DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA
DR. SUBHASH KASHINATH MAHAJAN
THE STATE OF MAHARASHTRA
(Supreme Court Of India)
Criminal Appeal No. 000416-000416 / 2018 | 20-03-2018
1. This appeal has been preferred against the order dated 5thMay, 2017 of the High Court of Judicature at Bombay in CriminalApplication No.1015 of 2016.
2. On 20thNovember, 2017 the following order was passed bythis Court:-
“Heard learned counsel for the parties.3. Though certain facts are stated while framing the questionalready noted, some more facts may be noted. The appellantherein is the original accused in the case registered at City PoliceStation, Karad for the offences punishable under Sections 3(1)(ix),3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) asalso Sections 182, 192, 193, 203 and 219 read with 34 of theIndian Penal Code, 1860 (IPC). He was serving as Director ofT echnical Education in the State of Maharashtra at the relevanttime.
Certain adverse remarks were recorded against respondentno. 2-Bhaskar Karbhari Gaidwad by the Principal and Headof the Department of the College of Pharmacy whererespondent no. 2 was employed. Respondent No. 2 soughtsanction for his prosecution under the provisions of theScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 and for certain other connectedoffences. The said matter was dealt with by the petitionerand sanction was declined. This led to another complaintby the respondent no. 2 against the petitioner under thesaid provisions. The quashing of the said complaint hasbeen declined by the High Court.
The question which has arisen in the course ofconsideration of this matter is whether any unilateralallegation of mala fide can be ground to prosecute officerswho dealt with the matter in official capacity and if suchallegation is falsely made what is protection availableagainst such abuse.
Needless to say that if the allegation is to be acted upon,the proceedings can result in arrest or prosecution of theperson and have serious consequences on his right toliberty even on a false complaint which may not beintended by law meant for protection of a bona fide victim.
The question is whether this will be just and fair procedureunder Article 21 of the Constitution of India or there can beprocedural safeguards so that provisions of ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 are not abused for extraneous considerations.Issue notice returnable on 10thJanuary, 2018.
In the meanwhile, there shall be stay of furtherproceedings.
Issue notice to Attorney General of India also as the issueinvolves interpretation of a central statute.
Mr. Amrendra Sharan, learned senior counsel is requestedto assist the Court as amicus. Mr. Sharan will be at libertyto have assistance of Mr. Amit Anand Tiwari, Advocate. ……”
4. The second respondent - the complainant is an employee ofthe department. He was earlier employed as a Store Keeper inthe Government College of Pharmacy, Karad. He was later postedat Government Distance Education Institute, Pune. Dr. SatishBhise and Dr. Kishor Burade, who were his seniors but non-scheduled caste, made adverse entry in his annual confidentialreport to the effect that his integrity and character was not good.He lodged FIR with Karad Police Station against the said twoofficers under the Atrocities Act on 4thJanuary, 2006 on thatground. The concerned Investigating Officer applied for sanctionunder Section 197 Cr.P .C. against them to the Director of T echnicalEducation on 21stDecember, 2010. The sanction was refused bythe appellant on 20thJanuary, 2011. Because of this, ‘C’ SummaryReport was filed against Bhise and Burade which was notaccepted by the court. He then lodged the present FIR againstthe appellant. According to the complainant, the Director ofT echnical Education was not competent to grant/refuse sanctionas the above two persons are Class-I officers and only the StateGovernment could grant sanction. Thus, according to him, theappellant committed the offences alleged in the FIR dated 28thMarch, 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 theGovt. Pharmacy College Karad, at that time I haveregistered 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 wasdone by Shri Bharat T angade, then D.Y .S.P. Karaddivision Karad in the investigation 1) SatishBalkrushna Bhise, then Principal Pharmacy CollegeKarad, 2) Kishor Balkrishna Burade, then Professor,Pharmacy College Karad has been realized asaccused in the present crime. Investigation officercollect sufficient evidence against both the accused,but both the accused are from Govt. T echnicalEducation department Class 1 Public Servant, sobefore filing charge sheet against them he wrote theletter to the senior office of the accused u/s 197 ofCr.P .C. to take the permission at that time Mr.Subhash Kashinath Mahajan was working as inchargedirector of the office. T oday also he is working assame post. Mr. Mahajan does not belongs to S.C. &S.T. but he knew that I belongs to S.C. and S.T.6. The appellant, after he was granted anticipatory bail, appliedto the High Court under Section 482 Cr.P .C. for quashing theproceedings on the ground that he had merely passed a bonafideadministrative order in his official capacity. His action in doing socannot amount to an offence, even if the order was erroneous.The High Court rejected the petition.
In fact both the accused involved in crime No.3122/09 are working on class 1 post and to file acharge sheet against them the permission has to betaken according to Cr.P.C. Section 197. This factknown to Shri Mahajan and Mr. Mahajan knew thatthis office did not have such right to give permission.So Mr. Mahajan send letter to Mumbai Office. Infactto give the required permission or to refuse thepermission is not comes under the jurisdiction ofincharge direction, T echnical Education Mumbai. But,Mr. Mahajan misused his powers so that, accusedmay be benefited, he took the decision and refusedthe permission to file the charge sheet against theaccused. So that, investigation officer Shri BharatT angade fails to submit the charge sheet against theboth the accused, but he complain to submit ‘C’summary report.”
7. Dealing with the contention that if such cases are notquashed, recording of genuine adverse remarks against anemployee who is a member of SC/ST or passing a legitimateadministrative order in discharge of official duties will becomedifficult and jeopardise the administration, the High Courtobserved that no public servant or reviewing authority need toapprehend any action by way of false or frivolous prosecution butthe penal provisions of the Atrocities Act could not be faultedmerely because of possibility of abuse. It was observed that inthe facts and circumstances, inherent power to quash could notbe exercised as it may send a wrong signal to the downtroddenand backward sections of the society.
8. We have heard Shri Amrendra Sharan, learned seniorcounsel, appearing as amicus, Shri Maninder Singh, learnedAdditional Solicitor General, appearing for the Union of India, ShriC.U. Singh, learned senior counsel and the other learned counselappearing for the intervenors and learned counsel for the partiesand perused the record.
9. We may refer to the submissions put forward before theCourt: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 219of the Indian Penal Code and, thus, the High Court ought to havequashed the proceedings. He submitted the following table toexplain his point:Provisions of the SC/ST Actinvoked in this caseApplicability of the provisions inthe facts of the case
11. It was submitted by learned amicus that FIR was lodged afterfive years of the order passed by the appellant. The order waspassed on 20thJanuary, 2011 while the FIR was lodged on 28thMarch, 2016 which further strengthened the case for quashing inaddition to the facts and legal contentions noted in the previouspara. Moreover, in absence of any allegation of malafides, even iforder passed by the appellant was erroneous proceedings againsthim are not called for.
3. Punishment for offences atrocities.– 3 [(1) Whoever, not being amember of a Scheduled Caste or aScheduled Tribe, -(ix): gives any false or frivolousinformation to any public servant andthereby causes such public servant touse his lawful power to the injury orannoyance of a member of aScheduled Caste or a ScheduledTribe;The provision mandates a “false andfrivolous information given by thepublic servant” , however in thepresent case, the Petitioner hasdenied sanction for prosecution whichclearly does not amount to false orfrivolous information. Thus, a caseunder Section 3(1)(ix) of the SC/STAct is not made out.3(2)(vi): knowingly or having reasonto believe that an offence has beencommitted under this Chapter,causes any evidence of thecommission of that offence todisappear with the intention ofscreening the offender from legalpunishment, or with that intentiongives any information respecting theoffence which he knows or believes tobe false, shall be punishable with thepunishment provided for that offence;Section 3(2)(vi) requires causing ofdisappearance of evidence with theintention of screening the offenderfrom legal punishment, however, inthe present case, there is noallegation that the petitioner hascaused disappearance of anyevidence. Therefore the ingredientsof Sections 3(2)(vi) is not made out.(vii) being a public servant, commitsany offence under this section, shallbe punishable with imprisonment forSince no offence under section 3 ofthe SCST is made out this sectioncannot be attracted.a term which shall not be less thanone year but which may extend tothe punishment provided for thatoffence.Provisions of IPC alleged Applicability of the provisions inthe facts of instant case
182. False information, withintent to cause public servant touse his lawful power to the injuryof another person. – Whoever givesto any public servant any informationwhich he knows or believes to befalse, intending thereby to cause, orknowing it to be likely that he willthereby cause, such public servant –(a) to do or omit anything which suchpublic servant ought not to do or omitif the true state of facts respectingwhich such information is given wereknown by him, or(b) to use the lawful power of suchpublic servant to the injury orannoyance of any person, shall bepunished with imprisonment of eitherdescription for a term which mayextend to six months, or with finewhich may extend to one thousandrupees, or with both.A false information is an informationwhich has been given deliberatelywith an intention to deceive.However, in this case denial ofsanction for prosecution cannot beconstrued as a false information inany way. It is an order ofadministrative authority. Thereforeno case is made out under Section182 of the code.
192. Fabricating false evidence. –whoever causes any circumstance toexist or *[makes any false entry inany book or record, or electronicrecord or makes any document orelectronic record containing a falsestatement, intending that suchcircumstance, false entry or falsestatement may appear in evidence ina judicial proceeding, or in aproceeding taken by law before apublic servant as such, or before anarbitrator, and that suchcircumstance, false entry or falseThe ingredients of Section 192 IPC isnot made out therefore this sectionwill not apply in the present case. Itwas not a judicial proceeding and thepetitioner has neither fabricated falseevidence nor made any false entry inany book, record or electronic data.Mere exercising of administrativepower cannot be construed asfabricating false evidence.statement, so appearing in evidence,may cause any person who in suchproceeding is to form an opinion uponthe evidence, to entertain anerroneous opinion touching any pointmaterial to the result of suchproceeding, is said “to fabricate falseevidence” .
193. Punishment for falseevidence. – Whoever intentionallygives false evidence in any stage of ajudicial proceeding, or fabricates falseevidence for the purpose of beingused in any stage of a judicialproceeding, shall be punished withimprisonment of either description fora term which may extend to sevenyears, an shall also be liable to fine,and whoever intentionally gives orfabricates false evidence in any othercase, shall be punished withimprisonment of either description fora term which may extend to threeyears, and shall also be liable.Since there was no ‘false evidence’,therefore the possibility ofpunishment accruing to falseevidence is ruled out.
203. Giving false informationrespecting an offence committed.– Whoever knowing or having reasonto believe that an offence has beencommitted, gives any informationrespecting that offence which heknows or believes to be false, shall bepunished with imprisonment of eitherdescription for a term which mayextend to two years, or with fine, orwith both.For the reasons already statedhereinabove, the present case doesnot meet the ingredients of thissection, therefore is precluded frombeing prosecuted here. A mereopinion of a senior officer in an ACRdoes not amount to giving falseinformation.
219. Public servant in judicialproceeding corruptly makingreport, etc., contrary to law. –Whoever, being a public servant,corruptly or maliciously makes orpronounces in any stage of a judicialproceeding, any report, order verdict,or decision which he knows to becontrary to law, shall be punishedwith imprisonment of eitherdescription for a term which mayThe denial of sanction to prosecutethe two government servants againstwhom the Complainant/ Respondentno. 2 had originally filed an FIRcannot be construed as makingcorrupt report therefore the case ofthe petitioner does not fall within theambit of this provision.extend to seven years, or with fine, orwith both.
12. Learned amicus submitted that under the scheme of theAtrocities Act, several offences may solely depend upon theversion 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. Suchversion 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 thefundamental rights guaranteed under the Constitution. Beforeliberty of a person is taken away, there has to be fair, reasonableand just procedure. Referring to Section 41(1)(b) Cr.P .C. it wassubmitted 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 wasnecessary. Thus, the power of arrest should be exercised onlyafter complying with the safeguards intended under Sections 41and 41A Cr.P .C. It was submitted that the expression ‘reason tobelieve’ in Section 41 Cr.P .C. had to be read in the light of Section26 IPC and judgments interpreting the said expression. The saidexpression was not at par with suspicion. Reference has beenmade in this regard to Joti Prasad versus State of Haryana1,Badan Singh @ Baddo versus State of U.P . & Ors.2, AdriDharan Das versus State of West Bengal3, Tata ChemicalsLtd. versus Commissioner of Customs4and Ganga Saran &Sons Pvt. Ltd. versus Income Tax Officer & Ors.5In thepresent context, to balance the right of liberty of the accusedguaranteed under Article 21, which could be taken away only by just fair and reasonable procedure and to check abuse of powerby police and injustice to a citizen, exercise of right of arrest wasrequired to be suitably regulated by way of guidelines by thisCourt under Article 32 read with Article 141 of the Constitution.Some filters were required to be incorporated to meet themandate of Articles 14 and 21 to strengthen the rule of law.
