh Kumar (supra), Rini Johar (supra),
Siddharam Satlingappa (supra) to check uncalled for arrest cannot be ignored
and clearly applies to arrests under the Atrocities Act. Protection of innocent is as important as punishing the guilty.
72. In Dadu
alias Tulsidas versus State of Maharashtra, (2000)8SCC 437 while
considering the validity of exclusion of bail by an appellate court in NDPS
cases, this Court noted the submission that the legislature could not take away
judicial powers by statutory prohibition against suspending the sentence during
the pendency of the appeal. This is an essential judicial function. The
relevant observations are:
“16. Learned counsel appearing for the parties were
more concerned with the adverse effect of the section on the powers of the
judiciary. Impliedly conceding that the section was valid so far as it
pertained to the appropriate Government, it was argued that the legislature is
not competent to take away the judicial powers of the court by statutory
prohibition as is shown to have been done vide the impugned section. Awarding
sentence, upon conviction,
is concededly a judicial function to be discharged by the courts of law
established in the country. It is always a matter of judicial discretion, however, subject to
any mandatory minimum sentence prescribed by the law. The award of sentence by
a criminal court wherever made subject to the right of appeal cannot be interfered
or intermeddled with in a way which amounts to not only interference but
actually taking away the power of judicial review. Awarding the sentence and
consideration of its legality or adequacy in appeal is essentially a judicial function
embracing within its ambit the power to suspend the sentence under the peculiar
circumstances of each case, pending the disposal of the appeal.”
73. On the above reasoning, it is difficult to hold
that the legislature wanted exclusion of judicial function of going into correctness
or otherwise of the allegation in a criminal case before liberty of a person is
taken away. The legislature could not have intended that any unilateral version
should be treated as conclusive and the person making such allegation should be
the sole judge of its correctness to the exclusion of judicial function of courts
of assessing the truth or otherwise of the rival contentions before personal
liberty of a person is adversely affected.
74. It is thus patent that in cases under the Atrocities Act, exclusion
of right of anticipatory bail is applicable only if the case is shown to bona fide and that prima
facie it falls under the Atrocities
Act and not otherwise. Section 18 does not apply where there is no prima facie case or to cases of patent false implication or when the
allegation is motivated for extraneous reasons. We approve the view of the
Gujarat High Court in Pankaj
D Suthar (supra) and Dr. N.T. Desai (supra). We clarify the Judgments in Balothia (supra) and Manju Devi (supra)
to this effect.
Issue of safeguards against arrest and false implications
75. We may now deal with the issue as to what
directions, if any, are necessary, apart from clarifying the legal position
with regard to anticipatory bail. The under privileged need to be protected against
any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same
time, the said Act cannot be converted into a charter for exploitation or
oppression by any unscrupulous person or by police for extraneous reasons
against other citizens as has been found on several occasions in decisions
referred to above. Any harassment of an innocent citizen, irrespective of caste
or religion, is against the guarantee of the Constitution. This Court must
enforce such a guarantee. Law should not result in caste hatred. The preamble
to the Constitution, which is the guiding star for interpretation, incorporates
the values of liberty, equality and fraternity.
76. We are satisfied, in the light of statistics already referred as
well as cited decisions and observations of the Standing Committee of Parliament
that there is need to safeguard innocent citizens against false implication and
unnecessary arrest for which there is no sanction under the law which is
against the constitutional guarantee and law of arrest laid down by this Court.
77. We are conscious that normal rule is to register FIR if any information
discloses commission of a cognizable offence. There are however, exceptions to
this rule. In Lalita
Kumari versus State of U.P., (2014) 2 SCC 1 it was observed :
“115. Although, we, in unequivocal terms, hold that Section
154 of the Code postulates the mandatory registration of FIRs on receipt of all
cognizable offences, yet, there may be instances where preliminary inquiry may be
required owing to the change in genesis and novelty of crimes with the passage
of time. One such instance is in the case of allegations relating to medical
negligence on the part of doctors. It will be unfair and inequitable to prosecute
a medical professional only on the basis of the allegations in the complaint.
xxxx xxxx xxxx
117. In the context of offences relating to corruption, this Court in
P. Sirajuddin [(1970) 1 SCC 595] expressed the need for a preliminary inquiry
before proceeding against public servants.
xxxx xxxx xxxx
120.6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The category
of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial
disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d)
Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months’ delay in reporting the matter
without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7. While
ensuring and protecting the rights of the accused and the complainant, a
preliminary inquiry should be made time-bound and in any case it should not
exceed 7 days. The fact of such delay and the causes of it must be reflected in
the General Diary entry.”