13. Learned amicus submitted that this Court has generallyacknowledged the misuse of power of arrest and directed thatarrest should not be mechanical. It has been laid down that theexercise of power of arrest requires reasonable belief about aperson’s complicity and also about need to effect arrest. Reliancehas been placed on Joginder Kumar versus State of U.P .6,M.C. Abraham versus State of Maharashtra7, D.Venkatasubramaniam versus M. K. MohanKrishnamachari8, Arnesh Kumar versus State of Bihar9and Rini Johar & Ors. versus State of M.P . & Ors.106
14. It was submitted that in the context of the Atrocities Act, inthe absence of tangible material to support a version, to preventexercise of arbitrary power of arrest, a preliminary enquiry maybe made mandatory. Reasons should be required to be recordedthat information was credible and arrest was necessary. In thecase of public servant, approval of disciplinary authority should beobtained and in other cases approval of Superintendent of Policeshould be necessary. While granting such permission, based on apreliminary enquiry, the authority granting permission should besatisfied about credibility of the information and also about needfor arrest. If an arrest is effected, while granting remand, theMagistrate must pass a speaking order as to correctness orotherwise of the reasons for which arrest is effected. Theserequirements will enforce right of concerned citizens underArticles 14 and 21 without in any manner affecting genuineobjects of the Act.
15. Learned amicus further submitted that Section 18 of theAtrocities Act, which excludes Section 438 Cr.P .C., violatesconstitutional mandate under Articles 14 and 21 and is ultra viresthe Constitution. The said provision was upheld in State of M.P .versus Ram Krishna Balothia11but the said judgment was inignorance of the Constitution Bench judgment in GurbakshSingh Sibbia etc. versus State of Punjab12. If a Court is notdebarred from granting anticipatory bail even in most heinousoffences including murder, rape, dacoity, robbery, NDPS, seditionetc., which are punishable with longer periods depending uponparameters for grant of anticipatory bail, taking away such powerin respect of offences under the Act is discriminatory and violativeof Article 14. Exclusion of court’s jurisdiction, even where thecourt is satisfied that arrest of a person was not called for, has nonexus with the object of the Atrocities Act. In this regard, reliancehas been placed on following observations in Sibbia (supra).
“10. Shri V.M. T arkunde, appearing on behalf of someof the appellants, while supporting the contentions ofthe other appellants, said that since the denial of bailamounts to deprivation of personal liberty, courtsshould lean against the imposition of unnecessaryrestrictions on the scope of Section 438, when no suchrestrictions are imposed by the legislature in the termsof that section. The learned Counsel added a newdimension to the argument by invoking Article 21 ofthe Constitution. He urged that Section 438 is aprocedural provision which is concerned with thepersonal liberty of an individual who has not been convicted of the offence in respect of which he seeksbail and who must therefore be presumed to beinnocent. The validity of that section must accordinglybe examined by the test of fairness andreasonableness which is implicit in Article 21. If thelegislature itself were to impose an unreasonablerestriction on the grant of anticipatory bail, such arestriction could have been struck down as beingviolative of Article 21. Therefore, while determiningthe scope of Section 438, the court should not imposeany unfair or unreasonable limitation on theindividual’s right to obtain an order of anticipatorybail. Imposition of an unfair or unreasonable limitation,according to the learned Counsel, would be violativeof Article 21, irrespective of whether it is imposed bylegislation or by judicial decision.16. Reliance has also placed on recent judgment of this Court inNikesh Tarachand Shah versus Union of India and Anr.13declaring Section 45 of the Prevention of Money Laundering Act,2002 unconstitutional. This Court held that fetters on grant ofbail under the said provision when such fetters were notapplicable to other offences punishable in like manners wasdiscriminatory and against the principle of fair just andreasonable procedure.Submissions of counsel for intervenor supporting the appeal.
13. … …The High Court and the Court of Session towhom the application for anticipatory bail is madeought to be left free in the exercise of their judicialdiscretion to grant bail if they consider it fit so to doon the particular facts and circumstances of the caseand on such conditions as the case may warrant. ….
21. …. …A wise exercise of judicial power inevitablytakes care of the evil consequences which are likely toflow out of its intemperate use. …
26. We find a great deal of substance in Mr.T arkunde’s submission that since denial of bailamounts to deprivation of personal liberty, the courtshould lean against the imposition of unnecessaryrestrictions on the scope of Section 438, especiallywhen no such restrictions have been imposed by thelegislature in the terms of that section. Section 438 isa procedural provision which is concerned with thepersonal liberty of the individual, who is entitled to thebenefit of the presumption of innocence since he isnot, on the date of his application for anticipatory bail,convicted of the offence in respect of which he seeksbail. An over-generous infusion of constraints andconditions which are not to be found in Section 438can make its provisions constitutionally vulnerablesince the right to personal freedom cannot be made todepend on compliance with unreasonable restrictions.The beneficent provision contained in Section 438must be saved, not jettisoned. No doubt can lingerafter the decision in Maneka Gandhi (1978) 1 SCC 248,that in order to meet the challenge of Article 21 of theConstitution, the procedure established by law fordepriving a person of his liberty must be fair, just andreasonable. Section 438, in the form in which it isconceived by the legislature, is open to no exceptionon the ground that it prescribes a procedure which isunjust or unfair. We ought, at all costs, to avoidthrowing it open to a Constitutional challenge byreading words in it which are not to be found therein.”
17. Ms. Manisha T. Karia, counsel appearing for intervenor onbehalf of Sapna Korde @ Ketaki Ghodinde, who also claims to bevictim of a false complaint, submitted that respondent No. 2lodged a false FIR No. 3210 of 2017 dated 2ndNovember, 2017against her at Khadki police station alleging that she, in collusionwith the appellant herein, pressurized respondent no. 2 towithdraw the FIR No.164 of 2016 registered with Karad PoliceStation and she falsely implicated respondent no. 2 in a sexualharassment case. She is working as an Assistant Professor in theDepartment of Instrumentation and Control in College ofEngineering, Pune since last eight years where respondent No. 2was working as a storekeeper. She had made a complaint againsthim for her sexual harassment and as a reaction, the FIR waslodged by respondent No. 2 by way of the Atrocities Act. Heranticipatory bail application was rejected by the session court butthe High Court, vide order dated 23rdNovember, 2017, grantedinterim protection against arrest. Thereafter, respondent No. 2initiated proceedings under Section 107 Cr.P .C. and the intervenorreceived notice dated 2ndDecember, 2017 from the Magistrate. Itwas submitted that there was no safeguard against falseimplication, undue harassment and uncalled for arrest and thus,this Court must incorporate safeguards against unreasonable andarbitrary power of arrest in such cases without following just fairand reasonable procedure which may be laid down by this Court.Such requirement, it was submitted, was implicit requirement oflaw but was not being followed.
18. Laying down safeguards to enforce constitutional guaranteeunder Article 21 was necessary in view of the Sixth Report dated19thDecember, 2014 of the Standing Committee on Social Justiceand Empowerment (2014-15) on the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014rejecting the stand of the Ministry to the effect that there was noneed to provide for action against false or malafide implicationunder the Atrocities Act. It was observed therein:-
“3.9 The Committee are not inclined to accept thecontention of the Ministry that those who are found tobe misusing the provisions of the Act can be tried asper normal law of the land under the relevant sectionsof the IPC. The Committee are of the firm view thatthe PoA Act, being a special law, should be wholesometo the extent that it must contain an inbuilt provisionfor securing justice for those too who are falselyimplicated with mala fide under it. More so, when thelaw makers have shown such perspicacity inaddressing such issues/misgivings when they insertedclause 14 (Punishment for false or malicious complaintand false evidence) in ‘The Sexual Harassment ofwomen at Workplace (Prevention, Prohibition andRedressal) Act, 2013.”19. Thus, unless this Court laid down appropriate guidelines,there will be no protection available against arbitrary arrests orfalse implications in violation of Article 21 of the Constitution. Theintervenor submitted that preliminary enquiry must be heldbefore arrest with regard to the following factors:
“a. Date and time of the incident and provocation.20. The following further safeguards have been suggested bythe counsel for the intervenor:
b. Preexisting dispute between the parties orrivalry.
c. Gravity of the issue involved.
d. Nature of allegations by both the parties.
e. Necessary documents and evidence by thevictim and accused to substantiate their case tobe placed before committee.
f. The proceedings may be recorded to avoidallegations of bias and non-transparency.”
“Arrest specifically in connection with offences underPOA Act should only be made with the prior sanctionof the Magistrate. However this may not apply in casearrest has to be made in connection with otheroffences under IPC. Further the gravity of offence alsoneeds to be seen since most of the cases at theinstitutional level are only on the basis of merealtercations or action by the public servants in theirofficial capacity.21. In support of the submission that courts have acknowledgedthe misuse of law, reliance has also been placed on the followingJudgments :
Secondly if the Accused under the POA Act surrenderswith prior notice to the Public Prosecutor, then his bailApplication should be considered on the same day andif not the regular bail, then at the least interim bailshould be granted in the interest of justice. Thisrequirement may be read into Section 18 of the POAAct.”
(i) Judgment of the Madras High Court in Jones versusState14wherein the High Court observed:
(ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs.State of Gujarat15observing :
“This Court recently has brought to light the misuseof the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 against peopleof other community. This is another example ofmisuse of the Act. The purpose of bringing SC & STAct is to put down the atrocities committed on themembers of the scheduled castes and scheduledtribes. The law enforcing authorities must bear inmind that it cannot be misused to settle otherdisputes between the parties, which is alien to theprovisions contemplated under the Act. An Actenacted for laudable purpose can also becomeunreasonable, when it is exercised overzealously bythe enforcing authorities for extraneous reasons. It14is for the authorities to guard against such misuseof power conferred on them.”
“But then having closely examined the complaintmore particularly in the context and light of thebackdrop of the peculiar facts situation highlightedby the petitioner leading ultimately to filing of thecomplaint, this Court prime facie at the very outsetis at some doubt about the complainant's story andyet if it readily, mechanically like a gullible childaccepts the allegations made in the complaint at itsface value, it would be surely blundering andwandering away from the path of bail-justice,making itself readily available in the hands of thescheming complainant who on mere asking will getarrested accused on some false allegations ofhaving committed non-bailable offence, under theAtrocity Act, meaning thereby the Court renderingitself quite deaf, dumb and blind mortgaging itscommonsense, ordinary prudence with noperception for justice, denying the rightfulprotection to the accused becoming ready pawnpliable in the hands of sometime scheming,unscrupulous complainants !!! This sort of asurrender to prima facie doubtful allegation in thecomplaint is not at all a judicial approach, if notunjudicial !! At the cost of repetition, 1 make it clearthat these observations are only preliminary, at thisstage only in peculiar background of the casehighlighted by petitioner-accused and for thatpurpose may be even in future be so highlighted bythe accused in some other cases to the satisfactionof the Court ! The reason is having regard to thebasic cardinal tenets of the criminal jurisprudencemore particularly in view of the peculiarcircumstances highlighted by the accused whichallegedly actuated complainant to victimise him, in case if ultimately at the end of trial what theaccused has submitted in defence is accepted asprobable or true and as a result, the accused isgiven a clean bill, holding that the complaint wasnothing else but false, concoction by way of spite towreck the personal vengeance then in that casewhat indeed would be the remedy and redresses inthe hands of the petitioner, who in the instant caseis Doctor by profession and for that purpose inother cases an innocent citizen? He stands not onlystigmatised by filing of a false complaint againsthim but he shall stand further subjected to trial !!Not only that but before that even subjected toarrest before the public eye and taken to SpecialCourt where only he could pray for bail ! Thus,subjected to all sort of agonies, pains andsufferings lowering his image and esteem in theeye of public because the Court when approachedadopted the helpless attitude? Under suchbewildering circumstances, what indeed would bethe face of the Court and the fate of theAdministration of Justice denying bail to somevictimised innocent accused at crucial stage whenhe surrenders to the Court custody for thepurpose?!! Should the Court proclaiming doingjustice stand befooled at the hands of somemischievous complainant with head-down in shame!! Supposing for giving false evidence before theCourt, the complainant is ordered to be prosecuted,but then will such prosecutions of complainantbring back the damage already done to an innocent!! Bearing in mind this most embarrassing andexcruciating situation created by thecomplainant when, this Court as aConstitutional functionary is duty bound tozealously protect the liberty of citizen, shouldit be helplessly watching and passivelysurrendering itself to sometimes prima facieex-facie malicious complaint denying simplebail to the accused? In this regard, perhaps, itmay be idly said that accused can be givencompensation for the malicious prosecutionand ultimate refusal of bail or anticipatorybail !! True, but then in that case whatcompensation can any Court would be in aposition to give when the complainant is aperson who is poor enough unable to pay asingle pie?!! Not only that but in casecomplainant is rich and able to paycompensation then even can any monetarycompensation ever adequately compensatethe wrong accused suffered at the hands ofthe malicious complainant? It is here that theconscience of this Court stands pricked andterribly perturbed and indeed will have asleepless night if what ought we do not knowwhere the petitioner, in the facts andcircumstances of the case be quite innocentand accordingly a needy consumer of bailjustice and yet is unnecessarily subjected toarrest taken to the police custody and thenbefore Court because of denial of bail to himat this stage !!”(iii) Dealing with the same issue, the Gujarat High Court inDhiren Prafulbhai Shah versus State of Gujarat16observedas under:
“48. In the course of my present sitting, I have comeacross various cases wherein the provisions ofAtrocities Act are misused. I find that variouscomplaints are filed immediately after elections, be itPanchayat, Municipal or Corporation, alleging offenceunder the Atrocities Act. I have no hesitation in sayingthat in most of the cases, it was found that theF .I.R.s/Complaints were filed only to settle the scorewith their opponents after defeat in the elections. Ihave also come across various cases, wherein, privatecivil disputes arising out of property, monetary1 matters, dispute between an employee and employer,dispute between the subordinate and his superior - aregiven penal and the complaints are being filed eitherunder Section 190 r/w. 200 or F .I.Rs. at the policestation. The matter in hand is one another example ofmisuse of the Act. As observed by me earlier, thepurpose of bringing SC and ST Act is to put-down theatrocities committed on the members of theScheduled Castes and Scheduled Tribes. The lawenforcing authorities must bear in mind that it cannotbe misused to settle other disputes between theparties like the case one in hand, which is alien to theprovisions contemplated under the laudable Act. AnAct enacted for laudable purpose can also becomeunreasonable, when it is exercised over-zealously bythe enforcing authorities for extraneous reasons. It isfor the authorities to guard against such misuse ofpower conferred on them.(iv) Judgment of Gujarat High Court in Pankaj D Sutharversus State of Gujarat17observing :
49. Passing mechanically orders by the Court ofMagistrates in complaint and/or registration of theF .I.R. at the Police Station, which do not have anycriminal element, causes great hardships, humiliation,inconvenience and harassment to the citizens. For noreasons the reputation of the citizen is put to stake asimmediately after the said orders are passed, innocentcitizens are turned as accused. One should notoverlook the fact that there is Section-18 in theAtrocities Act, which imposes a bar so far as the grantof anticipatory bail is concerned, if the offence is oneunder the Atrocities Act. If a person is accused havingcommitted murder, dacoity, rape, etc., he can pray foranticipatory bail under Section-438 of the Cr.P .C. onthe ground that he is innocent and has been falselyinvolved, but if a person alleged to have committed anoffence under the Atrocities Act, cannot pray for ananticipatory bail because of the bar of Section-18 ofthe Act, and he would get arrested. This is the reasonfor the authorities to guard against any misuse of theProvisions of the Atrocities Act.”
“4. …But then, what according to this Court isthe most welcome step by way of collectivewisdom of the Parliament in ushering socialbeneficial legislation cannot be permitted tobe abused and converted into an instrumentto blackmail to wreak some personalvengeance for settling and scoring personalvendetta or by way of some counter-blastsagainst opponents some public servants, asprima facie appears to have been done in thepresent case. The basic questions in suchcircumstances therefore are-Whether a torchwhich is lighted to dispel the darkness can itbe permitted to set on fire the innocentsurroundings? Whether a knife an instrumentwhich is meant for saving human life by usingthe same in the course of operation by asurgeon, can it be permitted to be used intaking the life of some innocent? The very samefundamental question arises in the facts andcircumstances of this case also, viz., 'whether anystatute like the present Atrocities Act, especiallyenacted for the purposes of protecting weakersections of the society hailing from S.C. & S.T.communities can be permitted to be abused byconveniently converting the same into a weapon ofwrecking personal vengeance on the opponents?'The answer to this question is undoubtedlyand obviously 'No'. Under such circumstances,if the Courts are to apply such provision ofSection 18 of the Atrocities Act quitemechanically and blindly merely guided bysome general and popular prejudices based onsome words and tricky accusations in thecomplaint on mere assumptions withoutintelligently scrutinising and testing theprobabilities, truthfulness, genuineness and therwise dependability of the accusations inthe complaint etc., then it would be simplyunwittingly and credulously playing in thehands of some scheming unscrupulouscomplainant in denying the justice. Virtually, itwould be tantamount to abdicating and relegatingits judicial duty, function of doing justice in suchmatters in favour and hands of such unscrupulouscomplainant by making him a Judge in his owncause. This is simply unthinkable and thereforeimpermissible. Whether the provisions of anyparticular Act and for that purpose the rulesmade thereunder are applicable to the facts ofa particular case or not, is always andunquestionably a matter which lies strictlyand exclusively within the domain of 'judicialconsideration-discretion' and thereforeneither mere allegations made in thecomplainant by themselves nor bare denialsby the accused can either automatically vestor divest the Court from discharging itsultimate judicial function-duty to closelyscrutinise and test the prima faciedependability of the allegations made in thecomplaint and reach its own decision.”(v) Judgment of Bombay High Court in Sharad versusState of Maharashtra18observing :
“12. We hasten to add that such type ofcomplaints for rampant misuse of theprovisions of Section 3(1)(x) of the ScheduledCastes & Scheduled Tribes (Prevention ofAtrocities) Act, 1989, are largely being filedparticularly against Public Servants/quasijudicial/judicial officers with oblique motivefor satisfaction of vested interests. We thinkthe learned Members of the Bar haveenormous social responsibility and obligation1 to ensure that the social fabric of the societyis not damaged or ruined. They must ensurethat exaggerated versions should not bereflected in the criminal complaints havingthe outrageous effect of independence ofjudicial and quasi judicial authorities so alsothe public servants. We cannot tolerateputting them in a spooked, chagrined andfearful state while performing their publicduties and functions. We also think that aserious re-look at the provisions of the Act of1989 which are being now largely misused iswarranted by the Legislature, of course, onthe basis of pragmatic realities and publicopinion. A copy of this Judgment is directedto be sent to the Law Commission forinformation.”
22. It was, thus, submitted that above judgments are merelyillustrations to show that the abuse of law was rampant. If mereaccusations are treated as sufficient, it may unfairly damage thepersonal and professional reputation of a citizen. There is a needto balance the societal interest and peace on the one hand andthe protection of rights of victims of such false allegations on theother. If allegations are against an employee, a committeeshould be formed in every department as follows:-
“i. The employer or Head of every institution maybe directed to constitute an internal committee to lookinto the matters and specific grievances related toatrocities committed on the members of SC/ST.…………..23. It has been further suggested that Magistrate must verify theaverments in a Complaint/FIR to ascertain whether a prima faciecase is made out and whether arrest was necessary and only thenarrest should be made or continued.
ii. That before proceeding to lodge any FIR orcriminal complaint, a written complaint should madeto the internal committee of the institution along withsupportive evidence.
iii. Such committee may be given the power toconduct a preliminary inquiry into the matter byhearing both the parties and other evidence, so as toascertain the existence of a prima facie case underthe POA Act.”
24. It is further submitted by the counsel for the intervenor thatthe Atrocities Act is also prone to misuse on account of monetaryincentive being available merely for lodging a case under Rule12(4) of Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Rules, 1995. Such incentive may encourage not onlygenuine victims but, there being no safeguard even against afalse case being registered only to get the monetary incentive,such false cases may be filed without any remedy to the affectedperson.
25. Reference has also been made to Annual Report 2016-2017of the Ministry of Social Justice and Empowerment and datacompiled by the Government of Maharashtra for the years 1990to 2013 (dated 30thApril, 2013) in respect of offences registeredunder Scheduled Caste and Scheduled Tribe (Prevention ofAtrocities) Act, 1989 and Protection of Civil Rights Act, 1955against Maharashtra Members of Parliament, Member ofLegislative Assembly, Zill Parishad Adhyaksha, Gramsevak,T alathi, B.D.O., Collector, Palakmantri, Chief Minister, HomeMinister, IPS, IAS, IRS, IFS, MNP Commissioner, MNP AssistantCommissioner, other Government Officer/Servant, other non-Government Officers/Servants (numeric data prepared on thebasis of information available).
26. As per data (Crime in India 2016 – Statistics) compiled by theNational Crime Records Bureau, Ministry of Home Affairs underthe headings “Police Disposal of Crime/Atrocities againstSCs cases (State/UT-wise)-2016” (T able 7A.4) and “PoliceDisposal of Crime/Atrocities against STs Cases (State/UT-wise) – 2016”
(T able 7C.4) it is mentioned that in the year 2016,5347 cases were found to be false cases out of the investigatedout of SC cases and 912 were found to be false cases out of STcases. It was pointed out that in the year 2015, out of 15638cases decided by the courts, 11024 cases resulted in acquittal ordischarge, 495 cases were withdrawn and 4119 cases resulted inconviction. (Reference: Annual Report 2016-2017 published bythe Department of Social Justice & Empowerment, Ministry ofSocial Justice and Empowerment, Government of India).Interventions against the appellant
27. Intervention application has also been filed by one AnandaSakharam Jadhav who claims to be convenor of the BahujanKarmachari Kalyan Sangh. Shri C.U. Singh, learned senior counselappearing for the said intervenor, submitted that where law isclear no guideline should be issued by the Court. Reliance hasbeen placed on State of Jharkhand and Anr. Versus GovindSingh19and Rohitash Kumar and Ors versus Om PrakashSharma and Ors.20It was submitted that this Court could notlay down guidelines in the nature of legislation.
28. Shri C.U. Singh submitted that the Section 18 of theAtrocities Act has already been upheld in Balothia (supra) andManju Devi versus Onkarjit Singh Ahluwalia21. He alsorelied upon Statement of Objects and Reasons of the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities)Amendment Bill, 2013 dated 14thJuly, 2014. Therein it is statedthat there are procedural hurdles such as non-registration ofcases, procedural delays in investigation, arrests and filing ofcharge-sheets and delays in trial and low conviction rate onaccount of which in spite of deterrent provisions, atrocitiesagainst SC/ST continues at disturbing level which necessitatedamendment in the Act.
29. Further intervention has been sought by one YogendraMohan Harsh. Learned counsel for the said intervenor submittedthat atrocities against SCs and ST s are increasing and ifsubmissions of amicus are to be accepted, the Act will berendered ineffective and teethless.S ubmissions 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 intothe issue of validity of provisions of the Atrocities Act. He alsosubmitted that decisions of this Court in Vilas PandurangPawar and Anr. versus State of Maharashtra and Ors.22and Shakuntla Devi versus Baljinder Singh23permit grant ofanticipatory bail if no prima facie case is made out. Thus, ingenuine cases anticipatory bail can be granted. He alsosubmitted that the Government of India had issued advisories on3rdFebruary, 2005, 1stApril, 2010 and 23rdMay, 2016 and alsofurther amended the Atrocities Act vide Amendment Act No. 1 of2016 which provides for creation of Special Courts as well asExclusive Special Courts. Referring to the data submitted by theNational Crime Records Bureau (NCRB) it was further submittedthat out of the total number of complaints investigated by thepolice in the year 2015, both for the persons belonging to the SCcategory 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 than75% cases have resulted in acquittal/withdrawal or compoundingof the cases. It was submitted that certain complaints werereceived alleging misuse of the Atrocities Act and a question wasalso raised in Parliament as to what punishment should be givenagainst false cases. The reply given was that awardingpunishment to members of SCs and ST s for false implicationwould be against the spirit of the Act. A press statement dated19thMarch, 2015 was issued by the Central Government to theeffect that in case of false cases, relevant Sections of IPC can beinvoked. It was submitted that no guideline should be laid downby this Court which may be legislative in nature.Consideration of the issue whether directions can beissued by this Court to protect fundamental right underArticle 21 against uncalled for false implication andarrests
31. We may, at the outset, observe that jurisdiction of this Courtto issue appropriate orders or directions for enforcement offundamental rights is a basic feature of the Constitution. ThisCourt, as the ultimate interpreter of the Constitution, has touphold the constitutional rights and values. Articles 14, 19 and21 represent the foundational values which form the basis of therule of law. Contents of the said rights have to be interpreted in amanner which enables the citizens to enjoy the said rights. Rightto equality and life and liberty have to be protected against anyunreasonable procedure, even if it is enacted by the legislature.The substantive as well as procedural laws must conform toArticles 14 and 21. Any abrogation of the said rights has to benullified by this Court by appropriate orders or directions. Powerof the legislature has to be exercised consistent with thefundamental rights. Enforcement of a legislation has also to beconsistent with the fundamental rights. Undoubtedly, this Courthas jurisdiction to enforce the fundamental rights of life andliberty against any executive or legislative action. The expression‘procedure established by law’ under Article 21 implies just, fairand reasonable procedure24.