78.
The above view is consistent with earlier judgments in State of U.P. versus
Bhagwant Kishore Joshi, AIR 1964 SC 221 = 1964(3) SCR 221 and P. Sirajuddin versus State of Madras, (1970) 1 SCC 595. In Bhagwant Kishore it was observed:
“… … …In the absence of any prohibition in the Code,
express or implied, I am of opinion that it is open to a Police Officer to make
preliminary enquiries before registering an offence and making a full scale
investigation into it. No doubt, Section 5A of the Prevention of Corruption Act
was enacted for preventing harassment to a Government servant and with this
object in view investigation, except with the previous permission of a
Magistrate, is not permitted to be made by an officer below the rank of a Deputy
Superintendent of Police. Where however, a Police Officer makes some preliminary
enquiries, does not arrest or even question an accused or question any
witnesses but merely makes a few discreet enquiries or looks at some documents
without making any notes, it is difficult to visualize how any possible harassment
or even embarrassment would result therefrom to the suspect or the accused
person.… …”
In Sirajuddin (supra) it was observed:
“17. … …Before a public servant, whatever be his status,
is publicly charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of the type alleged in this case and a first
information is lodged against him, there must be some suitable preliminary
enquiry into the allegations by a responsible officer. The lodging of such a
report against a person, specially one who like the appellant occupied the top
position in a department, even if baseless, would do incalculable harm not only
to the officer in particular but to the department he belonged to, in general.
If the Government had set up a Vigilance and Anti- Corruption Department as was
done in the State of Madras and the said department was entrusted with enquiries
of this kind, no exception can of taken to an enquiry by officers of this
department but any such enquiry must proceed in a fair and reasonable manner. …
…”
79. We are of the view that
cases under the Atrocities Act also fall in exceptional category where
preliminary inquiry must be held. Such inquiry must be time-bound and should
not exceed seven days in view of directions in Lalita Kumari (supra).
80. Even if preliminary inquiry is held and case is registered, arrest
is not a must as we have already noted. In Lalita Kumari (supra) it was observed :
“107. While
registration of FIR is mandatory, arrest of the accused immediately on
registration of FIR is not at all mandatory. In fact, registration of FIR and
arrest of an accused person are two entirely different concepts under the law,
and there are several safeguards available against arrest. Moreover, it is also
pertinent to mention that an accused person also has a right to apply for
“anticipatory bail” under the provisions of Section 438 of the Code if the conditions
mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the
arrest under that provision by obtaining an order from the court.”
81. Accordingly, we direct that in absence of any
other independent offence calling for arrest, in respect of offences under the
Atrocities Act, no arrest may be effected, if an accused person is a public
servant, without written permission of the appointing authority and if such a
person is not a public servant, without written permission of the Senior
Superintendent of Police of the District. Such permissions must be granted for
recorded reasons which must be served on the person to be arrested and to the
concerned court. As and when a person arrested is produced before the
Magistrate, the Magistrate must apply his mind to the reasons recorded and
further detention should be allowed only if the reasons recorded are found to
be valid. To avoid false implication, before FIR is registered, preliminary
enquiry may be made whether the case falls in the parameters of the Atrocities Act
and is not frivolous or motivated.
Consideration of present case
82. As far as the present case is concerned, we find merit in
the submissions of learned amicus that the proceedings against the appellant
are liable to be quashed.
Conclusions
83.
Our conclusions are as follows:
i) Proceedings in the present case are clear
abuse of process of court and are quashed.
ii) There is no absolute bar against
grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is
found to be prima facie mala
fide. We approve the view taken and approach
of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify
the judgments of this Court in Balothia (supra)
and Manju Devi (supra);
iii) In view of acknowledged abuse of law of
arrest in cases under the Atrocities Act, arrest of a public servant can only
be after approval of the appointing authority and of a non-public servant after
approval by the S.S.P. which may be granted in appropriate cases if considered
necessary for reasons recorded. Such reasons must be scrutinized by the
Magistrate for permitting further detention.
iv) To avoid false implication of
an innocent, a preliminary enquiry may be conducted by the DSP concerned to
find out whether the allegations make out a case under the Atrocities Act and
that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable
by way of disciplinary action as well as contempt.
The above directions are prospective.
84. Before parting with the judgment, we place on record our sincere
appreciation for the invaluable assistance rendered by learned Amicus and also
assistance rendered by learned counsel who have appeared in this case.
The appeal is accordingly allowed in the above terms.
Note: Highlighting in quotations is by us
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