32. This Court is not expected to adopt a passive or negativerole and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies soas to check injustice and violation of fundamental rights. Noprocedural technicality can stand in the way of enforcement offundamental rights25. There are enumerable decisions of thisCourt where this approach has been adopted and directionsissued with a view to enforce fundamental rights which maysometimes be perceived as legislative in nature. Such directionscan certainly be issued and continued till an appropriatelegislation is enacted26. Role of this Court travels beyond merelydispute settling and directions can certainly be issued which arenot directly in conflict with a valid statute27. Power to declare lawcarries with it, within the limits of duty, to make law when noneexists28.
33. Constitution Bench of this Court in Union of India versusRaghubir Singh29, observed :
“7. … It used to be disputed that Judges make law.T oday, it is no longer a matter of doubt that asubstantial volume of the law governing the lives ofcitizens and regulating the functions of the State flowsfrom the decisions of the superior Courts. "There wasa time," observed Lord Reid, "When it was thoughtalmost indecent to suggest that Judges make law -They only declare it.... But we do not believe in fairlytales any more." "The Judge as Law Maker", p. 22. Incountries such as the United Kingdom, whereParliament as the legislative organ is supreme andstands at the apex of the constitutional structure ofthe State, the role played by judicial law-making islimited.34. The law has been summed up in a decision in RajeshKumar versus State30as follows:
In the first place the function of the Courts is restrictedto the interpretation of laws made by Parliament, andthe Courts have no power to question the validity ofParliamentary statutes, the Diceyan dictum holdingtrue that the British Parliament is paramount and allpowerful. In the second place, the law enunciated inevery decision of the Courts in England can besuperseded 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 thevalidity of an Act of Parliament could be questioned.An act of the Legislature is superior in authority to anyCourt of Law.
And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 AllER 779 referred to a Parliamentary statute as "thehighest form of law...which prevails over every otherform of law." The position is substantially differentunder a written Constitution such as the one whichgoverns us. The Constitution of India, whichrepresents the Supreme Law of the land, envisagesthree distinct organs of the State, each with its owndistinctive functions, each a pillar of the State.
Broadly, while Parliament and the State Legislature finIndia enact the law and the Executive Governmentimplements it, the judiciary sits in judgment not onlyon the implementation of the law by the Executive butalso on the validity of the Legislation sought to beimplemented One of the functions of the superiorjudiciary in India is to examine the competence andvalidity of legislation, both in point of legislativecompetence as well as its consistency with theFundamental Rights. In this regard, the Courts in Indiapossess a power not known to the English Courts.Where a statute is declared invalid in India it cannotbe reinstated unless constitutional sanction isobtained therefore by a constitutional amendment ofan appropriately modified version of the statute isenacted which accords with constitutionalprescription.
The range of judicial, review recognised in the superiorjudiciary of India is perhaps the widest and the mostextensive known to the world of law.
The power extends to examining the validity of evenan amendment to the Constitution, for now it hasbeen repeatedly held that no constitutionalamendment can be sustained which [violates thebasic structure of the Constitution. See KesavanandaBharati Sripadagalayaru v. State of KeralaAIR1973SC1461), Smt. Indira Nehru. Gandhi v. RajNarain 2SCR347], Minerva Mills Ltd. v. Union ofIndia 1SCR206] and recently in S. P. SampathKumar v. Union of India [(1987)ILLJ128SC]. With thisimpressive expanse of judicial power, it is only rightthat the superior Courts in India should be consciousof the enormous responsibility which rests on them.This is specially true of the Supreme Court, for as thehighest Court in the entire judicial system the lawdeclared by it is, by Article 141 of the Constitution,binding on« all Courts within the territory of India.”
“62. Until the decision was rendered in Maneka Gandhi(supra), Article 21 was viewed by this Court as rarelyembodying the Diceyian concept of rule of law that noone can be deprived of his personal liberty by anexecutive action unsupported by law. If there was alaw which provided some sort of a procedure it wasenough to deprive a person of his life or personalliberty. In this connection, if we refer to the examplegiven by Justice S.R. Das in his judgment in A.K.Gopalan (supra) that if the law provided the Bishop ofRochester 'be boiled in oil' it would be valid underArticle 21. But after the decision in Maneka Gandhi(supra) which marks a watershed in the developmentof constitutional law in our country, this Court, for thefirst time, took the view that Article 21 affordsprotection not only against the executive action butalso against the legislation which deprives a person ofhis life and personal liberty unless the law fordeprivation is reasonable, just and fair. and it was heldthat the concept of reasonableness runs like a goldenthread through the entire fabric of the Constitutionand it is not enough for the law to provide somesemblance of a procedure. The procedure fordepriving a person of his life and personal liberty mustbe eminently just, reasonable and fair and ifchallenged before the Court it is for the Court todetermine whether such procedure is reasonable, justand fair and if the Court finds that it is not so, theCourt will strike down the same.”35. Apart from the above, there are enumerable occasions whenthis Court has issued directions for enforcement of fundamentalrights e.g., directions regarding functioning of caste scrutinyCommittee31; directions to regulate appointment of law officers State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1directions to regulate powers of this Court and High Courts indesignating Senior Advocates33; guidelines have been issued forthe welfare of a child accompanying his/her mother inimprisonment34; directions for checking trafficking of women andchildren35; for night shelters for the homeless36; directions tocheck malnutrition in children37; directions to provide medicalassistance by Government run hospitals38; directions forprotection of human rights of prisoners39; directions for speedytrial of under trials40. The list goes on.
36. Issuance of directions to regulate the power of arrest hasalso been the subject matter of decisions of this Court. InJoginder Kumar versus State of U.P .41, this Court observedthat horizon of human rights is expanding. There are complaintsof violation of human rights because of indiscriminate arrests.The law of arrest is of balancing individual rights, liberties andprivileges, duties, obligations and responsibilities. On the one side is the social need to check a crime, on the other there issocial need for protection of liberty, oppression and abuse by thepolice and the other law enforcing agencies. This Court noted the3rdReport of the National Police Commission to the effect thatpower of arrest was one of the chief sources of corruption ofpolice. 60% of arrests were unnecessary or unjustified. Thearrest could be unjustified only in grave offences to inspire theconfidence of the victim, to check the accused from committingfurther crime and to prevent him from absconding. The NationalPolice Commission recommended that the police officer makingarrest should record reasons. This Court observed that no arrestcan be made merely because it is lawful to do so. The exercise ofpower must be for a valid purpose. Except in heinous offencesarrest must be avoided. This requirement was read into Article2142. In Arnesh Kumar versus State of Bihar43, this Courtobserved that arrest brings humiliation, curtails freedom andcasts scars forever. It is considered a tool for harassment andoppression. 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 ofrecommendations of the Law Commissions, it was directed thatarrest may be justified only if there is ‘credible information’ or‘reasonable suspicion’ and if arrest was necessary to preventfurther offence or for proper investigation or to check interferencewith the evidence. Reasons are required to be recorded.However, compliance on the ground is far from satisfactory forobvious reasons. The scrutiny by the Magistrates is also notadequate. This Court issued the following directions:
“11. Our endeavour in this judgment is to ensurethat police officers do not arrest the accusedunnecessarily and Magistrate do not authorisedetention casually and mechanically. In order toensure what we have observed above, we give thefollowing directions:37. In D.K. Basu versus State of W.B.44, this Court, to checkabuse of arrest and drastic police power, directed as follows:
11.1. All the State Governments to instruct its policeofficers not to automatically arrest when a case underSection 498-A IPC is registered but to satisfythemselves about the necessity for arrest under theparameters laid down above flowing from Section 41CrPC;
11.2. All police officers be provided with a check listcontaining specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check listduly filled and furnish the reasons and materialswhich necessitated the arrest, whileforwarding/producing the accused before theMagistrate for further detention;
11.4. The Magistrate while authorising detention ofthe accused shall peruse the report furnished by thepolice officer in terms aforesaid and only afterrecording its satisfaction, the Magistrate will authorisedetention;
11.5. The decision not to arrest an accused, beforwarded to the Magistrate within two weeks fromthe date of the institution of the case with a copy tothe Magistrate which may be extended by theSuperintendent of Police of the district for the reasonsto be recorded in writing;
11.6. Notice of appearance in terms of Section 41-ACrPC be served on the accused within two weeks fromthe date of institution of the case, which may beextended by the Superintendent of Police of thedistrict for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaidshall apart from rendering the police officersconcerned liable for departmental action, they shallalso be liable to be punished for contempt of court tobe instituted before the High Court having territorialjurisdiction.
11.8. Authorising detention without recordingreasons as aforesaid by the Judicial Magistrateconcerned shall be liable for departmental action bythe appropriate High Court.”
“35. We, therefore, consider it appropriate to issuethe following requirements to be followed in all casesof arrest or detention till legal provisions are made inthat behalf as preventive measures:38. In Rini Johar (supra) this Court considered the issue ofwrongful arrest and payment of compensation. It was observedthat wrongful arrest violates Article 21 of the Constitution andthus the victim of arrest was entitled to compensation. This Courtnoted the observations and guidelines laid down against wrongfularrests in Joginder Kumar (supra), D.K. Basu (supra), ArneshKumar (supra) and other cases and held that since the arrest isin violation of guidelines laid down by this Court and is violative ofArticle 21, the person arrested was entitled to compensation.
(1) The police personnel carrying out the arrestand handling the interrogation of the arrestee shouldbear accurate, visible and clear identification andname tags with their designations. The particulars ofall such police personnel who handle interrogation ofthe arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest ofthe arrestee shall prepare a memo of arrest at thetime of arrest and such memo shall be attested by atleast one witness, who may either be a member ofthe family of the arrestee or a respectable personof the locality from where the arrest is made. It shallalso be countersigned by the arrestee and shallcontain the time and date of arrest.
(3) A person who has been arrested or detainedand is being held in custody in a police station orinterrogation centre or other lock-up, shall be entitledto have one friend or relative or other person knownto him or having interest in his welfare beinginformed, as soon as practicable, that he has beenarrested and is being detained at the particular place,unless the attesting witness of the memo of arrest ishimself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custodyof an arrestee must be notified by the police wherethe next friend or relative of the arrestee lives outsidethe district or town through the Legal AidOrganisation in the District and the police station ofthe area concerned telegraphically within a period of8 to 12 hours after the arrest.
(5) The person arrested must be made aware ofthis right to have someone informed of his arrest ordetention as soon as he is put under arrest or isdetained.
(6) An entry must be made in the diary at theplace of detention regarding the arrest of the personwhich shall also disclose the name of the next friendof the person who has been informed of the arrestand the names and particulars of the police officialsin whose custody the arrestee is.
(7) The arrestee should, where he so requests, bealso examined at the time of his arrest and major andminor injuries, if any present on his/her body, must berecorded at that time. The “Inspection Memo”mustbe signed both by the arrestee and the police officereffecting the arrest and its copy provided to thearrestee.
(8) The arrestee should be subjected to medicalexamination by a trained doctor every 48 hoursduring his detention in custody by a doctor on thepanel of approved doctors appointed by Director,Health Services of the State or Union T erritoryconcerned. Director, Health Services should preparesuch a panel for all tehsils and districts as well.
(9) Copies of all the documents including thememo of arrest, referred to above, should be sent tothe Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet hislawyer during interrogation, though not throughoutthe interrogation.
(11) A police control room should be provided at alldistrict and State headquarters, where informationregarding the arrest and the place of custody of thearrestee shall be communicated by the officercausing the arrest, within 12 hours of effecting thearrest and at the police control room it should bedisplayed on a conspicuous notice board.
36. Failure to comply with the requirementshereinabove mentioned shall apart from renderingthe official concerned liable for departmental action,also render him liable to be punished for contempt ofcourt and the proceedings for contempt of court maybe instituted in any High Court of the country, havingterritorial jurisdiction over the matter.
37. The requirements, referred to above flow fromArticles 21 and 22(1) of the Constitution and need tobe strictly followed. These would apply with equalforce to the other governmental agencies also towhich a reference has been made earlier.”
39. In Subramanian Swamy versus UOI45, this Courtconsidered the issue of validity of provisions creating defamationas an offence. In the course of said judgment, need for harmonyin competing claims of different interests was considered. ThisCourt observed that the fundamental rights are all parts of anintegrated scheme and their waters must mix to constitute grandflow of impartial justice46. This Court also observed that legislation should not invade the rights and should not smack ofarbitrariness. Considering the principles of reasonableness, thisCourt observed that ultimate impact of rights has to bedetermined. This was different from abuse or misuse oflegislation. Proportionality of restraint has to be kept in mindwhile determining constitutionality. Concept of public interest andsocial interest determine the needs of the society47. Afterreferring to Maneka Gandhi (supra), it was observed that it isthe duty of this Court to strike a balance in the right of speechand right to protect reputation48. The restriction of law should berational and connected to the purpose for which it is necessary. Itshould not be arbitrary or excessive49.
40. Again this Court in Siddharam Satlingappa Mhetreversus State of Maharashtra50laid down parameters forexercise of discretion of anticipatory bail having regard to thefundamental right of liberty under Article 21 of the Constitutionand the needs of the society where such liberty may be requiredto be taken away. It was observed:
“Relevance and importance of personal liberty41. It is, thus, too late in the day to accept an objection that thisCourt may not issue any direction which may be perceived to beof legislative nature even if it is necessary to enforce fundamentalrights under Articles 14 and 21 of the Constitution.Further consideration of potential impact of working ofAtrocities Act on spreading casteism
36. All human beings are born with some unalienable rightslike life, liberty and pursuit of happiness. The importance ofthese natural rights can be found in the fact that these arefundamental for their proper existence and no other right canbe enjoyed without the presence of right to life and liberty.Life bereft of liberty would be without honour and dignity andit would lose all significance and meaning and the life itselfwould not be worth living. That is why “liberty” is called thevery quintessence of a civilised existence. …
52. The fundamental rights represent the basic valuesenriched by the people of this country. The aim behind havingelementary right of the individual such as the Right to Lifeand Liberty is not fulfilled as desired by the Framers of theConstitution. It is to preserve and protect certain basic humanrights against interference by the State. The inclusion of achapter in the Constitution is in accordance with the trends ofmodern democratic thought. The object is to ensure theinviolability of certain essential rights against politicalvicissitudes. …
54. Life and personal liberty are the most prized possessionsof an individual. The inner urge for freedom is a naturalphenomenon of every human being. Respect for life, libertyand property is not merely a norm or a policy of the State butan essential requirement of any civilised society.
64. The object of Article 21 is to prevent encroachment uponpersonal liberty in any manner. Article 21 is repository of allhuman rights essential for a person or a citizen. A fruitful andmeaningful life presupposes life full of dignity, honour, healthand welfare. In the modern “Welfare Philosophy” , it is for theState to ensure these essentials of life to all its citizens, and ifpossible to non-citizens. While invoking the provisions ofArticle 21, and by referring to the oftquoted statement ofJoseph Addison, “Better to die ten thousand deaths thanwound my honour” , the Apex Court in Khedat Mazdoor ChetnaSangath v. State of M.P . (1994) 6 SCC 260 posed to itself aquestion “If dignity or honour vanishes what remains of life?” This is the significance of the Right to Life and PersonalLiberty guaranteed under the Constitution of India in its ThirdPart. …
Universal Declaration of Human Rights, 1948
80. Article 3 of the Universal Declaration says:
“3. Everyone has the right to life, liberty and security ofperson.”
Article 9 provides:
“9. No one shall be subjected to arbitrary arrest, detentionor exile.”
Article 10 says:
“10. Everyone is entitled in full equality to a fair and publichearing by an independent and impartial tribunal, in thedetermination of his rights and obligations and of anycriminal charge against him.”
[As to its legal effect, see M.v. United Nations & Belgium (1972) 45 Inter LR 446 (InterLR at pp. 447, 451.)]
86. According to the Report of the National PoliceCommission, when the power of arrest is grossly abusedand clearly violates the personal liberty of the people, asenshrined under Article 21 of the Constitution, then thecourts need to take serious notice of it. When convictionrate is admittedly less than 10%, then the police should beslow in arresting the accused. The courts considering thebail application should try to maintain fine balancebetween the societal interest vis-à-vis personal libertywhile adhering to the fundamental principle of criminaljurisprudence that the accused is presumed to be innocenttill he is found guilty by the competent court.
87. The complaint filed against the accused needs to bethoroughly examined including the aspect whether thecomplainant has filed a false or frivolous complaint onearlier occasion. The court should also examine the factwhether there is any family dispute between the accusedand the complainant and the complainant must be clearlytold that if the complaint is found to be false or frivolous,then strict action will be taken against him in accordancewith law. If the connivance between the complainant andthe investigating officer is established then action be takenagainst the investigating officer in accordance with law.
88. The gravity of charge and the exact role of theaccused must be properly comprehended. Before arrest,the arresting officer must record the valid reasons whichhave led to the arrest of the accused in the case diary. Inexceptional cases the reasons could be recordedimmediately after the arrest, so that while dealing with thebail application, the remarks and observations of thearresting officer can also be properly evaluated by thecourt.
89. It is imperative for the courts to carefully and withmeticulous precision evaluate the facts of the case. Thediscretion must be exercised on the basis of the availablematerial and the facts of the particular case. In caseswhere the court is of the considered view that the accusedhas joined investigation and he is fully cooperating withthe investigating agency and is not likely to abscond, inthat event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attachedto the arrest. Arrest leads to many serious consequencesnot only for the accused but for the entire family and attimes for the entire community. Most people do not makeany distinction between arrest at a pre-conviction stage orpost-conviction stage.
110. The Law Commission in July 2002 has severelycriticised the police of our country for the arbitrary use ofpower of arrest which, the Commission said, is the result ofthe vast discretionary powers conferred upon them by thisCode. The Commission expressed concern that there is nointernal mechanism within the Police Department toprevent misuse of law in this manner and the stark realitythat complaint lodged in this regard does not bring anyresult. The Commission intends to suggest amendments inthe Criminal Procedure Code and has invited suggestionsfrom various quarters. Reference is made in this article tothe 41st Report of the Law Commission wherein theCommission saw“no justification” to require a person tosubmit to custody, remain in prison for some days andthen apply for bail even when there are reasonablegrounds for holding that the person accused of an offenceis not likely to abscond or otherwise misuse his liberty.Discretionary power to order anticipatory bail is required tobe exercised keeping in mind these sentiments and spiritof the judgments of this Court in Sibbia case (1980)2 SCC565 and Joginder Kumar v. State of U.P .(1994)4 SCC 260.
112. The following factors and parameters can be takeninto consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and theexact role of the accused must be properly comprehendedbefore arrest is made;
(ii) The antecedents of the applicant including the factas to whether the accused has previously undergoneimprisonment on conviction by a court in respect of anycognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused’s likelihood to repeatsimilar or other offences;
(v) Where the accusations have been made only withthe object of injuring or humiliating the applicant byarresting him or her;
(vi) Impact of grant of anticipatory bail particularly incases of large magnitude affecting a very large number ofpeople;
(vii) The courts must evaluate the entire availablematerial against the accused very carefully. The court mustalso clearly comprehend the exact role of the accused inthe case. The cases in which the accused is implicated withthe help of Sections 34 and 149 of the Penal Code, 1860the court should consider with even greater care andcaution because overimplication in the cases is a matter ofcommon knowledge and concern;
(viii) While considering the prayer for grant ofanticipatory bail, a balance has to be struck between twofactors, namely, no prejudice should be caused to the free,fair and full investigation and there should be prevention ofharassment, humiliation and unjustified detention of theaccused;
(ix) The court to consider reasonable apprehension oftampering of the witness or apprehension of threat to thecomplainant;
(x) Frivolity in prosecution should always be consideredand it is only the element of genuineness that shall have tobe considered in the matter of grant of bail and in theevent of there being some doubt as to the genuineness ofthe prosecution, in the normal course of events, theaccused is entitled to an order of bail.
113. Arrest should be the last option and it should berestricted to those exceptional cases where arresting theaccused is imperative in the facts and circumstances of thatcase. The court must carefully examine the entire availablerecord and particularly the allegations which have beendirectly attributed to the accused and these allegations arecorroborated by other material and circumstances on record.
114. These are some of the factors which should be takeninto consideration while deciding the anticipatory bailapplications. These factors are by no means exhaustive butthey are only illustrative in nature because it is difficult toclearly visualise all situations and circumstances in which aperson may pray for anticipatory bail. If a wise discretion isexercised by the Judge concerned, after consideration of theentire material on record then most of the grievances infavour of grant of or refusal of bail will be taken care of. Thelegislature in its wisdom has entrusted the power to exercisethis jurisdiction only to the Judges of the superior courts. Inconsonance with the legislative intention we should acceptthe fact that the discretion would be properly exercised. Inany event, the option of approaching the superior courtagainst the Court of Session or the High Court is alwaysavailable.Irrational and indiscriminate arrests are gross violationof human rights
115. In Joginder Kumar case (supra) a three-Judge Benchof this Court has referred to the 3rd Report of the NationalPolice Commission, in which it is mentioned that the quality ofarrests by the police in India mentioned the power of arrest asone of the chief sources of corruption in the police. The Reportsuggested that, by and large, nearly 60% of the arrests wereeither unnecessary or unjustified and that such unjustifiedpolice action accounted for 43.2% of the expenditure of thejails.
116. Personal liberty is a very precious fundamental right andit should be curtailed only when it becomes imperativeaccording to the peculiar facts and circumstances of the case.
117. In case, the State considers the following suggestions inproper perspective then perhaps it may not be necessary tocurtail the personal liberty of the accused in a routinemanner. These suggestions are only illustrative and notexhaustive:
(1) Direct the accused to join the investigation and onlywhen the accused does not cooperate with theinvestigating agency, then only the accused be arrested.
(2) Seize either the passport or such other relateddocuments, such as, the title deeds of properties or thefixed deposit receipts/share certificates of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of anumber of persons which according to the prosecution arenecessary in view of the facts of the particular case.
(5) The accused be directed to furnish undertaking thathe would not visit the place where the witnesses reside sothat the possibility of tampering of evidence or otherwiseinfluencing the course of justice can be avoided.
(6) Bank accounts be frozen for small duration duringthe investigation.
118. In case the arrest is imperative, according to the facts ofthe case, in that event, the arresting officer must clearlyrecord the reasons for the arrest of the accused before thearrest in the case diary, but in exceptional cases where itbecomes imperative to arrest the accused immediately, thereasons be recorded in the case diary immediately after thearrest is made without loss of any time so that the court hasan opportunity to properly consider the case for grant orrefusal of bail in the light of reasons recorded by the arrestingofficer.
119. Exercise of jurisdiction under Section 438 CrPC is anextremely important judicial function of a Judge and must beentrusted to judicial officers with some experience and goodtrack record. Both the individual and society have vitalinterest in orders passed by the courts in anticipatory bailapplications.
120. It is imperative for the High Courts through its judicialacademies to periodically organise workshops, symposiums,seminars and lectures by the experts to sensitise judicialofficers, police officers and investigating officers so that theycan properly comprehend the importance of personal libertyvis-à-vis social interests. They must learn to maintain finebalance between the personal liberty and the social interests”
42. In the light of submissions made, it is necessary to expressconcern that working of the Atrocities Act should not result inperpetuating casteism which can have an adverse impact onintegration of the society and the constitutional values. Suchconcern has also been expressed by this Court on severaloccasions. Secularism is a basic feature of the Constitution.Irrespective of caste or religion, the Constitution guaranteesequality in its preamble as well as other provisions includingArticles 14-16. The Constitution envisages a cohesive, unifiedand casteless society.
43. Dr. B.R. Ambedkar, in his famous speech on 25thNovember,1949, on conclusion of deliberations of the Constituent Assembly,stated :
“These principles of liberty, equality and fraternityare not to be treated as separate items in a trinity.They form a union of trinity in the sense that todivorce one from the other is to defeat the verypurpose of democracy. Liberty cannot be divorcedfrom equality, equality cannot be divorced fromliberty. Nor can liberty and equality be divorced fromfraternity. Without equality, liberty would produce thesupremacy of the few over the many. Equalitywithout liberty would kill individual initiative. Withoutfraternity, liberty and equality could not become anatural course of things. It would require a constableto enforce them.44. In Indra Sawhney and Ors versus Union of India andOrs.51this Court observed:
…. …… … … … … …
In India there are castes. The castes are anti-national. In the first place because they bring aboutseparation in social life. They are anti-national alsobecause they generate jealousy and antipathybetween caste and caste. But we must overcome allthese difficulties if we wish to become a nation inreality. For fraternity can be a fact only when there isa nation. Without fraternity, equality and liberty willbe no deeper than coats of paint.”
“339. Secularism is the basic feature of the IndianConstitution. It envisages a cohesive, unified and casteless society. The Constitution has completelyobliterated the caste system and has assured equalitybefore law. Reference to caste under Articles 15(2)and 16(2) is only to obliterate it. The prohibition onthe ground of caste is total, the mandate is that neveragain in this country caste shall raise its head. Evenaccess to shops on the ground of caste is prohibited.The progress of India has been from casteism toegalitarianism — from feudalism to freedom.45. In the Report of the National Commission to Review theWorking of the Constitution one of the failures of the working ofthe Constitution noted was that the elections continued to befought on caste lines. The said observations have been quoted inPeople’s Union for Civil Liberties (PUCL) and Anr. Etc.versus Union of India and Anr.52as follows:
340. The caste system which has been put in thegrave by the framers of the Constitution is trying toraise its ugly head in various forms. Caste poses aserious threat to the secularism and as a consequenceto the integrity of the country. Those who do not learnfrom the events of history are doomed to suffer again.It is, therefore, of utmost importance for the people ofIndia to adhere in letter and spirit to the Constitutionwhich has moulded this country into a sovereign,socialist, secular democratic republic and haspromised to secure to all its citizens justice, social,economic and political, equality of status and ofopportunity.”
“20. It is to be stated that similar views are expressed inthe Report submitted in March 2002 by the National Commission to Review the Working of the Constitutionappointed by the Union Government for reviewing theworking of the Constitution. Relevant recommendationsare as under:46. The speech of the then Prime Minister Shri Atal BehariVajpayee on this aspect was also noted in para 48 of the abovejudgment which is as follows:
“Successes and failures
4.4. During the last half-a-century, there havebeen thirteen general elections to the LokSabha and a much large number to variousState Legislative Assemblies. We can takelegitimate pride in that these have beensuccessful and generally acknowledged to befree and fair. But, the experience has alsobrought to the fore many distortions, somevery serious, generating a deep concern inmany quarters. There are constantreferences to the unhealthy role ofmoney power, muscle power and mafiapower and to criminalisation, corruption,communalism and casteism.”
“Mr Divan in course of his arguments, had raised somesubmissions on the subject — ‘Criminalisation of Politics’and participation of criminals in the electoral process ascandidates and in that connection, he had brought to ournotice the order of the Election Commission of India dated28-8-1997. … — ‘Whither Accountability’, published in ThePioneer, Shri Atal Behari Vajpayee had called for a nationaldebate on all the possible alternatives for systematicchanges to cleanse our democratic governing system of itspresent mess. He has expressed his dissatisfaction thatneither Parliament nor the State Vidhan Sabhas are doing,with any degree of competence or commitment, what theyare primarily meant to do: legislative function. According tohim, barring exceptions, those who get elected to thesedemocratic institutions are neither trained, formally orinformally, in law-making nor do they seem to have aninclination to develop the necessary knowledge andcompetence in their profession. He has further indicatedthat those individuals in society who are generallyinterested in serving the electorate and performinglegislative functions are finding it increasingly difficult tosucceed in today’s electoral system and the electoralsystem has been almost totally subverted by moneypower, muscle power, and vote bank considerationsof castes and communities. Shri Vajpayee also hadindicated that the corruption in the governing structureshas, therefore, corroded the very core of electivedemocracy. According to him, the certainty of scope ofcorruption in the governing structure has heightenedopportunism and unscrupulousness among politicalparties, causing them to marry and divorce one another atwill, seek opportunistic alliances and coalitions oftenwithout the popular mandate. Yet they capture and survivein power due to inherent systematic flows. He furtherstated that casteism, corruption and politicisationhave eroded the integrity and efficacy of our civilservice structure also. The manifestos, policies,programmes of the political parties have lostmeaning in the present system of governance dueto lack of accountability.”47. We are thus of the view that interpretation of the AtrocitiesAct should promote constitutional values of fraternity andintegration of the society. This may require check on falseimplications of innocent citizens on caste lines.Issue of anticipatory bail
48. In the light of the above, we first consider the questionwhether there is an absolute bar to the grant of anticipatory bailin which case the contention for revisiting the validity of the saidprovision may need consideration in the light of decisions of thisCourt relied upon by learned amicus.
49. Section 18 of the Atrocities Act containing bar against grantof anticipatory bail is as follows:
“Section 438 of the Code not to apply to personscommitting an offence under the Act. – Nothing inSection 438 of the Code shall apply in relation to anycase involving the arrest of any person on anaccusation of having committed an offence under thisAct.”50. In Balothia (supra), Section 18 was held not to be violativeof Articles 14 and 21 of the Constitution. It was observed thatexclusion of Section 438 Cr.P .C. in connection with offences underthe Act had to be viewed in the context of prevailing socialconditions and the apprehension that perpetrators of suchatrocities are likely to threaten and intimidate the victims andprevent or obstruct them in the prosecution of these offenders, ifthey are granted anticipatory bail. Referring to the Statement ofObjects and Reasons, it was observed that members of SC and STare vulnerable and are denied number of civil rights and they aresubjected to humiliation and harassment. They assert their rightsand demand statutory protection. Vested interests try to cowthem down and terrorise them. There was increase in disturbingtrend of commission of atrocities against members of SC and ST.Thus, the persons who are alleged to have committed suchoffences 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 amicusthat 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 unnecessaryto refer the matter to the larger Bench as the judgment can beclarified in the light of law laid down by this Court. Exclusion ofanticipatory bail has been justified only to protect victims ofperpetrators of crime. It cannot be read as being applicable tothose who are falsely implicated for extraneous reasons and havenot committed the offence on prima facie independent scrutiny.Access to justice being a fundamental right, grain has to beseparated from the chaff, by an independent mechanism. Libertyof one citizen cannot be placed at the whim of another. Law hasto protect the innocent and punish the guilty. Thus considered,exclusion has to be applied to genuine cases and not to falseones. This will help in achieving the object of the law.
52. If the provisions of the Act are compared as against certainother enactments where similar restrictions are put onconsideration of matter for grant of anticipatory bail or grant ofregular bail, an interesting situation emerges. Section 17(4) ofthe T errorist and Disruptive Activities (Prevention) Act, 1985( “TADA”
for short - since repealed) stated “…nothing in Section438 of the Code shall apply in relation to any case involving thearrest of any person on an accusation of having committed anoffence punishable under the provisions of this Act…” . Section17(5) of the TADA Act put further restriction on a person accusedof an offence punishable under the TADA Act being released onregular bail and one of the conditions was: Where the PublicProsecutor opposes the application for grant of bail, the court hadto be satisfied that there were reasonable grounds for believingthat the accused was not guilty of such offence and that he wasnot likely to commit any such offence while on bail. Theprovisions of the Unlawful Activities (Prevention) Act, 1967 (forshort “the UAPA Act” ), namely under Section 43D(4) and 43D(5)are similar to the aforesaid Sections 17(4) and 17(5) of the TADAAct. Similarly the provisions of Maharashtra Control of OrganisedCrime Act, 1999 (for short “MCOC Act” ), namely, Sections 21(3)and 21(4) are also identical in terms. Thus the impact of releaseof a person accused of having committed the concerned offencesunder these special enactments was dealt with by the Legislaturenot only at the stage of consideration of the matter foranticipatory bail but even after the arrest at the stage of grant ofregular bail as well. The provisions of the Narcotic Drugs andPsychotropic Substances Act, 1985 (for short “the NDPS Act) are,however, distinct in that the restriction under Section 37 is at astage where the matter is considered for grant of regular bail. Nosuch restriction is thought of and put in place at the stage ofconsideration of matter for grant of anticipatory bail. On theother hand, the provisions of the Act are diametrically oppositeand the restriction in Section 18 is only at the stage ofconsideration of matter for anticipatory bail and no suchrestriction is available while the matter is to be considered forgrant of regular bail. Theoretically it is possible to say that anapplication under Section 438 of the Code may be rejected by theCourt because of express restrictions in Section 18 of the Act butthe very same court can grant bail under the provisions of Section437 of the Code, immediately after the arrest. There seems to beno logical rationale behind this situation of putting a fetter ongrant of anticipatory bail whereas there is no such prohibition inany way for grant of regular bail. It is, therefore, all the morenecessary and important that the express exclusion under Section18 of the Act is limited to genuine cases and inapplicable whereno prima facie case is made out.
53. We have no quarrel with the proposition laid down in the saidjudgment that persons committing offences under the AtrocitiesAct ought not to be granted anticipatory bail in the same mannerin which the anticipatory bail is granted in other cases punishablewith similar sentence. Still, the question remains whether incases where there is no prima facie case under the Act, bar underSection 18 operates can be considered. We are unable to readthe said judgment as laying down that exclusion is applicable tosuch situations. If a person is able to show that, prima facie, hehas not committed any atrocity against a member of SC and STand that the allegation was mala fide and prima facie false andthat prima facie no case was made out, we do not see anyjustification for applying Section 18 in such cases. Considerationin the mind of this Court in Balothia (supra) is that theperpetrators of atrocities should not be granted anticipatory bailso that they may not terrorise the victims. Consistent with thisview, it can certainly be said that innocent persons against whomthere was no prima facie case or patently false case cannot besubjected to the same treatment as the persons who are primafacie perpetrators of the crime.
54. In view of decisions in Vilas Pandurang Pawar (supra)and Shakuntla Devi (supra), learned ASG has rightly statedthat there is no absolute bar to grant anticipatory bail if no primafacie case is made out inspite of validity of Section 18 of theAtrocities Act being upheld.
55. In Hema Mishra versus State of U.P .53, it has beenexpressly laid down that inspite of the statutory bar against grantof anticipatory bail, a Constitutional Court is not debarred fromexercising its jurisdiction to grant relief. This Court considered theissue of anticipatory bail where such provision does not apply.Reference was made to the view in Lal Kamlendra PratapSingh versus State of Uttar Pradesh and Ors.54to theeffect that interim bail can be granted even in such cases withoutaccused being actually arrested. Reference was also made toKartar Singh versus State of Punjab55to the effect thatjurisdiction 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 ofthe background and its object. Instead of literal interpretation,the court may, in the present context, prefer purposiveinterpretation to achieve the object of law. Doctrine ofproportionality is well known for advancing the object of Articles14 and 21. A procedural penal provision affecting liberty of53 (2014) 4 SCC 453 – paras 21, 34 to 3654 (2009) 4 SCC 43755 (1994) 3 SCC 569 – para 368 (17)citizen must be read consistent with the concept of fairness andreasonableness.
57. A Constitution Bench of this Court in Kedar Nath versusState of Bihar56observed:
58. In the present context, wisdom of legislature in creating anoffence cannot be questioned but individual justice is a judicialfunction depending on facts. As a policy, anticipatory bail may beexcluded but exclusion cannot be intended to apply where apatently malafide version is put forward. Courts have inherentjurisdiction to do justice and this jurisdiction cannot be intendedto be excluded. Thus, exclusion of Court’s jurisdiction is not to beread as absolute.
“26. It is also well settled that in interpreting anenactment the Court should have regard not merelyto the literal meaning of the words used, but alsotake into consideration the antecedent history ofthe legislation, its purpose and the mischief it seeksto suppress [vide (1) Bengal Immunity CompanyLimited v. State of Bihar[1955 2 SCR 603] and (2)R.M.D. Chamarbaugwala v. Union of India[1957 SCR930]. Viewed in that light, we have no hesitation inso construing the provisions of the sectionsimpugned in these cases as to limit their applicationto acts involving intention or tendency to createdisorder, or disturbance of law and order, orincitement to violence.
27. We may also consider the legal position, as itshould emerge, assuming that the main Section124-A is capable of being construed in the literalsense in which the Judicial Committee of the PrivyCouncil has construed it in the cases referred toabove. On that assumption, is it not open to this Court toconstrue the section in such a way as to avoid the allegedunconstitutionality by limiting the application of thesection in the way in which the Federal Court intended toapply it? In our opinion, there are decisions of this Courtwhich amply justify our taking that view of the legalposition. This Court, in the case of R.M.D.Chamarbaugwalla v. Union of India has examined in detailthe several decisions of this Court, as also of the courts inAmerica and Australia. After examining those decisions,this Court came to the conclusion that if the impugnedprovisions of a law come within the constitutional powersof the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view ofthe matter and limit its application accordingly, inpreference to the view which would make itunconstitutional on another view of the interpretation ofthe words in question. In that case, the Court had tochoose between a definition of the expression “PrizeCompetitions as limited to those competitions which wereof a gambling character and those which were not. TheCourt chose the former interpretation which made the restof the provisions of the Act, Prize Competitions Act (42 of1955), with particular reference to Sections 4 and 5 of theAct and Rules 11 and 12 framed thereunder, valid. TheCourt held that the penalty attached only to thosecompetitions which involved the element of gambling andthose competitions in which success depended to asubstantial degree on skill were held to be out of thepurview of the Act. The ratio decidendi in that case, inour opinion, applied to the case in hand insofar aswe propose to limit its operation only to suchactivities as come within the ambit of theobservations of the Federal Court, that is to say,activities involving incitement to violence orintention or tendency to create public disorder orcause disturbance of public peace.”
59. There can be no dispute with the proposition that mereunilateral allegation by any individual belonging to any caste,when such allegation is clearly motivated and false, cannot betreated as enough to deprive a person of his liberty without anindependent scrutiny. Thus, exclusion of provision for anticipatorybail cannot possibly, by any reasonable interpretation, be treatedas applicable when no case is made out or allegations arepatently false or motivated. If this interpretation is not taken, itmay be difficult for public servants to discharge their bona fidefunctions and, in given cases, they can be black mailed with thethreat of a false case being registered under the Atrocities Act,without any protection of law. This cannot be the scenario in acivilized society. Similarly, even a non public servant can be blackmailed to surrender his civil rights. This is not the intention oflaw. Such law cannot stand judicial scrutiny. It will fall foul ofguaranteed fundamental rights of fair and reasonable procedurebeing 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 theexclusion of Section 438 Cr.P .C. applies when a prima facie case ofcommission of offence under the Atrocities Act is made. On theother hand, if it can be shown that the allegations are prima faciemotivated 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 Actexcludes grant of anticipatory bail when on prima facie judicialscrutiny, allegations are found to be not free from doubt. The saidquestion was answered as follows:
“4. Now undoubtedly it is true that the allegedoffence under the Atrocities Act is a very seriousoffence and if indeed the complaint is ultimatelyfound to be truthful and genuine one, there cannotbe any two views about the strictest possible viewtaken in such matter. Not only that but if the complaintis also found to be prima facie dependable one that is tosay, free from doubt, then as a warranted under Section 18of the Atrocities Act, even the anticipatory bail to suchaccused has got to be refused. In fact, the Parliament inits utmost wisdom has rightly evidenced greatconcern and anxiety over the atrocities which aregoing on unabatedly on S.Cs. & S.Ts. by insertingthe provisions under Section 18 of the Atrocities Actdisabling the accused from obtaining theanticipatory bail under Section 438 of the Code. Thisindeed is a welcome step and in accordance with theaxiomatic truth, viz., 'the disease grown desperatelymust be treated desperately else not'. The disease ofcommission of offences by way of atrocities against themembers of S.Cs. and S.T s. are unabatedly going on sincelast hundreds of years and in the recent past have becomealarmingly increasing and has become so rampant, breathtaking and has reached such a desperate pass that itindeed needed a very stringent and desperate legislationwhich could help save the situation by effectively providingthe legal protection to such cursed, crushed anddowntrodden members of S.Cs. & S.T s. communities. Undersuch circumstances, it is equally the paramount duty ofevery Court to see that it responds to legislative concernand call and ensure effective implementation of theAtrocities Act, by seeing that the provisions enshrined inthe said Act are duly complied with. But then, whataccording to this Court is the most welcome step byway of collective wisdom of the Parliament inushering social beneficial legislation cannot bepermitted to be abused and converted into aninstrument to blackmail to wreak some personalvengeance for settling and scoring personalvendetta or by way of some counter-blasts againstopponents some public servants, as prima facieappears to have been done in the present case. Thebasic questions in such circumstances therefore are-Whether a torch which is lighted to dispel thedarkness can it be permitted to set on fire theinnocent surroundings? Whether a knife aninstrument which is meant for saving human life byusing the same in the course of operation by asurgeon, can it be permitted to be used in takingthe life of some innocent? The very same fundamentalquestion arises in the facts and circumstances of this casealso, viz., 'whether any statute like the present AtrocitiesAct, especially enacted for the purposes of protectingweaker sections of the society hailing from S.C. & S.T.communities can be permitted to be abused byconveniently converting the same into a weapon ofwrecking personal vengeance on the opponents?' Theanswer to this question is undoubtedly andobviously 'No'. Under such circumstances, if theCourts are to apply such provision of Section 18 ofthe Atrocities Act quite mechanically and blindlymerely guided by some general and popularprejudices based on some words and trickyaccusations in the complaint on mere assumptionswithout intelligently scrutinising and testing theprobabilities, truthfulness, genuineness andotherwise dependability of the accusations in thecomplaint etc., then it would be simply unwittinglyand credulously playing in the hands of somescheming unscrupulous complainant in denying thejustice. Virtually, it would be tentamount to abdicatingand relegating its judicial duty, fanction of doing justice insuch matters in favour and hands of such unscrupulouscomplainant by making him a Judge in his own cause. Thisis simply unthinkable and therefore impermissible.Whether the provisions of any particular Act and forthat purpose the rules made thereunder areapplicable to the facts of a particular case or not, isalways and unquestionably a matter which liesstrictly and exclusively within the domain of 'judicialconsideration-discretion' and therefore neither mereallegations made in the complainant by themselvesnor bare denials by the accused can eitherautomatically vest or divest the Court fromdischarging its ultimate judicial function-duty toclosely scrutinise and test the prima faciedependability of the allegations made in thecomplaint and reach its own decision.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 Actto be valid, if the Court, prima-facie, found the story ofcomplainant to be doubtful, the accused could not be allowed tobe arrested. Doing so would be unjudicial. It was observed;-
5. Now reverting to the contents of the complaint andattending circumstances high lighted by Mr. Pardiwala, thelearned Advocate for the petitioner-accused, the sameprima facie clearly demonstrates that at this stage thestory revealed by the complainant docs not appear to befree from doubt. If that is so, very applicability of theAtrocities Act is rendered doubtful. If that is the situation,then to refuse the anticipatory bail on mere accusationsand assumptions that the petitioner-accused hascommitted an offence under the Atrocities Act would beabsolutely illegal, unjudicious, unjust and ultimately atravesty of justice. No Court can ever embark upon suchhazards of refusing anticipatory bail on mere doubtfulaccusations and assumptions that Atrocities Act isapplicable. No Court could and should be permitted to bo'spoon-fed' by the complainant whatever he wants to feedand swallow whatever he wants the Court to gulp down toattain 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 caseswhere the anticipatory bail must be refused, but itdoes not and it certainly cannot whisk away theright of any Court to have a prima facie judicialscrutiny of the allegations made in the complaint.Nor can it under its hunch permit provisions of lawbeing abused to suit the mala fide motivated endsof some unscrupulous complainant. In this case alsoif indeed this Court been satisfied with the storyrevealed by the complainant as truthful andgenuine, then anticipatory bail would have beensurely rejected right forth as a matter of course, butsince the submissions of Mr. Pardiwala haveconsiderable force, this Court has no alternative butto accept the same in the larger interests of justiceto see that merely on the count of the firsthandprejudice attempted to be caused by allegations inthe complaint, the petitioner-accused is not deniedhis precious right of the anticipatory bail.
6. In view of the aforesaid discussion, though in away the learned A.P .P . is absolutely right when hesubmitted that no anticipatory bail can be grantedto the petitioner-accused because of Section 18 ofthe Atrocities Act, in the opinion of this Court, hissubmission fails because at this stage it is toodifficult to rule out the probability of theaccusations levelled by the complainant against thepetitioner-accused having committed an offenceunder the Atrocities Act being false, vexatious andby way of counterblast as stemming from theulterior motive to humiliate, disgrace anddemoralise the petitioner-accused who is a publicservant. When that is the result and position, thereis no question of bypassing of Section 18 of theAtrocities Act arises as apprehended by the learnedA.P .P . Taking into consideration the facts andcircumstances of this particular case, and in view ofthe aforesaid discussion, this Misc. CriminalApplication for anticipatory bail deserves to beallowed and is allowed accordingly”
“8. To deal first with the preliminary objection raisedby the learned A.P .P . Mr. Desai, it may be stated thatthe Supreme Court’s decision rendered in the case ofState of M.P . & Anr. v. Ramkishan Balothia (supra)stands on altogether quite different footing wherethe vires of Section 18 of the Act came to bedecided. The Apex Court has ultimately held thatSection 18 of the Act was not ultra vires. This Courtis indeed in respectful agreement with the aforesaiddecision of the Supreme Court…63. The above judgments correctly lays down the scope ofexclusion as well as permissibility of anticipatory bail in casesunder the Atrocities Act and are consistent with the view we take.Section 18 of the Atrocities Act has, thus, to be read andinterpreted in this manner. At this stage, we may note that wehave seen a contra view of the Division Bench of the said HighCourt in Pravinchandra N Solanki and Ors. versus State ofGujarat57. We are unable to accept the said view for the reasonsalready given and overrule the same.
.. ….. ….……. … … …
But then having closely examined the complaintmore particularly in the context and light of thebackdrop of the peculiar facts situation highlightedby the petitioner leading ultimately to filing of thecomplaint, this Court prime facie at the very outsetis at some doubt about the complainant's story andyet if it readily, mechanically like a gullible childaccepts the allegations made in the complaint at itsface value, it would be surely blundering andwandering away from the path of bail-justice, makingitself readily available in the hands of the schemingcomplainant who on mere asking will get arrestedaccused on some false allegations of havingcommitted non-bailable offence, under the AtrocityAct, meaning thereby the Court rendering itself quitedeaf, dumb and blind mortgaging its commonsense,ordinary prudence with no perception for justice,denying the rightful protection to the accusedbecoming ready pawn pliable in the hands ofsometime scheming, unscrupulous complainants !!!This sort of a surrender to prima facie doubtfulallegation in the complaint is not at all a judicialapproach, if not unjudicial !!...”
64. Concept of “Due process” and principles of 8thAmendmentof the U.S. Constitution have been read by this Court as part ofguarantee under Article 21 of the Constitution. In State ofPunjab versus Dalbir Singh58, it was observed :
65. Presumption of innocence is a human right. No doubt,placing of burden of proof on accused in certain circumstancesmay be permissible but there cannot be presumption of guilt so asto deprive a person of his liberty without an opportunity before anindependent forum or Court. In Noor Aga versus State ofPunjab59, it was observed:
“80. It has already been noted hereinabove that in ourConstitution the concept of “due process” wasincorporated in view of the judgment of this Court inManeka Gandhi[(1978) 1 SCC 248] The principles of theEighth Amendment have also been incorporated in ourlaws. This has been acknowledged by the ConstitutionBench of this Court in Sunil Batra [(1978) 4 SCC 494] InSunil 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 orthe Eighth Amendment; but, in this branch of law, afterCooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC248] and Maneka Gandhi the consequence is the same.For what is punitively outrageous, scandalisingly unusualor cruel and rehabilitatively counterproductive, isunarguably unreasonable and arbitrary and is shot downby Articles 14 and 19 and if inflicted with proceduralunfairness, falls foul of Article 21.”
xxx xxxx xxxx
84. The principle of “due process” is an emanation fromthe Magna Carta doctrine. This was accepted in Americanjurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p.90 : US p. 142). Again this was acknowledged in PlannedParenthood of Southeastern Pennsylvania v. Casey [120 LEd 2d 674] wherein the American Supreme Courtobserved as follows:
“The guarantees of due process, thoughhaving their roots in Magna Carta’s ‘perlegem terrae’ and considered as proceduralsafeguards ‘against executive usurpationand tyranny’, have in this country ‘becomebulwarks also against arbitrary legislation’.”
85. All these concepts of “due process” and the conceptof a just, fair and reasonable law have been read by thisCourt into the guarantee under Articles 14 and 21 of theConstitution….”
“33. Presumption of innocence is a human right asenvisaged under Article 14(2) of the InternationalCovenant on Civil and Political Rights. It, however, cannotper se be equated with the fundamental right and libertyadumbrated in Article 21 of the Constitution of India. It,having regard to the extent thereof, would not militateagainst other statutory provisions (which, of course, mustbe read in the light of the constitutional guarantees asadumbrated in Articles 20 and 21 of the Constitution ofIndia).xxxx xxxx xxxxIn view of the above, an accused is certainly entitled to showto the Court, if he apprehends arrest, that case of the complainantwas motivated. If it can be so shown there is no reason that theCourt is not able to protect liberty of such a person. There cannotbe any mandate under the law for arrest of an innocent. The lawhas to be interpreted accordingly.
35. A right to be presumed innocent, subject to theestablishment of certain foundational facts and burden ofproof, to a certain extent, can be placed on an accused. Itmust be construed having regard to the otherinternational conventions and having regard to the factthat it has been held to be constitutional. Thus, a statutemay be constitutional but a prosecution thereunder maynot be held to be one. Indisputably, civil liberties andrights of citizens must be upheld.Xxxx xxxx xxxx
43. The issue of reverse burden vis-à-vis the humanrights regime must also be noticed. The approach of thecommon law is that it is the duty of the prosecution toprove a person guilty. Indisputably, this common lawprinciple was subject to parliamentary legislation to thecontrary. The concern now shown worldwide is thatParliaments had frequently been making inroads on thebasic presumption of innocence. Unfortunately, unlikeother countries no systematic study has been made inIndia as to how many offences are triable in the courtwhere the legal burden is on the accused. In the UnitedKingdom it is stated that about 40% of the offencestriable in the Crown Court appear to violate thepresumption. (See “The Presumption of Innocence inEnglish Criminal Law” 1996, CRIM. L. REV. 306, at p.309.)
44. In Article 11(1) of the Universal Declaration of HumanRights (1948) it is stated: “Everyone charged with a penal offence has the right tobe presumed innocent until proved guilty according tolaw….”
Similar provisions have been made in Article 6.2 of theEuropean Convention for the Protection of Human Rightsand Fundamental Freedoms (1950) and Article 14.2 of theInternational 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 thepresumption of innocence in the following terms:
“There is a paradox at the heart of all criminal procedurein that the more serious the crime and the greater thepublic interest in securing convictions of the guilty, themore important do constitutional protections of theaccused become. The starting point of any balancingenquiry where constitutional rights are concerned mustbe that the public interest in ensuring that innocentpeople are not convicted and subjected to ignominy andheavy sentences massively outweighs the public interestin ensuring that a particular criminal is brought to book.… Hence the presumption of innocence, which serves notonly to protect a particular individual on trial, but tomaintain public confidence in the enduring integrity andsecurity of the legal system. Reference to the prevalenceand severity of a certain crime therefore does not addanything new or special to the balancing exercise. Theperniciousness of the offence is one of the givens,against which the presumption of innocence is pittedfrom the beginning, not a new element to be put into thescales as part of a justificatory balancing exercise. If thiswere not so, the ubiquity and ugliness argument could beused in relation to murder, rape, car-jacking,housebreaking, drug-smuggling, corruption … the list isunfortunately almost endless, and nothing would be leftof the presumption of innocence, save, perhaps, for itsrelic status as a doughty defender of rights in the mosttrivial of cases.”
66. We have already noted the working of the Act in the lastthree decades. It has been judicially acknowledged that there areinstances of abuse of the Act by vested interests against politicalopponents in Panchayat, Municipal or other elections, to settleprivate civil disputes arising out of property, monetary disputes,employment disputes and seniority disputes60. It may be noticedthat by way of rampant misuse complaints are ‘largely being filedparticularly against Public Servants/quasi judicial/judicial officerswith oblique motive for satisfaction of vested interests’61.
67. Innocent citizens are termed as accused, which is notintended by the legislature. The legislature never intended to usethe Atrocities Act as an instrument to blackmail or to wreak personal vengeance. The Act is also not intended to deter publicservants from performing their bona fide duties. Thus, unlessexclusion of anticipatory bail is limited to genuine cases andinapplicable to cases where there is no prima facie case wasmade out, there will be no protection available to innocentcitizens. Thus, limiting the exclusion of anticipatory bail in suchcases is essential for protection of fundamental right of life andliberty under Article 21 of the Constitution.
68. Accordingly, we have no hesitation in holding that exclusionof provision for anticipatory bail will not apply when no primafacie case is made out or the case is patently false or mala fide.This may have to be determined by the Court concerned in factsand circumstances of each case in exercise of its judicialdiscretion. In doing so, we are reiterating a well establishedprinciple of law that protection of innocent against abuse of law ispart of inherent jurisdiction of the Court being part of access tojustice and protection of liberty against any oppressive actionsuch as mala fide arrest. In doing so, we are not diluting theefficacy of Section 18 in deserving cases where Court finds a caseto be prima facie genuine warranting custodial interrogation andpre-trial arrest and detention.
69. In Lal Kamlendra Pratap(supra), this Court held that evenif there is no provision for anticipatory bail, the Court can grantinterim bail in suitable cases. It was observed :
“6. Learned counsel for the appellant apprehends that theappellant will be arrested as there is no provision foranticipatory bail in the State of U.P . He placed reliance on adecision of the Allahabad High Court in Amarawati v. Stateof U.P . [2005 Crl LJ 755 (All)] in which a seven-Judge FullBench of the Allahabad High Court held that the court, if itdeems fit in the facts and circumstances of the case, maygrant interim bail pending final disposal of the bailapplication. The Full Bench also observed that arrest is nota must whenever an FIR of a cognizable offence is lodged.The Full Bench placed reliance on the decision of this Courtin Joginder Kumar v. State of U.P .[(1992) 4 SCC 260]70. In Vikas Pandurang case (supra), it was observed :
7. We fully agree with the view of the High Court inAmarawati case and we direct that the said decision befollowed by all courts in U.P . in letter and spirit, particularlysince the provision for anticipatory bail does not exist in U.P.
8. In appropriate cases interim bail should be grantedpending disposal of the final bail application, since arrestand detention of a person can cause irreparable loss to aperson’s reputation, as held by this Court in Joginder Kumarcase. Also, arrest is not a must in all cases of cognizableoffences, and in deciding whether to arrest or not the policeofficer must be guided and act according to the principleslaid down in Joginder Kumar case.”
“10. …..When an offence is registered against a person under theprovisions of the SC/ST Act, no court shall entertain an applicationfor anticipatory bail, unless it prima facie finds that such anoffence is not made out.”71. Law laid down by this Court in Joginder Kumar (supra),Arnesh Kumar (supra), Rini Johar (supra), SiddharamSatlingappa (supra) to check uncalled for arrest cannot beignored 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 Maharashtra62while considering the validity of exclusion of bail by an appellatecourt in NDPS cases, this Court noted the submission that thelegislature could not take away judicial powers by statutoryprohibition against suspending the sentence during the pendencyof the appeal. This is an essential judicial function. The relevantobservations are:
“16. Learned counsel appearing for the parties were moreconcerned with the adverse effect of the section on thepowers of the judiciary. Impliedly conceding that thesection was valid so far as it pertained to the appropriateGovernment, it was argued that the legislature is notcompetent to take away the judicial powers of the court bystatutory prohibition as is shown to have been done videthe impugned section. Awarding sentence, upon conviction, is concededly a judicial function to bedischarged by the courts of law established in the country.It is always a matter of judicial discretion, however, subjectto any mandatory minimum sentence prescribed by thelaw. The award of sentence by a criminal court wherevermade subject to the right of appeal cannot be interfered orintermeddled with in a way which amounts to not onlyinterference but actually taking away the power of judicialreview. Awarding the sentence and consideration of itslegality or adequacy in appeal is essentially a judicialfunction embracing within its ambit the power to suspendthe sentence under the peculiar circumstances of eachcase, pending the disposal of the appeal.”73. On the above reasoning, it is difficult to hold that thelegislature wanted exclusion of judicial function of going intocorrectness or otherwise of the allegation in a criminal casebefore liberty of a person is taken away. The legislature could nothave intended that any unilateral version should be treated asconclusive and the person making such allegation should be thesole judge of its correctness to the exclusion of judicial function ofcourts of assessing the truth or otherwise of the rival contentionsbefore 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 caseis shown to bona fide and that prima facie it falls under theAtrocities Act and not otherwise. Section 18 does not apply wherethere is no prima facie case or to cases of patent false implicationor when the allegation is motivated for extraneous reasons. Weapprove the view of the Gujarat High Court in Pankaj D Suthar(supra) and Dr. N.T. Desai (supra). We clarify the Judgments inBalothia (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 regardto anticipatory bail. The under privileged need to be protectedagainst any atrocities to give effect to the Constitutional ideals.The Atrocities Act has been enacted with this objective. At thesame time, the said Act cannot be converted into a charter forexploitation or oppression by any unscrupulous person or bypolice for extraneous reasons against other citizens as has beenfound on several occasions in decisions referred to above. Anyharassment of an innocent citizen, irrespective of caste orreligion, is against the guarantee of the Constitution. This Courtmust enforce such a guarantee. Law should not result in castehatred. The preamble to the Constitution, which is the guidingstar for interpretation, incorporates the values of liberty, equalityand fraternity.
76. We are satisfied, in the light of statistics already referred aswell as cited decisions and observations of the StandingCommittee ofParliament that there is need to safeguard innocent citizensagainst false implication and unnecessary arrest for which there isno sanction under the law which is against the constitutionalguarantee and law of arrest laid down by this Court.
77. We are conscious that normal rule is to register FIR if anyinformation discloses commission of a cognizable offence. Thereare however, exceptions to this rule. In Lalita Kumari versusState of U.P .63, it was observed :
“115. Although, we, in unequivocal terms, hold thatSection 154 of the Code postulates the mandatoryregistration of FIRs on receipt of all cognizable offences,yet, there may be instances where preliminary inquiry maybe required owing to the change in genesis and novelty ofcrimes with the passage of time. One such instance is inthe case of allegations relating to medical negligence onthe part of doctors. It will be unfair and inequitable toprosecute a medical professional only on the basis of theallegations in the complaint78. The above view is consistent with earlier judgments inState of U.P . versus Bhagwant Kishore Joshi64and P .Sirajuddin versus State of Madras65. In Bhagwant Kishoreit was observed:
xxx xxxx xxxx
117. In the context of offences relating to corruption, thisCourt in P. Sirajuddin [(1970) 1 SCC 595] expressed theneed for a preliminary inquiry before proceeding againstpublic servants.
xxxx xxxx xxxx
120.6. As to what type and in which cases preliminaryinquiry is to be conducted will depend on the facts andcircumstances of each case. The category of cases inwhich 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 ininitiating criminal prosecution, for example, over 3 months’delay in reporting the matter without satisfactorilyexplaining the reasons for delay.The aforesaid are only illustrations and notexhaustive of all conditions which may warrantpreliminary inquiry.
120.7. While ensuring and protecting the rights of theaccused and the complainant, a preliminary inquiry shouldbe made time-bound and in any case it should not exceed7 days. The fact of such delay and the causes of it mustbe reflected in the General Diary entry.”
“… … …In the absence of any prohibition in theCode, express or implied, I am of opinion that itis open to a Police Officer to make preliminaryenquiries before registering an offence andmaking a full scale investigation into it. Nodoubt, Section 5A of the Prevention of CorruptionAct was enacted for preventing harassment to aGovernment servant and with this object in viewinvestigation, except with the previouspermission of a Magistrate, is not permitted tobe made by an officer below the rank of aDeputy Superintendent of Police. Wherehowever, a Police Officer makes somepreliminary enquiries, does not arrest or evenquestion an accused or question any witnessesbut merely makes a few discreet enquiries orlooks at some documents without making anynotes, it is difficult to visualize how any possibleharassment or even embarrassment would resulttherefrom to the suspect or the accused person.… …”In Sirajuddin (supra) it was observed:
“17. … …Before a public servant, whatever be hisstatus, is publicly charged with acts of dishonestywhich amount to serious misdemeanour ormisconduct of the type alleged in this case and afirst information is lodged against him, there must besome suitable preliminary enquiry into theallegations by a responsible officer. The lodging ofsuch a report against a person, specially one wholike the appellant occupied the top position in adepartment, even if baseless, would do incalculableharm not only to the officer in particular but to thedepartment he belonged to, in general. If theGovernment had set up a Vigilance and Anti-Corruption Department as was done in the State ofMadras and the said department was entrusted withenquiries of this kind, no exception can of taken toan enquiry by officers of this department but anysuch enquiry must proceed in a fair and reasonablemanner. … …”79. We are of the view that cases under the Atrocities Act alsofall in exceptional category where preliminary inquiry must beheld. Such inquiry must be time-bound and should not exceedseven 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 theaccused immediately on registration of FIR is not at allmandatory. In fact, registration of FIR and arrest of anaccused person are two entirely different concepts underthe law, and there are several safeguards available againstarrest. Moreover, it is also pertinent to mention that anaccused person also has a right to apply for “anticipatorybail” under the provisions of Section 438 of the Code if theconditions mentioned therein are satisfied. Thus, inappropriate cases, he can avoid the arrest under thatprovision by obtaining an order from the court.”81. Accordingly, we direct that in absence of any otherindependent offence calling for arrest, in respect of offencesunder the Atrocities Act, no arrest may be effected, if an accusedperson is a public servant, without written permission of theappointing authority and if such a person is not a public servant,without written permission of the Senior Superintendent of Policeof the District. Such permissions must be granted for recordedreasons which must be served on the person to be arrested and tothe concerned court. As and when a person arrested is producedbefore the Magistrate, the Magistrate must apply his mind to thereasons recorded and further detention should be allowed only ifthe reasons recorded are found to be valid. T o avoid falseimplication, before FIR is registered, preliminary enquiry may bemade whether the case falls in the parameters of the AtrocitiesAct and is not frivolous or motivated.Consideration of present case
82. As far as the present case is concerned, we find merit in thesubmissions of learned amicus that the proceedings against theappellant are liable to be quashed.Conclusions
83. Our conclusions are as follows:
i) Proceedings in the present case are clear abuse ofprocess of court and are quashed.
ii) There is no absolute bar against grant ofanticipatory bail in cases under the Atrocities Act ifno prima facie case is made out or where onjudicial scrutiny the complaint is found to be primafacie mala fide. We approve the view taken andapproach of the Gujarat High Court in Pankaj DSuthar (supra) and Dr. N.T. Desai (supra) andclarify the judgments of this Court in Balothia(supra) and Manju Devi ;
iii) In view of acknowledged abuse of law of arrest incases under the Atrocities Act, arrest of a publicservant can only be after approval of theappointing authority and of a non-public servantafter approval by the S.S.P . which may be grantedin appropriate cases if considered necessary forreasons recorded. Such reasons must bescrutinized by the Magistrate for permitting furtherdetention.
iv) T o avoid false implication of an innocent, apreliminary enquiry may be conducted by the DSPconcerned to find out whether the allegationsmake out a case under the Atrocities Act and thatthe allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will beactionable by way of disciplinary action as well ascontempt.
The above directions are prospective.
84. Before parting with the judgment, we place on record oursincere appreciation for the invaluable assistance rendered bylearned Amicus and also assistance rendered by learned counselwho have appeared in this case.
85. The appeal is accordingly allowed in the above terms.
For the Petitioner M. Y. DESHMUKH
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak