SC and ST Act- arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. i) Proceedings in the present case are clear abuse of process of court and are quashed. ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); Iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv].To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.-Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.416 OF 2018

(Arising out of Special Leave Petition (Crl.)No.5661 of 2017)

DR. SUBHASH KASHINATH MAHAJAN …Appellant

VERSUS

THE STATE OF MAHARASHTRA AND ANR. …Respondents

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against the order dated 5th

May, 2017 of the High Court of Judicature at Bombay in Criminal

Application No.1015 of 2016.

2. On 20th November, 2017 the following order was passed by

this Court:-

“Heard learned counsel for the parties.

Certain adverse remarks were recorded against respondent

no. 2-Bhaskar Karbhari Gaidwad by the Principal and Head

of the Department of the College of Pharmacy where

respondent no. 2 was employed. Respondent No. 2 sought

1

sanction for his prosecution under the provisions of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 and for certain other connected

offences. The said matter was dealt with by the petitioner

and sanction was declined. This led to another complaint

by the respondent no. 2 against the petitioner under the

said provisions. The quashing of the said complaint has

been declined by the High Court.

The question which has arisen in the course of

consideration of this matter is whether any unilateral

allegation of mala fide can be ground to prosecute officers

who dealt with the matter in official capacity and if such

allegation is falsely made what is protection available

against such abuse.

Needless to say that if the allegation is to be acted upon,

the proceedings can result in arrest or prosecution of the

person and have serious consequences on his right to

liberty even on a false complaint which may not be

intended by law meant for protection of a bona fide victim.

The question is whether this will be just and fair procedure

under Article 21 of the Constitution of India or there can be

procedural safeguards so that provisions of Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 are not abused for extraneous considerations.

Issue notice returnable on 10

th

January, 2018.

In the meanwhile, there shall be stay of further

proceedings.

Issue notice to Attorney General of India also as the issue

involves interpretation of a central statute.

Mr. Amrendra Sharan, learned senior counsel is requested

to assist the Court as amicus. Mr. Sharan will be at liberty

to have assistance of Mr. Amit Anand Tiwari, Advocate. …

…”

3. Though certain facts are stated while framing the question

already noted, some more facts may be noted. The appellant

2

herein is the original accused in the case registered at City Police

Station, Karad for the offences punishable under Sections 3(1)(ix),

3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as

also Sections 182, 192, 193, 203 and 219 read with 34 of the

Indian Penal Code, 1860 (IPC). He was serving as Director of

Technical Education in the State of Maharashtra at the relevant

time.

4. The second respondent – the complainant is an employee of

the department. He was earlier employed as a Store Keeper in

the Government College of Pharmacy, Karad. He was later posted

at Government Distance Education Institute, Pune. Dr. Satish

Bhise and Dr. Kishor Burade, who were his seniors but nonscheduled

caste, made adverse entry in his annual confidential

report to the effect that his integrity and character was not good.

He lodged FIR with Karad Police Station against the said two

officers under the Atrocities Act on 4th January, 2006 on that

ground. The concerned Investigating Officer applied for sanction

under Section 197 Cr.P.C. against them to the Director of Technical

3

Education on 21st December, 2010. The sanction was refused by

the appellant on 20th January, 2011. Because of this, ‘C’ Summary

Report was filed against Bhise and Burade which was not

accepted by the court. He then lodged the present FIR against

the appellant. According to the complainant, the Director of

Technical Education was not competent to grant/refuse sanction

as the above two persons are Class-I officers and only the State

Government could grant sanction. Thus, according to him, the

appellant committed the offences alleged in the FIR dated 28th

March, 2016 by illegally dealing with the matter of sanction.

5. The complaint is fully extracted below:

“In the year 2009 I was working as store keeper in the

Govt. Pharmacy College Karad, at that time I have

registered complaint to Karad City Police Station Cr.

NO. 3122/09 u/s 3(1)9, 3(2)(7)6 of S.C. & S.T.

(Preention of Atrocities) Act and the investigation was

done by Shri Bharat Tangade, then D.Y.S.P. Karad

division Karad in the investigation 1) Satish

Balkrushna Bhise, then Principal Pharmacy College

Karad, 2) Kishor Balkrishna Burade, then Professor,

Pharmacy College Karad has been realized as

accused in the present crime. Investigation officer

collect sufficient evidence against both the accused,

but both the accused are from Govt. Technical

Education department Class 1 Public Servant, so

before filing charge sheet against them he wrote the

letter to the senior office of the accused u/s 197 of

Cr.P.C. to take the permission at that time Mr.

4

Subhash Kashinath Mahajan was working as incharge

director of the office. Today also he is working as

same post. Mr. Mahajan does not belongs to S.C. &

S.T. but he knew that I belongs to S.C. and S.T.

In fact both the accused involved in crime No.

3122/09 are working on class 1 post and to file a

charge sheet against them the permission has to be

taken according to Cr.P.C. Section 197. This fact

known to Shri Mahajan and Mr. Mahajan knew that

this office did not have such right to give permission.

So Mr. Mahajan send letter to Mumbai Office. Infact

to give the required permission or to refuse the

permission is not comes under the jurisdiction of

incharge direction, Technical Education Mumbai. But,

Mr. Mahajan misused his powers so that, accused

may be benefited, he took the decision and refused

the permission to file the charge sheet against the

accused. So that, investigation officer Shri Bharat

Tangade fails to submit the charge sheet against the

both the accused, but he complain to submit ‘C’

summary report.”

6. The appellant, after he was granted anticipatory bail, applied

to the High Court under Section 482 Cr.P.C. for quashing the

proceedings on the ground that he had merely passed a bonafide

administrative order in his official capacity. His action in doing so

cannot amount to an offence, even if the order was erroneous.

The High Court rejected the petition.

7. Dealing with the contention that if such cases are not

quashed, recording of genuine adverse remarks against an

5

employee who is a member of SC/ST or passing a legitimate

administrative order in discharge of official duties will become

difficult and jeopardise the administration, the High Court

observed that no public servant or reviewing authority need to

apprehend any action by way of false or frivolous prosecution but

the penal provisions of the Atrocities Act could not be faulted

merely because of possibility of abuse. It was observed that in

the facts and circumstances, inherent power to quash could not

be exercised as it may send a wrong signal to the downtrodden

and backward sections of the society.

8. We have heard Shri Amrendra Sharan, learned senior

counsel, appearing as amicus, Shri Maninder Singh, learned

Additional Solicitor General, appearing for the Union of India, Shri

C.U. Singh, learned senior counsel and the other learned counsel

appearing for the intervenors and learned counsel for the parties

and perused the record.

9. We may refer to the submissions put forward before the

Court:

6

Submissions of learned Amicus

10. Learned amicus submitted that in facts of the present case,

no offence was made out under Sections 3(1)(ix), 3(2)(vi) and 3(2)

(vii) of the Atrocities Act and Sections 182, 192, 193, 203 and 219

of the Indian Penal Code and, thus, the High Court ought to have

quashed the proceedings. He submitted the following table to

explain his point:

Provisions of the SC/ST Act

invoked in this case

Applicability of the provisions in

the facts of the case

3. Punishment for offences atrocities.

– 3 [(1) Whoever, not being a

member of a Scheduled Caste or a

Scheduled Tribe, –

(ix): gives any false or frivolous

information to any public servant and

thereby causes such public servant to

use his lawful power to the injury or

annoyance of a member of a

Scheduled Caste or a Scheduled

Tribe;

The provision mandates a “false and

frivolous information given by the

public servant”, however in the

present case, the Petitioner has

denied sanction for prosecution which

clearly does not amount to false or

frivolous information. Thus, a case

under Section 3(1)(ix) of the SC/ST

Act is not made out.

3(2)(vi): knowingly or having reason

to believe that an offence has been

committed under this Chapter,

causes any evidence of the

commission of that offence to

disappear with the intention of

screening the offender from legal

punishment, or with that intention

gives any information respecting the

offence which he knows or believes to

be false, shall be punishable with the

punishment provided for that offence;

Section 3(2)(vi) requires causing of

disappearance of evidence with the

intention of screening the offender

from legal punishment, however, in

the present case, there is no

allegation that the petitioner has

caused disappearance of any

evidence. Therefore the ingredients

of Sections 3(2)(vi) is not made out.

(vii) being a public servant, commits

any offence under this section, shall

be punishable with imprisonment for

Since no offence under section 3 of

the SCST is made out this section

cannot be attracted.

7

a term which shall not be less than

one year but which may extend to

the punishment provided for that

offence.

Provisions of IPC alleged Applicability of the provisions in

the facts of instant case

182. False information, with

intent to cause public servant to

use his lawful power to the injury

of another person. – Whoever gives

to any public servant any information

which he knows or believes to be

false, intending thereby to cause, or

knowing it to be likely that he will

thereby cause, such public servant –

(a) to do or omit anything which such

public servant ought not to do or omit

if the true state of facts respecting

which such information is given were

known by him, or

(b) to use the lawful power of such

public servant to the injury or

annoyance of any person, shall be

punished with imprisonment of either

description for a term which may

extend to six months, or with fine

which may extend to one thousand

rupees, or with both.

A false information is an information

which has been given deliberately

with an intention to deceive.

However, in this case denial of

sanction for prosecution cannot be

construed as a false information in

any way. It is an order of

administrative authority. Therefore

no case is made out under Section

182 of the code.

192. Fabricating false evidence. –

whoever causes any circumstance to

exist or *[makes any false entry in

any book or record, or electronic

record or makes any document or

electronic record containing a false

statement, intending that such

circumstance, false entry or false

statement may appear in evidence in

a judicial proceeding, or in a

proceeding taken by law before a

public servant as such, or before an

arbitrator, and that such

circumstance, false entry or false

The ingredients of Section 192 IPC is

not made out therefore this section

will not apply in the present case. It

was not a judicial proceeding and the

petitioner has neither fabricated false

evidence nor made any false entry in

any book, record or electronic data.

Mere exercising of administrative

power cannot be construed as

fabricating false evidence.

8

statement, so appearing in evidence,

may cause any person who in such

proceeding is to form an opinion upon

the evidence, to entertain an

erroneous opinion touching any point

material to the result of such

proceeding, is said “to fabricate false

evidence”.

193. Punishment for false

evidence. – Whoever intentionally

gives false evidence in any stage of a

judicial proceeding, or fabricates false

evidence for the purpose of being

used in any stage of a judicial

proceeding, shall be punished with

imprisonment of either description for

a term which may extend to seven

years, an shall also be liable to fine,

and whoever intentionally gives or

fabricates false evidence in any other

case, shall be punished with

imprisonment of either description for

a term which may extend to three

years, and shall also be liable.

Since there was no ‘false evidence’,

therefore the possibility of

punishment accruing to false

evidence is ruled out.

203. Giving false information

respecting an offence committed.

– Whoever knowing or having reason

to believe that an offence has been

committed, gives any information

respecting that offence which he

knows or believes to be false, shall be

punished with imprisonment of either

description for a term which may

extend to two years, or with fine, or

with both.

For the reasons already stated

hereinabove, the present case does

not meet the ingredients of this

section, therefore is precluded from

being prosecuted here. A mere

opinion of a senior officer in an ACR

does not amount to giving false

information.

219. Public servant in judicial

proceeding corruptly making

report, etc., contrary to law. –

Whoever, being a public servant,

corruptly or maliciously makes or

pronounces in any stage of a judicial

proceeding, any report, order verdict,

or decision which he knows to be

contrary to law, shall be punished

with imprisonment of either

description for a term which may

The denial of sanction to prosecute

the two government servants against

whom the Complainant/ Respondent

no. 2 had originally filed an FIR

cannot be construed as making

corrupt report therefore the case of

the petitioner does not fall within the

ambit of this provision.

9

extend to seven years, or with fine, or

with both.

11. It was submitted by learned amicus that FIR was lodged after

five years of the order passed by the appellant. The order was

passed on 20th January, 2011 while the FIR was lodged on 28th

March, 2016 which further strengthened the case for quashing in

addition to the facts and legal contentions noted in the previous

para. Moreover, in absence of any allegation of malafides, even if

order passed by the appellant was erroneous proceedings against

him are not called for.

12. Learned amicus submitted that under the scheme of the

Atrocities Act, several offences may solely depend upon the

version of the complainant which may not be found to be true.

There may not be any other tangible material. One sided version,

before trial, cannot displace the presumption of innocence. Such

version may at times be self serving and for extraneous reason.

Jeopardising liberty of a person on an untried unilateral version,

without any verification or tangible material, is against the

fundamental rights guaranteed under the Constitution. Before

10

liberty of a person is taken away, there has to be fair, reasonable

and just procedure. Referring to Section 41(1)(b) Cr.P.C. it was

submitted that arrest could be effected only if there was ‘credible’

information and only if the police officer had ‘reason to believe’

that the offence had been committed and that such arrest was

necessary. Thus, the power of arrest should be exercised only

after complying with the safeguards intended under Sections 41

and 41A Cr.P.C. It was submitted that the expression ‘reason to

believe’ in Section 41 Cr.P.C. had to be read in the light of Section

26 IPC and judgments interpreting the said expression. The said

expression was not at par with suspicion. Reference has been

made in this regard to Joti Prasad versus State of Haryana

1

,

Badan Singh @ Baddo versus State of U.P. & Ors.

2

, Adri

Dharan Das versus State of West Bengal

3

, Tata Chemicals

Ltd. versus Commissioner of Customs

4 and Ganga Saran &

Sons Pvt. Ltd. versus Income Tax Officer & Ors.

5

In the

present context, to balance the right of liberty of the accused

guaranteed under Article 21, which could be taken away only by

1 1993 Supp (2) SCC 497

2 2002 CriLJ 1392

3 (2005) 4 SCC 303

4 (2015) 11 SCC 628

5 (1981) 3 SCC 143

11

just fair and reasonable procedure and to check abuse of power

by police and injustice to a citizen, exercise of right of arrest was

required to be suitably regulated by way of guidelines by this

Court under Article 32 read with Article 141 of the Constitution.

Some filters were required to be incorporated to meet the

mandate of Articles 14 and 21 to strengthen the rule of law.

13. Learned amicus submitted that this Court has generally

acknowledged the misuse of power of arrest and directed that

arrest should not be mechanical. It has been laid down that the

exercise of power of arrest requires reasonable belief about a

person’s complicity and also about need to effect arrest. Reliance

has been placed on Joginder Kumar versus State of U.P.

6

,

M.C. Abraham versus State of Maharashtra

7

, D.

Venkatasubramaniam versus M. K. Mohan

Krishnamachari

8

, Arnesh Kumar versus State of Bihar

9

and Rini Johar & Ors. versus State of M.P. & Ors.

10

6 (1994) 4 SCC 260

7 (2003) 2 SCC 649

8 (2009) 10 SCC 488

9 (2014) 8 SCC 273

10 (2016) 11 SCC 703

12

14. It was submitted that in the context of the Atrocities Act, in

the absence of tangible material to support a version, to prevent

exercise of arbitrary power of arrest, a preliminary enquiry may

be made mandatory. Reasons should be required to be recorded

that information was credible and arrest was necessary. In the

case of public servant, approval of disciplinary authority should be

obtained and in other cases approval of Superintendent of Police

should be necessary. While granting such permission, based on a

preliminary enquiry, the authority granting permission should be

satisfied about credibility of the information and also about need

for arrest. If an arrest is effected, while granting remand, the

Magistrate must pass a speaking order as to correctness or

otherwise of the reasons for which arrest is effected. These

requirements will enforce right of concerned citizens under

Articles 14 and 21 without in any manner affecting genuine

objects of the Act.

15. Learned amicus further submitted that Section 18 of the

Atrocities Act, which excludes Section 438 Cr.P.C., violates

constitutional mandate under Articles 14 and 21 and is ultra vires

13

the Constitution. The said provision was upheld in State of M.P.

versus Ram Krishna Balothia

11 but the said judgment was in

ignorance of the Constitution Bench judgment in Gurbaksh

Singh Sibbia etc. versus State of Punjab

12

. If a Court is not

debarred from granting anticipatory bail even in most heinous

offences including murder, rape, dacoity, robbery, NDPS, sedition

etc., which are punishable with longer periods depending upon

parameters for grant of anticipatory bail, taking away such power

in respect of offences under the Act is discriminatory and violative

of Article 14. Exclusion of court’s jurisdiction, even where the

court is satisfied that arrest of a person was not called for, has no

nexus with the object of the Atrocities Act. In this regard, reliance

has been placed on following observations in Sibbia (supra).

“10. Shri V.M. Tarkunde, appearing on behalf of some

of the appellants, while supporting the contentions of

the other appellants, said that since the denial of bail

amounts to deprivation of personal liberty, courts

should lean against the imposition of unnecessary

restrictions on the scope of Section 438, when no such

restrictions are imposed by the legislature in the terms

of that section. The learned Counsel added a new

dimension to the argument by invoking Article 21 of

the Constitution. He urged that Section 438 is a

procedural provision which is concerned with the

personal liberty of an individual who has not been

11 (1995) 3 SCC 221

12 (1980) 2 SCC 565

14

convicted of the offence in respect of which he seeks

bail and who must therefore be presumed to be

innocent. The validity of that section must accordingly

be examined by the test of fairness and

reasonableness which is implicit in Article 21. If the

legislature itself were to impose an unreasonable

restriction on the grant of anticipatory bail, such a

restriction could have been struck down as being

violative of Article 21. Therefore, while determining

the scope of Section 438, the court should not impose

any unfair or unreasonable limitation on the

individual’s right to obtain an order of anticipatory

bail. Imposition of an unfair or unreasonable limitation,

according to the learned Counsel, would be violative

of Article 21, irrespective of whether it is imposed by

legislation or by judicial decision.

13. … …The High Court and the Court of Session to

whom the application for anticipatory bail is made

ought to be left free in the exercise of their judicial

discretion to grant bail if they consider it fit so to do

on the particular facts and circumstances of the case

and on such conditions as the case may warrant. ….

21. …. …A wise exercise of judicial power inevitably

takes care of the evil consequences which are likely to

flow out of its intemperate use. …

26. We find a great deal of substance in Mr.

Tarkunde’s submission that since denial of bail

amounts to deprivation of personal liberty, the court

should lean against the imposition of unnecessary

restrictions on the scope of Section 438, especially

when no such restrictions have been imposed by the

legislature in the terms of that section. Section 438 is

a procedural provision which is concerned with the

personal liberty of the individual, who is entitled to the

benefit of the presumption of innocence since he is

not, on the date of his application for anticipatory bail,

convicted of the offence in respect of which he seeks

bail. An over-generous infusion of constraints and

conditions which are not to be found in Section 438

15

can make its provisions constitutionally vulnerable

since the right to personal freedom cannot be made to

depend on compliance with unreasonable restrictions.

The beneficent provision contained in Section 438

must be saved, not jettisoned. No doubt can linger

after the decision in Maneka Gandhi (1978) 1 SCC 248,

that in order to meet the challenge of Article 21 of the

Constitution, the procedure established by law for

depriving a person of his liberty must be fair, just and

reasonable. Section 438, in the form in which it is

conceived by the legislature, is open to no exception

on the ground that it prescribes a procedure which is

unjust or unfair. We ought, at all costs, to avoid

throwing it open to a Constitutional challenge by

reading words in it which are not to be found therein.”

16. Reliance has also placed on recent judgment of this Court in

Nikesh Tarachand Shah versus Union of India and Anr.

13

declaring Section 45 of the Prevention of Money Laundering Act,

2002 unconstitutional. This Court held that fetters on grant of

bail under the said provision when such fetters were not

applicable to other offences punishable in like manners was

discriminatory and against the principle of fair just and

reasonable procedure.

Submissions of counsel for intervenor supporting the

appeal

13 (2017) 13 Scale 609, 2017 SCC OnLine SC 1355

16

17. Ms. Manisha T. Karia, counsel appearing for intervenor on

behalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be

victim of a false complaint, submitted that respondent No. 2

lodged a false FIR No. 3210 of 2017 dated 2nd November, 2017

against her at Khadki police station alleging that she, in collusion

with the appellant herein, pressurized respondent no. 2 to

withdraw the FIR No.164 of 2016 registered with Karad Police

Station and she falsely implicated respondent no. 2 in a sexual

harassment case. She is working as an Assistant Professor in the

Department of Instrumentation and Control in College of

Engineering, Pune since last eight years where respondent No. 2

was working as a storekeeper. She had made a complaint against

him for her sexual harassment and as a reaction, the FIR was

lodged by respondent No. 2 by way of the Atrocities Act. Her

anticipatory bail application was rejected by the session court but

the High Court, vide order dated 23rd November, 2017, granted

interim protection against arrest. Thereafter, respondent No. 2

initiated proceedings under Section 107 Cr.P.C. and the intervenor

received notice dated 2nd December, 2017 from the Magistrate. It

was submitted that there was no safeguard against false

17

implication, undue harassment and uncalled for arrest and thus,

this Court must incorporate safeguards against unreasonable and

arbitrary power of arrest in such cases without following just fair

and reasonable procedure which may be laid down by this Court.

Such requirement, it was submitted, was implicit requirement of

law but was not being followed.

18. Laying down safeguards to enforce constitutional guarantee

under Article 21 was necessary in view of the Sixth Report dated

19th December, 2014 of the Standing Committee on Social Justice

and Empowerment (2014-15) on the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014

rejecting the stand of the Ministry to the effect that there was no

need to provide for action against false or malafide implication

under the Atrocities Act. It was observed therein:-

“3.9 The Committee are not inclined to accept the

contention of the Ministry that those who are found to

be misusing the provisions of the Act can be tried as

per normal law of the land under the relevant sections

of the IPC. The Committee are of the firm view that

the PoA Act, being a special law, should be wholesome

to the extent that it must contain an inbuilt provision

for securing justice for those too who are falsely

implicated with mala fide under it. More so, when the

law makers have shown such perspicacity in

addressing such issues/misgivings when they inserted

18

clause 14 (Punishment for false or malicious complaint

and false evidence) in ‘The Sexual Harassment of

women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013.”

19. Thus, unless this Court laid down appropriate guidelines,

there will be no protection available against arbitrary arrests or

false implications in violation of Article 21 of the Constitution. The

intervenor submitted that preliminary enquiry must be held

before arrest with regard to the following factors:

“a. Date and time of the incident and provocation.

b. Preexisting dispute between the parties or

rivalry.

c. Gravity of the issue involved.

d. Nature of allegations by both the parties.

e. Necessary documents and evidence by the

victim and accused to substantiate their case to

be placed before committee.

f. The proceedings may be recorded to avoid

allegations of bias and non-transparency.”

20. The following further safeguards have been suggested by

the counsel for the intervenor:

“Arrest specifically in connection with offences under

POA Act should only be made with the prior sanction

of the Magistrate. However this may not apply in case

arrest has to be made in connection with other

19

offences under IPC. Further the gravity of offence also

needs to be seen since most of the cases at the

institutional level are only on the basis of mere

altercations or action by the public servants in their

official capacity.

Secondly if the Accused under the POA Act surrenders

with prior notice to the Public Prosecutor, then his bail

Application should be considered on the same day and

if not the regular bail, then at the least interim bail

should be granted in the interest of justice. This

requirement may be read into Section 18 of the POA

Act.”

21. In support of the submission that courts have acknowledged

the misuse of law, reliance has also been placed on the following

Judgments :

(i) Judgment of the Madras High Court in Jones versus

State

14

wherein the High Court observed:

“This Court recently has brought to light the misuse

of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 against people

of other community. This is another example of

misuse of the Act. The purpose of bringing SC & ST

Act is to put down the atrocities committed on the

members of the scheduled castes and scheduled

tribes. The law enforcing authorities must bear in

mind that it cannot be misused to settle other

disputes between the parties, which is alien to the

provisions contemplated under the Act. An Act

enacted for laudable purpose can also become

unreasonable, when it is exercised overzealously by

the enforcing authorities for extraneous reasons. It

14 2004 SCC OnLine Mad 922: 2004 CriLJ2755

20

is for the authorities to guard against such misuse

of power conferred on them.”

(ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs.

State of Gujarat

15 observing :

“But then having closely examined the complaint

more particularly in the context and light of the

backdrop of the peculiar facts situation highlighted

by the petitioner leading ultimately to filing of the

complaint, this Court prime facie at the very outset

is at some doubt about the complainant’s story and

yet if it readily, mechanically like a gullible child

accepts the allegations made in the complaint at its

face value, it would be surely blundering and

wandering away from the path of bail-justice,

making itself readily available in the hands of the

scheming complainant who on mere asking will get

arrested accused on some false allegations of

having committed non-bailable offence, under the

Atrocity Act, meaning thereby the Court rendering

itself quite deaf, dumb and blind mortgaging its

commonsense, ordinary prudence with no

perception for justice, denying the rightful

protection to the accused becoming ready pawn

pliable in the hands of sometime scheming,

unscrupulous complainants !!! This sort of a

surrender to prima facie doubtful allegation in the

complaint is not at all a judicial approach, if not

unjudicial !! At the cost of repetition, 1 make it clear

that these observations are only preliminary, at this

stage only in peculiar background of the case

highlighted by petitioner-accused and for that

purpose may be even in future be so highlighted by

the accused in some other cases to the satisfaction

of the Court ! The reason is having regard to the

basic cardinal tenets of the criminal jurisprudence

more particularly in view of the peculiar

circumstances highlighted by the accused which

allegedly actuated complainant to victimise him, in

15 (1997) 2 GLR 942

21

case if ultimately at the end of trial what the

accused has submitted in defence is accepted as

probable or true and as a result, the accused is

given a clean bill, holding that the complaint was

nothing else but false, concoction by way of spite to

wreck the personal vengeance then in that case

what indeed would be the remedy and redresses in

the hands of the petitioner, who in the instant case

is Doctor by profession and for that purpose in

other cases an innocent citizen? He stands not only

stigmatised by filing of a false complaint against

him but he shall stand further subjected to trial !!

Not only that but before that even subjected to

arrest before the public eye and taken to Special

Court where only he could pray for bail ! Thus,

subjected to all sort of agonies, pains and

sufferings lowering his image and esteem in the

eye of public because the Court when approached

adopted the helpless attitude? Under such

bewildering circumstances, what indeed would be

the face of the Court and the fate of the

Administration of Justice denying bail to some

victimised innocent accused at crucial stage when

he surrenders to the Court custody for the

purpose?!! Should the Court proclaiming doing

justice stand befooled at the hands of some

mischievous complainant with head-down in shame

!! Supposing for giving false evidence before the

Court, the complainant is ordered to be prosecuted,

but then will such prosecutions of complainant

bring back the damage already done to an innocent

!! Bearing in mind this most embarrassing and

excruciating situation created by the

complainant when, this Court as a

Constitutional functionary is duty bound to

zealously protect the liberty of citizen, should

it be helplessly watching and passively

surrendering itself to sometimes prima facie

ex-facie malicious complaint denying simple

bail to the accused? In this regard, perhaps, it

may be idly said that accused can be given

compensation for the malicious prosecution

22

and ultimate refusal of bail or anticipatory

bail !! True, but then in that case what

compensation can any Court would be in a

position to give when the complainant is a

person who is poor enough unable to pay a

single pie?!! Not only that but in case

complainant is rich and able to pay

compensation then even can any monetary

compensation ever adequately compensate

the wrong accused suffered at the hands of

the malicious complainant? It is here that the

conscience of this Court stands pricked and

terribly perturbed and indeed will have a

sleepless night if what ought we do not know

where the petitioner, in the facts and

circumstances of the case be quite innocent

and accordingly a needy consumer of bail

justice and yet is unnecessarily subjected to

arrest taken to the police custody and then

before Court because of denial of bail to him

at this stage !!”

(iii) Dealing with the same issue, the Gujarat High Court in

Dhiren Prafulbhai Shah versus State of Gujarat

16 observed

as under:

“48. In the course of my present sitting, I have come

across various cases wherein the provisions of

Atrocities Act are misused. I find that various

complaints are filed immediately after elections, be it

Panchayat, Municipal or Corporation, alleging offence

under the Atrocities Act. I have no hesitation in saying

that in most of the cases, it was found that the

F.I.R.s/Complaints were filed only to settle the score

with their opponents after defeat in the elections. I

have also come across various cases, wherein, private

civil disputes arising out of property, monetary

16 2016 CriLJ 2217

23

matters, dispute between an employee and employer,

dispute between the subordinate and his superior – are

given penal and the complaints are being filed either

under Section 190 r/w. 200 or F.I.Rs. at the police

station. The matter in hand is one another example of

misuse of the Act. As observed by me earlier, the

purpose of bringing SC and ST Act is to put-down the

atrocities committed on the members of the

Scheduled Castes and Scheduled Tribes. The law

enforcing authorities must bear in mind that it cannot

be misused to settle other disputes between the

parties like the case one in hand, which is alien to the

provisions contemplated under the laudable Act. An

Act enacted for laudable purpose can also become

unreasonable, when it is exercised over-zealously by

the enforcing authorities for extraneous reasons. It is

for the authorities to guard against such misuse of

power conferred on them.

49. Passing mechanically orders by the Court of

Magistrates in complaint and/or registration of the

F.I.R. at the Police Station, which do not have any

criminal element, causes great hardships, humiliation,

inconvenience and harassment to the citizens. For no

reasons the reputation of the citizen is put to stake as

immediately after the said orders are passed, innocent

citizens are turned as accused. One should not

overlook the fact that there is Section-18 in the

Atrocities Act, which imposes a bar so far as the grant

of anticipatory bail is concerned, if the offence is one

under the Atrocities Act. If a person is accused having

committed murder, dacoity, rape, etc., he can pray for

anticipatory bail under Section-438 of the Cr.P.C. on

the ground that he is innocent and has been falsely

involved, but if a person alleged to have committed an

offence under the Atrocities Act, cannot pray for an

anticipatory bail because of the bar of Section-18 of

the Act, and he would get arrested. This is the reason

for the authorities to guard against any misuse of the

Provisions of the Atrocities Act.”

24

(iv) Judgment of Gujarat High Court in Pankaj D Suthar

versus State of Gujarat

17 observing :

“4. …But then, what according to this Court is

the most welcome step by way of collective

wisdom of the Parliament in ushering social

beneficial legislation cannot be permitted to

be abused and converted into an instrument

to blackmail to wreak some personal

vengeance for settling and scoring personal

vendetta or by way of some counter-blasts

against opponents some public servants, as

prima facie appears to have been done in the

present case. The basic questions in such

circumstances therefore are-Whether a torch

which is lighted to dispel the darkness can it

be permitted to set on fire the innocent

surroundings? Whether a knife an instrument

which is meant for saving human life by using

the same in the course of operation by a

surgeon, can it be permitted to be used in

taking the life of some innocent? The very same

fundamental question arises in the facts and

circumstances of this case also, viz., ‘whether any

statute like the present Atrocities Act, especially

enacted for the purposes of protecting weaker

sections of the society hailing from S.C. & S.T.

communities can be permitted to be abused by

conveniently converting the same into a weapon of

wrecking personal vengeance on the opponents?’

The answer to this question is undoubtedly

and obviously ‘No’. Under such circumstances,

if the Courts are to apply such provision of

Section 18 of the Atrocities Act quite

mechanically and blindly merely guided by

some general and popular prejudices based on

some words and tricky accusations in the

complaint on mere assumptions without

intelligently scrutinising and testing the

probabilities, truthfulness, genuineness and

17 (1992)1 GLR 405

25

otherwise dependability of the accusations in

the complaint etc., then it would be simply

unwittingly and credulously playing in the

hands of some scheming unscrupulous

complainant in denying the justice. Virtually, it

would be tantamount to abdicating and relegating

its judicial duty, function of doing justice in such

matters in favour and hands of such unscrupulous

complainant by making him a Judge in his own

cause. This is simply unthinkable and therefore

impermissible. Whether the provisions of any

particular Act and for that purpose the rules

made thereunder are applicable to the facts of

a particular case or not, is always and

unquestionably a matter which lies strictly

and exclusively within the domain of ‘judicial

consideration-discretion’ and therefore

neither mere allegations made in the

complainant by themselves nor bare denials

by the accused can either automatically vest

or divest the Court from discharging its

ultimate judicial function-duty to closely

scrutinise and test the prima facie

dependability of the allegations made in the

complaint and reach its own decision.”

(v) Judgment of Bombay High Court in Sharad versus

State of Maharashtra

18 observing :

“12. We hasten to add that such type of

complaints for rampant misuse of the

provisions of Section 3(1)(x) of the Scheduled

Castes & Scheduled Tribes (Prevention of

Atrocities) Act, 1989, are largely being filed

particularly against Public Servants/quasi

judicial/judicial officers with oblique motive

for satisfaction of vested interests. We think

the learned Members of the Bar have

enormous social responsibility and obligation

18 2015(4) BomCR(Crl) 545

26

to ensure that the social fabric of the society

is not damaged or ruined. They must ensure

that exaggerated versions should not be

reflected in the criminal complaints having

the outrageous effect of independence of

judicial and quasi judicial authorities so also

the public servants. We cannot tolerate

putting them in a spooked, chagrined and

fearful state while performing their public

duties and functions. We also think that a

serious re-look at the provisions of the Act of

1989 which are being now largely misused is

warranted by the Legislature, of course, on

the basis of pragmatic realities and public

opinion. A copy of this Judgment is directed

to be sent to the Law Commission for

information.”

22. It was, thus, submitted that above judgments are merely

illustrations to show that the abuse of law was rampant. If mere

accusations are treated as sufficient, it may unfairly damage the

personal and professional reputation of a citizen. There is a need

to balance the societal interest and peace on the one hand and

the protection of rights of victims of such false allegations on the

other. If allegations are against an employee, a committee

should be formed in every department as follows:-

“i. The employer or Head of every institution may

be directed to constitute an internal committee to look

into the matters and specific grievances related to

atrocities committed on the members of SC/ST.

…………..

27

ii. That before proceeding to lodge any FIR or

criminal complaint, a written complaint should made

to the internal committee of the institution along with

supportive evidence.

iii. Such committee may be given the power to

conduct a preliminary inquiry into the matter by

hearing both the parties and other evidence, so as to

ascertain the existence of a prima facie case under

the POA Act.”

23. It has been further suggested that Magistrate must verify the

averments in a Complaint/FIR to ascertain whether a prima facie

case is made out and whether arrest was necessary and only then

arrest should be made or continued.

24. It is further submitted by the counsel for the intervenor that

the Atrocities Act is also prone to misuse on account of monetary

incentive being available merely for lodging a case under Rule

12(4) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Rules, 1995. Such incentive may encourage not only

genuine victims but, there being no safeguard even against a

false case being registered only to get the monetary incentive,

such false cases may be filed without any remedy to the affected

person.

28

25. Reference has also been made to Annual Report 2016-2017

of the Ministry of Social Justice and Empowerment and data

compiled by the Government of Maharashtra for the years 1990

to 2013 (dated 30th April, 2013) in respect of offences registered

under Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 and Protection of Civil Rights Act, 1955

against Maharashtra Members of Parliament, Member of

Legislative Assembly, Zill Parishad Adhyaksha, Gramsevak,

Talathi, B.D.O., Collector, Palakmantri, Chief Minister, Home

Minister, IPS, IAS, IRS, IFS, MNP Commissioner, MNP Assistant

Commissioner, other Government Officer/Servant, other nonGovernment

Officers/Servants (numeric data prepared on the

basis of information available).

26. As per data (Crime in India 2016 – Statistics) compiled by the

National Crime Records Bureau, Ministry of Home Affairs under

the headings “Police Disposal of Crime/Atrocities against

SCs cases (State/UT-wise)-2016” (Table 7A.4) and “Police

Disposal of Crime/Atrocities against STs Cases (State/UTwise)

– 2016” (Table 7C.4) it is mentioned that in the year 2016,

29

5347 cases were found to be false cases out of the investigated

out of SC cases and 912 were found to be false cases out of ST

cases. It was pointed out that in the year 2015, out of 15638

cases decided by the courts, 11024 cases resulted in acquittal or

discharge, 495 cases were withdrawn and 4119 cases resulted in

conviction. (Reference: Annual Report 2016-2017 published by

the Department of Social Justice & Empowerment, Ministry of

Social Justice and Empowerment, Government of India).

Interventions against the appellant

27. Intervention application has also been filed by one Ananda

Sakharam Jadhav who claims to be convenor of the Bahujan

Karmachari Kalyan Sangh. Shri C.U. Singh, learned senior counsel

appearing for the said intervenor, submitted that where law is

clear no guideline should be issued by the Court. Reliance has

been placed on State of Jharkhand and Anr. Versus Govind

Singh

19 and Rohitash Kumar and Ors versus Om Prakash

Sharma and Ors.

20

It was submitted that this Court could not

lay down guidelines in the nature of legislation.

19 (2005)10 SCC 437

20 (2013)11 SCC 451

30

28. Shri C.U. Singh submitted that the Section 18 of the

Atrocities Act has already been upheld in Balothia (supra) and

Manju Devi versus Onkarjit Singh Ahluwalia

21

. He also

relied upon Statement of Objects and Reasons of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities)

Amendment Bill, 2013 dated 14th July, 2014. Therein it is stated

that there are procedural hurdles such as non-registration of

cases, procedural delays in investigation, arrests and filing of

charge-sheets and delays in trial and low conviction rate on

account of which in spite of deterrent provisions, atrocities

against SC/ST continues at disturbing level which necessitated

amendment in the Act.

29. Further intervention has been sought by one Yogendra

Mohan Harsh. Learned counsel for the said intervenor submitted

that atrocities against SCs and STs are increasing and if

submissions of amicus are to be accepted, the Act will be

rendered ineffective and teethless.

21 (2017) 13 SCC 439

31

Submissions of learned Additional Solicitor General

(ASG)

30. Learned ASG submitted that in view of decisions in Balothia

(supra) and Manju Devi (supra) there is no occasion to go into

the issue of validity of provisions of the Atrocities Act. He also

submitted that decisions of this Court in Vilas Pandurang

Pawar and Anr. versus State of Maharashtra and Ors.

22

and Shakuntla Devi versus Baljinder Singh

23 permit grant of

anticipatory bail if no prima facie case is made out. Thus, in

genuine cases anticipatory bail can be granted. He also

submitted that the Government of India had issued advisories on

3

rd February, 2005, 1st April, 2010 and 23rd May, 2016 and also

further amended the Atrocities Act vide Amendment Act No. 1 of

2016 which provides for creation of Special Courts as well as

Exclusive Special Courts. Referring to the data submitted by the

National Crime Records Bureau (NCRB) it was further submitted

that out of the total number of complaints investigated by the

police in the year 2015, both for the persons belonging to the SC

category and also belonging to the ST category, in almost 15-16%

22 (2012) 8 SCC 795

23 (2014) 15 SCC 521

32

cases, the competent police authorities had filed closure reports.

Out of the cases disposed of by the courts in 2015, more than

75% cases have resulted in acquittal/withdrawal or compounding

of the cases. It was submitted that certain complaints were

received alleging misuse of the Atrocities Act and a question was

also raised in Parliament as to what punishment should be given

against false cases. The reply given was that awarding

punishment to members of SCs and STs for false implication

would be against the spirit of the Act. A press statement dated

19th March, 2015 was issued by the Central Government to the

effect that in case of false cases, relevant Sections of IPC can be

invoked. It was submitted that no guideline should be laid down

by this Court which may be legislative in nature.

Consideration of the issue whether directions can be

issued by this Court to protect fundamental right under

Article 21 against uncalled for false implication and

arrests

31. We may, at the outset, observe that jurisdiction of this Court

to issue appropriate orders or directions for enforcement of

fundamental rights is a basic feature of the Constitution. This

Court, as the ultimate interpreter of the Constitution, has to

33

uphold the constitutional rights and values. Articles 14, 19 and

21 represent the foundational values which form the basis of the

rule of law. Contents of the said rights have to be interpreted in a

manner which enables the citizens to enjoy the said rights. Right

to equality and life and liberty have to be protected against any

unreasonable procedure, even if it is enacted by the legislature.

The substantive as well as procedural laws must conform to

Articles 14 and 21. Any abrogation of the said rights has to be

nullified by this Court by appropriate orders or directions. Power

of the legislature has to be exercised consistent with the

fundamental rights. Enforcement of a legislation has also to be

consistent with the fundamental rights. Undoubtedly, this Court

has jurisdiction to enforce the fundamental rights of life and

liberty against any executive or legislative action. The expression

‘procedure established by law’ under Article 21 implies just, fair

and reasonable procedure24

.

32. This Court is not expected to adopt a passive or negative

role and remain bystander or a spectator if violation of rights is

24 Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 to 85

34

observed. It is necessary to fashion new tools and strategies so

as to check injustice and violation of fundamental rights. No

procedural technicality can stand in the way of enforcement of

fundamental rights25. There are enumerable decisions of this

Court where this approach has been adopted and directions

issued with a view to enforce fundamental rights which may

sometimes be perceived as legislative in nature. Such directions

can certainly be issued and continued till an appropriate

legislation is enacted26. Role of this Court travels beyond merely

dispute settling and directions can certainly be issued which are

not directly in conflict with a valid statute27. Power to declare law

carries with it, within the limits of duty, to make law when none

exists28

.

33. Constitution Bench of this Court in Union of India versus

Raghubir Singh

29

, observed :

“7. … It used to be disputed that Judges make law.

Today, it is no longer a matter of doubt that a

25 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13

26 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v.

UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N.

(1996) 6 SCC 756

27 Supreme Court Bar Asson. V. UOI (1998) 4 SCC 409, para 48

28 Dayaram vs. Sudhir Batham (2012) 1 SCC 333, para 18

29 (1989(2) SCC 754

35

substantial volume of the law governing the lives of

citizens and regulating the functions of the State flows

from the decisions of the superior Courts. “There was

a time,” observed Lord Reid, “When it was thought

almost indecent to suggest that Judges make law –

They only declare it…. But we do not believe in fairly

tales any more.” “The Judge as Law Maker”, p. 22. In

countries such as the United Kingdom, where

Parliament as the legislative organ is supreme and

stands at the apex of the constitutional structure of

the State, the role played by judicial law-making is

limited.

In the first place the function of the Courts is restricted

to the interpretation of laws made by Parliament, and

the Courts have no power to question the validity of

Parliamentary statutes, the Diceyan dictum holding

true that the British Parliament is paramount and all

powerful. In the second place, the law enunciated in

every decision of the Courts in England can be

superseded by an Act of Parliament. As Cockburn C.J.

observed in Exp. Canon Selwyn (1872) 36 JP Jo 54:

There is no judicial body in the country by which the

validity of an Act of Parliament could be questioned.

An act of the Legislature is superior in authority to any

Court of Law.

And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All

ER 779 referred to a Parliamentary statute as “the

highest form of law…which prevails over every other

form of law.” The position is substantially different

under a written Constitution such as the one which

governs us. The Constitution of India, which

represents the Supreme Law of the land, envisages

three distinct organs of the State, each with its own

distinctive functions, each a pillar of the State.

Broadly, while Parliament and the State Legislature fin

India enact the law and the Executive Government

implements it, the judiciary sits in judgment not only

on the implementation of the law by the Executive but

also on the validity of the Legislation sought to be

36

implemented One of the functions of the superior

judiciary in India is to examine the competence and

validity of legislation, both in point of legislative

competence as well as its consistency with the

Fundamental Rights. In this regard, the Courts in India

possess a power not known to the English Courts.

Where a statute is declared invalid in India it cannot

be reinstated unless constitutional sanction is

obtained therefore by a constitutional amendment of

an appropriately modified version of the statute is

enacted which accords with constitutional

prescription.

The range of judicial, review recognised in the superior

judiciary of India is perhaps the widest and the most

extensive known to the world of law.

The power extends to examining the validity of even

an amendment to the Constitution, for now it has

been repeatedly held that no constitutional

amendment can be sustained which [violates the

basic structure of the Constitution. See Kesavananda

Bharati Sripadagalayaru v. State of Kerala

AIR1973SC1461), Smt. Indira Nehru. Gandhi v. Raj

Narain [1976]2SCR347], Minerva Mills Ltd. v. Union of

India [1981]1SCR206] and recently in S. P. Sampath

Kumar v. Union of India [(1987)ILLJ128SC]. With this

impressive expanse of judicial power, it is only right

that the superior Courts in India should be conscious

of the enormous responsibility which rests on them.

This is specially true of the Supreme Court, for as the

highest Court in the entire judicial system the law

declared by it is, by Article 141 of the Constitution,

binding on« all Courts within the territory of India.”

34. The law has been summed up in a decision in Rajesh

Kumar versus State

30 as follows:

30 (2011) 13 SCC 706

37

“62. Until the decision was rendered in Maneka Gandhi

(supra), Article 21 was viewed by this Court as rarely

embodying the Diceyian concept of rule of law that no

one can be deprived of his personal liberty by an

executive action unsupported by law. If there was a

law which provided some sort of a procedure it was

enough to deprive a person of his life or personal

liberty. In this connection, if we refer to the example

given by Justice S.R. Das in his judgment in A.K.

Gopalan (supra) that if the law provided the Bishop of

Rochester ‘be boiled in oil’ it would be valid under

Article 21. But after the decision in Maneka Gandhi

(supra) which marks a watershed in the development

of constitutional law in our country, this Court, for the

first time, took the view that Article 21 affords

protection not only against the executive action but

also against the legislation which deprives a person of

his life and personal liberty unless the law for

deprivation is reasonable, just and fair. and it was held

that the concept of reasonableness runs like a golden

thread through the entire fabric of the Constitution

and it is not enough for the law to provide some

semblance of a procedure. The procedure for

depriving a person of his life and personal liberty must

be eminently just, reasonable and fair and if

challenged before the Court it is for the Court to

determine whether such procedure is reasonable, just

and fair and if the Court finds that it is not so, the

Court will strike down the same.”

35. Apart from the above, there are enumerable occasions when

this Court has issued directions for enforcement of fundamental

rights e.g., directions regarding functioning of caste scrutiny

Committee31; directions to regulate appointment of law officers32;

31 Madhuri Patil v. Tribal Development (1994) 6 SCC 241

32 State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1

38

directions to regulate powers of this Court and High Courts in

designating Senior Advocates33; guidelines have been issued for

the welfare of a child accompanying his/her mother in

imprisonment34; directions for checking trafficking of women and

children35; for night shelters for the homeless36; directions to

check malnutrition in children37; directions to provide medical

assistance by Government run hospitals38; directions for

protection of human rights of prisoners39; directions for speedy

trial of under trials40. The list goes on.

36. Issuance of directions to regulate the power of arrest has

also been the subject matter of decisions of this Court. In

Joginder Kumar versus State of U.P.

41

, this Court observed

that horizon of human rights is expanding. There are complaints

of violation of human rights because of indiscriminate arrests.

The law of arrest is of balancing individual rights, liberties and

privileges, duties, obligations and responsibilities. On the one

33 Indira Jaising versus Supreme Court of India (2017) 9 SCC 766

34 R.D. Upadhyay versus State of A.P. (2007) 15 SCC 337

35 Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1

36 Union for Civil Liberties versus UOI (2010)5 SCC 318

37 People’s Union for Civil Liberties versus UOI (2004) 12 SCC 104 and (2010) 15 SCC 57

38 Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4 SCC 37

39Sunil Batra versus Delhi Admn. (1978) 4 SCC 494

40Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98

41 (1994) 4 SCC 260

39

side is the social need to check a crime, on the other there is

social need for protection of liberty, oppression and abuse by the

police and the other law enforcing agencies. This Court noted the

3

rd Report of the National Police Commission to the effect that

power of arrest was one of the chief sources of corruption of

police. 60% of arrests were unnecessary or unjustified. The

arrest could be unjustified only in grave offences to inspire the

confidence of the victim, to check the accused from committing

further crime and to prevent him from absconding. The National

Police Commission recommended that the police officer making

arrest should record reasons. This Court observed that no arrest

can be made merely because it is lawful to do so. The exercise of

power must be for a valid purpose. Except in heinous offences

arrest must be avoided. This requirement was read into Article

2142

. In Arnesh Kumar versus State of Bihar

43

, this Court

observed that arrest brings humiliation, curtails freedom and

casts scars forever. It is considered a tool for harassment and

oppression. The drastic power is to be exercised with caution.

Power of arrest is a lucrative source of corruption. Referring to

42 Para 21

43 (2014) 8 SCC 273

40

the amendment of law in Section 41 Cr.P.C., in the light of

recommendations of the Law Commissions, it was directed that

arrest may be justified only if there is ‘credible information’ or

‘reasonable suspicion’ and if arrest was necessary to prevent

further offence or for proper investigation or to check interference

with the evidence. Reasons are required to be recorded.

However, compliance on the ground is far from satisfactory for

obvious reasons. The scrutiny by the Magistrates is also not

adequate. This Court issued the following directions:

“11. Our endeavour in this judgment is to ensure

that police officers do not arrest the accused

unnecessarily and Magistrate do not authorise

detention casually and mechanically. In order to

ensure what we have observed above, we give the

following directions:

11.1. All the State Governments to instruct its police

officers not to automatically arrest when a case under

Section 498-A IPC is registered but to satisfy

themselves about the necessity for arrest under the

parameters laid down above flowing from Section 41

CrPC;

11.2. All police officers be provided with a check list

containing specified sub-clauses under Section 41(1)

(b)(ii);

11.3. The police officer shall forward the check list

duly filled and furnish the reasons and materials

which necessitated the arrest, while

41

forwarding/producing the accused before the

Magistrate for further detention;

11.4. The Magistrate while authorising detention of

the accused shall peruse the report furnished by the

police officer in terms aforesaid and only after

recording its satisfaction, the Magistrate will authorise

detention;

11.5. The decision not to arrest an accused, be

forwarded to the Magistrate within two weeks from

the date of the institution of the case with a copy to

the Magistrate which may be extended by the

Superintendent of Police of the district for the reasons

to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A

CrPC be served on the accused within two weeks from

the date of institution of the case, which may be

extended by the Superintendent of Police of the

district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid

shall apart from rendering the police officers

concerned liable for departmental action, they shall

also be liable to be punished for contempt of court to

be instituted before the High Court having territorial

jurisdiction.

11.8. Authorising detention without recording

reasons as aforesaid by the Judicial Magistrate

concerned shall be liable for departmental action by

the appropriate High Court.”

37. In D.K. Basu versus State of W.B.

44, this Court, to check

abuse of arrest and drastic police power, directed as follows:

44 (1997) 1 SCC 416

42

“35. We, therefore, consider it appropriate to issue

the following requirements to be followed in all cases

of arrest or detention till legal provisions are made in

that behalf as preventive measures:

(1) The police personnel carrying out the arrest

and handling the interrogation of the arrestee should

bear accurate, visible and clear identification and

name tags with their designations. The particulars of

all such police personnel who handle interrogation of

the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of

the arrestee shall prepare a memo of arrest at the

time of arrest and such memo shall be attested by at

least one witness, who may either be a member of

the family of the arrestee or a respectable person

of the locality from where the arrest is made. It shall

also be countersigned by the arrestee and shall

contain the time and date of arrest.

(3) A person who has been arrested or detained

and is being held in custody in a police station or

interrogation centre or other lock-up, shall be entitled

to have one friend or relative or other person known

to him or having interest in his welfare being

informed, as soon as practicable, that he has been

arrested and is being detained at the particular place,

unless the attesting witness of the memo of arrest is

himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody

of an arrestee must be notified by the police where

the next friend or relative of the arrestee lives outside

the district or town through the Legal Aid

Organisation in the District and the police station of

the area concerned telegraphically within a period of

8 to 12 hours after the arrest.

(5) The person arrested must be made aware of

this right to have someone informed of his arrest or

detention as soon as he is put under arrest or is

detained.

(6) An entry must be made in the diary at the

place of detention regarding the arrest of the person

which shall also disclose the name of the next friend

43

of the person who has been informed of the arrest

and the names and particulars of the police officials

in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be

also examined at the time of his arrest and major and

minor injuries, if any present on his/her body, must be

recorded at that time. The “Inspection Memo” must

be signed both by the arrestee and the police officer

effecting the arrest and its copy provided to the

arrestee.

(8) The arrestee should be subjected to medical

examination by a trained doctor every 48 hours

during his detention in custody by a doctor on the

panel of approved doctors appointed by Director,

Health Services of the State or Union Territory

concerned. Director, Health Services should prepare

such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the

memo of arrest, referred to above, should be sent to

the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his

lawyer during interrogation, though not throughout

the interrogation.

(11) A police control room should be provided at all

district and State headquarters, where information

regarding the arrest and the place of custody of the

arrestee shall be communicated by the officer

causing the arrest, within 12 hours of effecting the

arrest and at the police control room it should be

displayed on a conspicuous notice board.

36. Failure to comply with the requirements

hereinabove mentioned shall apart from rendering

the official concerned liable for departmental action,

also render him liable to be punished for contempt of

court and the proceedings for contempt of court may

be instituted in any High Court of the country, having

territorial jurisdiction over the matter.

37. The requirements, referred to above flow from

Articles 21 and 22(1) of the Constitution and need to

be strictly followed. These would apply with equal

44

force to the other governmental agencies also to

which a reference has been made earlier.”

38. In Rini Johar (supra) this Court considered the issue of

wrongful arrest and payment of compensation. It was observed

that wrongful arrest violates Article 21 of the Constitution and

thus the victim of arrest was entitled to compensation. This Court

noted the observations and guidelines laid down against wrongful

arrests in Joginder Kumar (supra), D.K. Basu (supra), Arnesh

Kumar (supra) and other cases and held that since the arrest is

in violation of guidelines laid down by this Court and is violative of

Article 21, the person arrested was entitled to compensation.

39. In Subramanian Swamy versus UOI

45

, this Court

considered the issue of validity of provisions creating defamation

as an offence. In the course of said judgment, need for harmony

in competing claims of different interests was considered. This

Court observed that the fundamental rights are all parts of an

integrated scheme and their waters must mix to constitute grand

flow of impartial justice46. This Court also observed that

45 (2016) 7 SCC 221

46 Para 137

45

legislation should not invade the rights and should not smack of

arbitrariness. Considering the principles of reasonableness, this

Court observed that ultimate impact of rights has to be

determined. This was different from abuse or misuse of

legislation. Proportionality of restraint has to be kept in mind

while determining constitutionality. Concept of public interest and

social interest determine the needs of the society47. After

referring to Maneka Gandhi (supra), it was observed that it is

the duty of this Court to strike a balance in the right of speech

and right to protect reputation48. The restriction of law should be

rational and connected to the purpose for which it is necessary. It

should not be arbitrary or excessive49

.

40. Again this Court in Siddharam Satlingappa Mhetre

versus State of Maharashtra

50

laid down parameters for

exercise of discretion of anticipatory bail having regard to the

fundamental right of liberty under Article 21 of the Constitution

and the needs of the society where such liberty may be required

to be taken away. It was observed:

47 Para 130

48 Para 144

49 Para 194 and 195

50 (2011) 1 SCC 694

46

“Relevance and importance of personal liberty

36. All human beings are born with some unalienable rights

like life, liberty and pursuit of happiness. The importance of

these natural rights can be found in the fact that these are

fundamental for their proper existence and no other right can

be enjoyed without the presence of right to life and liberty.

Life bereft of liberty would be without honour and dignity and

it would lose all significance and meaning and the life itself

would not be worth living. That is why “liberty” is called the

very quintessence of a civilised existence. …

52. The fundamental rights represent the basic values

enriched by the people of this country. The aim behind having

elementary right of the individual such as the Right to Life

and Liberty is not fulfilled as desired by the Framers of the

Constitution. It is to preserve and protect certain basic human

rights against interference by the State. The inclusion of a

chapter in the Constitution is in accordance with the trends of

modern democratic thought. The object is to ensure the

inviolability of certain essential rights against political

vicissitudes. …

54. Life and personal liberty are the most prized possessions

of an individual. The inner urge for freedom is a natural

phenomenon of every human being. Respect for life, liberty

and property is not merely a norm or a policy of the State but

an essential requirement of any civilised society.

64. The object of Article 21 is to prevent encroachment upon

personal liberty in any manner. Article 21 is repository of all

human rights essential for a person or a citizen. A fruitful and

meaningful life presupposes life full of dignity, honour, health

and welfare. In the modern “Welfare Philosophy”, it is for the

State to ensure these essentials of life to all its citizens, and if

possible to non-citizens. While invoking the provisions of

Article 21, and by referring to the oftquoted statement of

Joseph Addison, “Better to die ten thousand deaths than

wound my honour”, the Apex Court in Khedat Mazdoor Chetna

Sangath v. State of M.P. (1994) 6 SCC 260 posed to itself a

question “If dignity or honour vanishes what remains of life?”

This is the significance of the Right to Life and Personal

Liberty guaranteed under the Constitution of India in its Third

Part. …

47

International Charters

Universal Declaration of Human Rights, 1948

80. Article 3 of the Universal Declaration says:

“3. Everyone has the right to life, liberty and security of

person.”

Article 9 provides:

“9. No one shall be subjected to arbitrary arrest, detention

or exile.”

Article 10 says:

“10. Everyone is entitled in full equality to a fair and public

hearing by an independent and impartial tribunal, in the

determination of his rights and obligations and of any

criminal charge against him.” [As to its legal effect, see M.

v. United Nations & Belgium (1972) 45 Inter LR 446 (Inter

LR at pp. 447, 451.)]

86. According to the Report of the National Police

Commission, when the power of arrest is grossly abused

and clearly violates the personal liberty of the people, as

enshrined under Article 21 of the Constitution, then the

courts need to take serious notice of it. When conviction

rate is admittedly less than 10%, then the police should be

slow in arresting the accused. The courts considering the

bail application should try to maintain fine balance

between the societal interest vis-à-vis personal liberty

while adhering to the fundamental principle of criminal

jurisprudence that the accused is presumed to be innocent

till he is found guilty by the competent court.

87. The complaint filed against the accused needs to be

thoroughly examined including the aspect whether the

complainant has filed a false or frivolous complaint on

earlier occasion. The court should also examine the fact

whether there is any family dispute between the accused

and the complainant and the complainant must be clearly

told that if the complaint is found to be false or frivolous,

then strict action will be taken against him in accordance

with law. If the connivance between the complainant and

the investigating officer is established then action be taken

against the investigating officer in accordance with law.

48

88. The gravity of charge and the exact role of the

accused must be properly comprehended. Before arrest,

the arresting officer must record the valid reasons which

have led to the arrest of the accused in the case diary. In

exceptional cases the reasons could be recorded

immediately after the arrest, so that while dealing with the

bail application, the remarks and observations of the

arresting officer can also be properly evaluated by the

court.

89. It is imperative for the courts to carefully and with

meticulous precision evaluate the facts of the case. The

discretion must be exercised on the basis of the available

material and the facts of the particular case. In cases

where the court is of the considered view that the accused

has joined investigation and he is fully cooperating with

the investigating agency and is not likely to abscond, in

that event, custodial interrogation should be avoided.

90. A great ignominy, humiliation and disgrace is attached

to the arrest. Arrest leads to many serious consequences

not only for the accused but for the entire family and at

times for the entire community. Most people do not make

any distinction between arrest at a pre-conviction stage or

post-conviction stage.

110. The Law Commission in July 2002 has severely

criticised the police of our country for the arbitrary use of

power of arrest which, the Commission said, is the result of

the vast discretionary powers conferred upon them by this

Code. The Commission expressed concern that there is no

internal mechanism within the Police Department to

prevent misuse of law in this manner and the stark reality

that complaint lodged in this regard does not bring any

result. The Commission intends to suggest amendments in

the Criminal Procedure Code and has invited suggestions

from various quarters. Reference is made in this article to

the 41st Report of the Law Commission wherein the

Commission saw “no justification” to require a person to

submit to custody, remain in prison for some days and

then apply for bail even when there are reasonable

grounds for holding that the person accused of an offence

is not likely to abscond or otherwise misuse his liberty.

Discretionary power to order anticipatory bail is required to

be exercised keeping in mind these sentiments and spirit

49

of the judgments of this Court in Sibbia case (1980)2 SCC

565 and Joginder Kumar v. State of U.P.(1994)4 SCC 260.

112. The following factors and parameters can be taken

into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the

exact role of the accused must be properly comprehended

before arrest is made;

(ii) The antecedents of the applicant including the fact

as to whether the accused has previously undergone

imprisonment on conviction by a court in respect of any

cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused’s likelihood to repeat

similar or other offences;

(v) Where the accusations have been made only with

the object of injuring or humiliating the applicant by

arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in

cases of large magnitude affecting a very large number of

people;

(vii) The courts must evaluate the entire available

material against the accused very carefully. The court must

also clearly comprehend the exact role of the accused in

the case. The cases in which the accused is implicated with

the help of Sections 34 and 149 of the Penal Code, 1860

the court should consider with even greater care and

caution because overimplication in the cases is a matter of

common knowledge and concern;

(viii) While considering the prayer for grant of

anticipatory bail, a balance has to be struck between two

factors, namely, no prejudice should be caused to the free,

fair and full investigation and there should be prevention of

harassment, humiliation and unjustified detention of the

accused;

(ix) The court to consider reasonable apprehension of

tampering of the witness or apprehension of threat to the

complainant;

(x) Frivolity in prosecution should always be considered

and it is only the element of genuineness that shall have to

be considered in the matter of grant of bail and in the

event of there being some doubt as to the genuineness of

the prosecution, in the normal course of events, the

accused is entitled to an order of bail.

50

113. Arrest should be the last option and it should be

restricted to those exceptional cases where arresting the

accused is imperative in the facts and circumstances of that

case. The court must carefully examine the entire available

record and particularly the allegations which have been

directly attributed to the accused and these allegations are

corroborated by other material and circumstances on record.

114. These are some of the factors which should be taken

into consideration while deciding the anticipatory bail

applications. These factors are by no means exhaustive but

they are only illustrative in nature because it is difficult to

clearly visualise all situations and circumstances in which a

person may pray for anticipatory bail. If a wise discretion is

exercised by the Judge concerned, after consideration of the

entire material on record then most of the grievances in

favour of grant of or refusal of bail will be taken care of. The

legislature in its wisdom has entrusted the power to exercise

this jurisdiction only to the Judges of the superior courts. In

consonance with the legislative intention we should accept

the fact that the discretion would be properly exercised. In

any event, the option of approaching the superior court

against the Court of Session or the High Court is always

available.

Irrational and indiscriminate arrests are gross violation

of human rights

115. In Joginder Kumar case (supra) a three-Judge Bench

of this Court has referred to the 3rd Report of the National

Police Commission, in which it is mentioned that the quality of

arrests by the police in India mentioned the power of arrest as

one of the chief sources of corruption in the police. The Report

suggested that, by and large, nearly 60% of the arrests were

either unnecessary or unjustified and that such unjustified

police action accounted for 43.2% of the expenditure of the

jails.

116. Personal liberty is a very precious fundamental right and

it should be curtailed only when it becomes imperative

according to the peculiar facts and circumstances of the case.

117. In case, the State considers the following suggestions in

proper perspective then perhaps it may not be necessary to

51

curtail the personal liberty of the accused in a routine

manner. These suggestions are only illustrative and not

exhaustive:

(1) Direct the accused to join the investigation and only

when the accused does not cooperate with the

investigating agency, then only the accused be arrested.

(2) Seize either the passport or such other related

documents, such as, the title deeds of properties or the

fixed deposit receipts/share certificates of the accused.

(3) Direct the accused to execute bonds.

(4) The accused may be directed to furnish sureties of a

number of persons which according to the prosecution are

necessary in view of the facts of the particular case.

(5) The accused be directed to furnish undertaking that

he would not visit the place where the witnesses reside so

that the possibility of tampering of evidence or otherwise

influencing the course of justice can be avoided.

(6) Bank accounts be frozen for small duration during

the investigation.

118. In case the arrest is imperative, according to the facts of

the case, in that event, the arresting officer must clearly

record the reasons for the arrest of the accused before the

arrest in the case diary, but in exceptional cases where it

becomes imperative to arrest the accused immediately, the

reasons be recorded in the case diary immediately after the

arrest is made without loss of any time so that the court has

an opportunity to properly consider the case for grant or

refusal of bail in the light of reasons recorded by the arresting

officer.

119. Exercise of jurisdiction under Section 438 CrPC is an

extremely important judicial function of a Judge and must be

entrusted to judicial officers with some experience and good

track record. Both the individual and society have vital

interest in orders passed by the courts in anticipatory bail

applications.

120. It is imperative for the High Courts through its judicial

academies to periodically organise workshops, symposiums,

52

seminars and lectures by the experts to sensitise judicial

officers, police officers and investigating officers so that they

can properly comprehend the importance of personal liberty

vis-à-vis social interests. They must learn to maintain fine

balance between the personal liberty and the social interests”

41. It is, thus, too late in the day to accept an objection that this

Court may not issue any direction which may be perceived to be

of legislative nature even if it is necessary to enforce fundamental

rights under Articles 14 and 21 of the Constitution.

Further consideration of potential impact of working of

Atrocities Act on spreading casteism

42. In the light of submissions made, it is necessary to express

concern that working of the Atrocities Act should not result in

perpetuating casteism which can have an adverse impact on

integration of the society and the constitutional values. Such

concern has also been expressed by this Court on several

occasions. Secularism is a basic feature of the Constitution.

Irrespective of caste or religion, the Constitution guarantees

equality in its preamble as well as other provisions including

Articles 14-16. The Constitution envisages a cohesive, unified

and casteless society.

53

43. Dr. B.R. Ambedkar, in his famous speech on 25th November,

1949, on conclusion of deliberations of the Constituent Assembly,

stated :

“These principles of liberty, equality and fraternity

are not to be treated as separate items in a trinity.

They form a union of trinity in the sense that to

divorce one from the other is to defeat the very

purpose of democracy. Liberty cannot be divorced

from equality, equality cannot be divorced from

liberty. Nor can liberty and equality be divorced from

fraternity. Without equality, liberty would produce the

supremacy of the few over the many. Equality

without liberty would kill individual initiative. Without

fraternity, liberty and equality could not become a

natural course of things. It would require a constable

to enforce them. …. …

… … … … … …

In India there are castes. The castes are antinational.

In the first place because they bring about

separation in social life. They are anti-national also

because they generate jealousy and antipathy

between caste and caste. But we must overcome all

these difficulties if we wish to become a nation in

reality. For fraternity can be a fact only when there is

a nation. Without fraternity, equality and liberty will

be no deeper than coats of paint.”

44. In Indra Sawhney and Ors versus Union of India and

Ors.

51

this Court observed:

“339. Secularism is the basic feature of the Indian

Constitution. It envisages a cohesive, unified and

51 1992 Supp(3) SCC 217

54

casteless society. The Constitution has completely

obliterated the caste system and has assured equality

before law. Reference to caste under Articles 15(2)

and 16(2) is only to obliterate it. The prohibition on

the ground of caste is total, the mandate is that never

again in this country caste shall raise its head. Even

access to shops on the ground of caste is prohibited.

The progress of India has been from casteism to

egalitarianism — from feudalism to freedom.

340. The caste system which has been put in the

grave by the framers of the Constitution is trying to

raise its ugly head in various forms. Caste poses a

serious threat to the secularism and as a consequence

to the integrity of the country. Those who do not learn

from the events of history are doomed to suffer again.

It is, therefore, of utmost importance for the people of

India to adhere in letter and spirit to the Constitution

which has moulded this country into a sovereign,

socialist, secular democratic republic and has

promised to secure to all its citizens justice, social,

economic and political, equality of status and of

opportunity.”

45. In the Report of the National Commission to Review the

Working of the Constitution one of the failures of the working of

the Constitution noted was that the elections continued to be

fought on caste lines. The said observations have been quoted in

People’s Union for Civil Liberties (PUCL) and Anr. Etc.

versus Union of India and Anr.

52

as follows:

“20. It is to be stated that similar views are expressed in

the Report submitted in March 2002 by the National

52 (2003)4 SCC 399

55

Commission to Review the Working of the Constitution

appointed by the Union Government for reviewing the

working of the Constitution. Relevant recommendations

are as under:

“Successes and failures

4.4. During the last half-a-century, there have

been thirteen general elections to the Lok

Sabha and a much large number to various

State Legislative Assemblies. We can take

legitimate pride in that these have been

successful and generally acknowledged to be

free and fair. But, the experience has also

brought to the fore many distortions, some

very serious, generating a deep concern in

many quarters. There are constant

references to the unhealthy role of

money power, muscle power and mafia

power and to criminalisation, corruption,

communalism and casteism.”

46. The speech of the then Prime Minister Shri Atal Behari

Vajpayee on this aspect was also noted in para 48 of the above

judgment which is as follows:

“Mr Divan in course of his arguments, had raised some

submissions on the subject — ‘Criminalisation of Politics’

and participation of criminals in the electoral process as

candidates and in that connection, he had brought to our

notice the order of the Election Commission of India dated

28-8-1997. … — ‘Whither Accountability’, published in The

Pioneer, Shri Atal Behari Vajpayee had called for a national

debate on all the possible alternatives for systematic

changes to cleanse our democratic governing system of its

present mess. He has expressed his dissatisfaction that

neither Parliament nor the State Vidhan Sabhas are doing,

with any degree of competence or commitment, what they

are primarily meant to do: legislative function. According to

him, barring exceptions, those who get elected to these

democratic institutions are neither trained, formally or

informally, in law-making nor do they seem to have an

inclination to develop the necessary knowledge and

56

competence in their profession. He has further indicated

that those individuals in society who are generally

interested in serving the electorate and performing

legislative functions are finding it increasingly difficult to

succeed in today’s electoral system and the electoral

system has been almost totally subverted by money

power, muscle power, and vote bank considerations

of castes and communities. Shri Vajpayee also had

indicated that the corruption in the governing structures

has, therefore, corroded the very core of elective

democracy. According to him, the certainty of scope of

corruption in the governing structure has heightened

opportunism and unscrupulousness among political

parties, causing them to marry and divorce one another at

will, seek opportunistic alliances and coalitions often

without the popular mandate. Yet they capture and survive

in power due to inherent systematic flows. He further

stated that casteism, corruption and politicisation

have eroded the integrity and efficacy of our civil

service structure also. The manifestos, policies,

programmes of the political parties have lost

meaning in the present system of governance due

to lack of accountability.”

47. We are thus of the view that interpretation of the Atrocities

Act should promote constitutional values of fraternity and

integration of the society. This may require check on false

implications of innocent citizens on caste lines.

Issue of anticipatory bail

48. In the light of the above, we first consider the question

whether there is an absolute bar to the grant of anticipatory bail

in which case the contention for revisiting the validity of the said

57

provision may need consideration in the light of decisions of this

Court relied upon by learned amicus.

49. Section 18 of the Atrocities Act containing bar against grant

of anticipatory bail is as follows:

“Section 438 of the Code not to apply to persons

committing an offence under the Act. – Nothing in

Section 438 of the Code shall apply in relation to any

case involving the arrest of any person on an

accusation of having committed an offence under this

Act.”

50. In Balothia (supra), Section 18 was held not to be violative

of Articles 14 and 21 of the Constitution. It was observed that

exclusion of Section 438 Cr.P.C. in connection with offences under

the Act had to be viewed in the context of prevailing social

conditions and the apprehension that perpetrators of such

atrocities are likely to threaten and intimidate the victims and

prevent or obstruct them in the prosecution of these offenders, if

they are granted anticipatory bail. Referring to the Statement of

Objects and Reasons, it was observed that members of SC and ST

are vulnerable and are denied number of civil rights and they are

subjected to humiliation and harassment. They assert their rights

58

and demand statutory protection. Vested interests try to cow

them down and terrorise them. There was increase in disturbing

trend of commission of atrocities against members of SC and ST.

Thus, the persons who are alleged to have committed such

offences can misuse their liberty, if anticipatory bail is granted.

They can terrorise the victims and prevent investigation.

51. Though we find merit in the submission of learned amicus

that judgment of this Court in Ram Krishna Balothia (supra)

may need to be revisited in view of judgments of this Court,

particularly Maneka Gandhi (supra), we consider it unnecessary

to refer the matter to the larger Bench as the judgment can be

clarified in the light of law laid down by this Court. Exclusion of

anticipatory bail has been justified only to protect victims of

perpetrators of crime. It cannot be read as being applicable to

those who are falsely implicated for extraneous reasons and have

not committed the offence on prima facie independent scrutiny.

Access to justice being a fundamental right, grain has to be

separated from the chaff, by an independent mechanism. Liberty

of one citizen cannot be placed at the whim of another. Law has

59

to protect the innocent and punish the guilty. Thus considered,

exclusion has to be applied to genuine cases and not to false

ones. This will help in achieving the object of the law.

52. If the provisions of the Act are compared as against certain

other enactments where similar restrictions are put on

consideration of matter for grant of anticipatory bail or grant of

regular bail, an interesting situation emerges. Section 17(4) of

the Terrorist and Disruptive Activities (Prevention) Act, 1985

(“TADA” for short – since repealed) stated “…nothing in Section

438 of the Code shall apply in relation to any case involving the

arrest of any person on an accusation of having committed an

offence punishable under the provisions of this Act…”. Section

17(5) of the TADA Act put further restriction on a person accused

of an offence punishable under the TADA Act being released on

regular bail and one of the conditions was: Where the Public

Prosecutor opposes the application for grant of bail, the court had

to be satisfied that there were reasonable grounds for believing

that the accused was not guilty of such offence and that he was

not likely to commit any such offence while on bail. The

60

provisions of the Unlawful Activities (Prevention) Act, 1967 (for

short “the UAPA Act”), namely under Section 43D(4) and 43D(5)

are similar to the aforesaid Sections 17(4) and 17(5) of the TADA

Act. Similarly the provisions of Maharashtra Control of Organised

Crime Act, 1999 (for short “MCOC Act”), namely, Sections 21(3)

and 21(4) are also identical in terms. Thus the impact of release

of a person accused of having committed the concerned offences

under these special enactments was dealt with by the Legislature

not only at the stage of consideration of the matter for

anticipatory bail but even after the arrest at the stage of grant of

regular bail as well. The provisions of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short “the NDPS Act) are,

however, distinct in that the restriction under Section 37 is at a

stage where the matter is considered for grant of regular bail. No

such restriction is thought of and put in place at the stage of

consideration of matter for grant of anticipatory bail. On the

other hand, the provisions of the Act are diametrically opposite

and the restriction in Section 18 is only at the stage of

consideration of matter for anticipatory bail and no such

restriction is available while the matter is to be considered for

61

grant of regular bail. Theoretically it is possible to say that an

application under Section 438 of the Code may be rejected by the

Court because of express restrictions in Section 18 of the Act but

the very same court can grant bail under the provisions of Section

437 of the Code, immediately after the arrest. There seems to be

no logical rationale behind this situation of putting a fetter on

grant of anticipatory bail whereas there is no such prohibition in

any way for grant of regular bail. It is, therefore, all the more

necessary and important that the express exclusion under Section

18 of the Act is limited to genuine cases and inapplicable where

no prima facie case is made out.

53. We have no quarrel with the proposition laid down in the said

judgment that persons committing offences under the Atrocities

Act ought not to be granted anticipatory bail in the same manner

in which the anticipatory bail is granted in other cases punishable

with similar sentence. Still, the question remains whether in

cases where there is no prima facie case under the Act, bar under

Section 18 operates can be considered. We are unable to read

the said judgment as laying down that exclusion is applicable to

62

such situations. If a person is able to show that, prima facie, he

has not committed any atrocity against a member of SC and ST

and that the allegation was mala fide and prima facie false and

that prima facie no case was made out, we do not see any

justification for applying Section 18 in such cases. Consideration

in the mind of this Court in Balothia (supra) is that the

perpetrators of atrocities should not be granted anticipatory bail

so that they may not terrorise the victims. Consistent with this

view, it can certainly be said that innocent persons against whom

there was no prima facie case or patently false case cannot be

subjected to the same treatment as the persons who are prima

facie perpetrators of the crime.

54. In view of decisions in Vilas Pandurang Pawar (supra)

and Shakuntla Devi (supra), learned ASG has rightly stated

that there is no absolute bar to grant anticipatory bail if no prima

facie case is made out inspite of validity of Section 18 of the

Atrocities Act being upheld.

63

55. In Hema Mishra versus State of U.P.

53

, it has been

expressly laid down that inspite of the statutory bar against grant

of anticipatory bail, a Constitutional Court is not debarred from

exercising its jurisdiction to grant relief. This Court considered the

issue of anticipatory bail where such provision does not apply.

Reference was made to the view in Lal Kamlendra Pratap

Singh versus State of Uttar Pradesh and Ors.

54

to the

effect that interim bail can be granted even in such cases without

accused being actually arrested. Reference was also made to

Kartar Singh versus State of Punjab

55

to the effect that

jurisdiction under Article 226 is not barred even in such cases.

56. It is well settled that a statute is to be read in the context of

the background and its object. Instead of literal interpretation,

the court may, in the present context, prefer purposive

interpretation to achieve the object of law. Doctrine of

proportionality is well known for advancing the object of Articles

14 and 21. A procedural penal provision affecting liberty of

53 (2014) 4 SCC 453 – paras 21, 34 to 36

54 (2009) 4 SCC 437

55 (1994) 3 SCC 569 – para 368 (17)

64

citizen must be read consistent with the concept of fairness and

reasonableness.

57. A Constitution Bench of this Court in Kedar Nath versus

State of Bihar

56 observed:

“26. It is also well settled that in interpreting an

enactment the Court should have regard not merely

to the literal meaning of the words used, but also

take into consideration the antecedent history of

the legislation, its purpose and the mischief it seeks

to suppress [vide (1) Bengal Immunity Company

Limited v. State of Bihar[1955 2 SCR 603] and (2)

R.M.D. Chamarbaugwala v. Union of India[1957 SCR

930]. Viewed in that light, we have no hesitation in

so construing the provisions of the sections

impugned in these cases as to limit their application

to acts involving intention or tendency to create

disorder, or disturbance of law and order, or

incitement to violence.

27. We may also consider the legal position, as it

should emerge, assuming that the main Section

124-A is capable of being construed in the literal

sense in which the Judicial Committee of the Privy

Council has construed it in the cases referred to

above. On that assumption, is it not open to this Court to

construe the section in such a way as to avoid the alleged

unconstitutionality by limiting the application of the

section in the way in which the Federal Court intended to

apply it? In our opinion, there are decisions of this Court

which amply justify our taking that view of the legal

position. This Court, in the case of R.M.D.

Chamarbaugwalla v. Union of India has examined in detail

the several decisions of this Court, as also of the courts in

America and Australia. After examining those decisions,

this Court came to the conclusion that if the impugned

provisions of a law come within the constitutional powers

of the legislature by adopting one view of the words of the

56 AIR 1962 SC 955 : 1962 Supp (2) SCR 769

65

impugned section or Act, the Court will take that view of

the matter and limit its application accordingly, in

preference to the view which would make it

unconstitutional on another view of the interpretation of

the words in question. In that case, the Court had to

choose between a definition of the expression “Prize

Competitions” as limited to those competitions which were

of a gambling character and those which were not. The

Court chose the former interpretation which made the rest

of the provisions of the Act, Prize Competitions Act (42 of

1955), with particular reference to Sections 4 and 5 of the

Act and Rules 11 and 12 framed thereunder, valid. The

Court held that the penalty attached only to those

competitions which involved the element of gambling and

those competitions in which success depended to a

substantial degree on skill were held to be out of the

purview of the Act. The ratio decidendi in that case, in

our opinion, applied to the case in hand insofar as

we propose to limit its operation only to such

activities as come within the ambit of the

observations of the Federal Court, that is to say,

activities involving incitement to violence or

intention or tendency to create public disorder or

cause disturbance of public peace.”

58. In the present context, wisdom of legislature in creating an

offence cannot be questioned but individual justice is a judicial

function depending on facts. As a policy, anticipatory bail may be

excluded but exclusion cannot be intended to apply where a

patently malafide version is put forward. Courts have inherent

jurisdiction to do justice and this jurisdiction cannot be intended

to be excluded. Thus, exclusion of Court’s jurisdiction is not to be

read as absolute.

66

59. There can be no dispute with the proposition that mere

unilateral allegation by any individual belonging to any caste,

when such allegation is clearly motivated and false, cannot be

treated as enough to deprive a person of his liberty without an

independent scrutiny. Thus, exclusion of provision for anticipatory

bail cannot possibly, by any reasonable interpretation, be treated

as applicable when no case is made out or allegations are

patently false or motivated. If this interpretation is not taken, it

may be difficult for public servants to discharge their bona fide

functions and, in given cases, they can be black mailed with the

threat of a false case being registered under the Atrocities Act,

without any protection of law. This cannot be the scenario in a

civilized society. Similarly, even a non public servant can be black

mailed to surrender his civil rights. This is not the intention of

law. Such law cannot stand judicial scrutiny. It will fall foul of

guaranteed fundamental rights of fair and reasonable procedure

being followed if a person is deprived of life and liberty. Thus,

literal interpretation cannot be preferred in the present situation.

67

60. Applying the above well known principle, we hold that the

exclusion of Section 438 Cr.P.C. applies when a prima facie case of

commission of offence under the Atrocities Act is made. On the

other hand, if it can be shown that the allegations are prima facie

motivated and false, such exclusion will not apply.

61. The Gujarat High Court in Pankaj D Suthar (supra)

considered the question whether Section 18 of the Atrocities Act

excludes grant of anticipatory bail when on prima facie judicial

scrutiny, allegations are found to be not free from doubt. The said

question was answered as follows:

“4. Now undoubtedly it is true that the alleged

offence under the Atrocities Act is a very serious

offence and if indeed the complaint is ultimately

found to be truthful and genuine one, there cannot

be any two views about the strictest possible view

taken in such matter. Not only that but if the complaint

is also found to be prima facie dependable one that is to

say, free from doubt, then as a warranted under Section 18

of the Atrocities Act, even the anticipatory bail to such

accused has got to be refused. In fact, the Parliament in

its utmost wisdom has rightly evidenced great

concern and anxiety over the atrocities which are

going on unabatedly on S.Cs. & S.Ts. by inserting

the provisions under Section 18 of the Atrocities Act

disabling the accused from obtaining the

anticipatory bail under Section 438 of the Code. This

indeed is a welcome step and in accordance with the

axiomatic truth, viz., ‘the disease grown desperately

must be treated desperately else not’. The disease of

commission of offences by way of atrocities against the

68

members of S.Cs. and S.Ts. are unabatedly going on since

last hundreds of years and in the recent past have become

alarmingly increasing and has become so rampant, breath

taking and has reached such a desperate pass that it

indeed needed a very stringent and desperate legislation

which could help save the situation by effectively providing

the legal protection to such cursed, crushed and

downtrodden members of S.Cs. & S.Ts. communities. Under

such circumstances, it is equally the paramount duty of

every Court to see that it responds to legislative concern

and call and ensure effective implementation of the

Atrocities Act, by seeing that the provisions enshrined in

the said Act are duly complied with. But then, what

according to this Court is the most welcome step by

way of collective wisdom of the Parliament in

ushering social beneficial legislation cannot be

permitted to be abused and converted into an

instrument to blackmail to wreak some personal

vengeance for settling and scoring personal

vendetta or by way of some counter-blasts against

opponents some public servants, as prima facie

appears to have been done in the present case. The

basic questions in such circumstances therefore areWhether

a torch which is lighted to dispel the

darkness can it be permitted to set on fire the

innocent surroundings? Whether a knife an

instrument which is meant for saving human life by

using the same in the course of operation by a

surgeon, can it be permitted to be used in taking

the life of some innocent? The very same fundamental

question arises in the facts and circumstances of this case

also, viz., ‘whether any statute like the present Atrocities

Act, especially enacted for the purposes of protecting

weaker sections of the society hailing from S.C. & S.T.

communities can be permitted to be abused by

conveniently converting the same into a weapon of

wrecking personal vengeance on the opponents?’ The

answer to this question is undoubtedly and

obviously ‘No’. Under such circumstances, if the

Courts are to apply such provision of Section 18 of

the Atrocities Act quite mechanically and blindly

merely guided by some general and popular

prejudices based on some words and tricky

accusations in the complaint on mere assumptions

without intelligently scrutinising and testing the

probabilities, truthfulness, genuineness and

69

otherwise dependability of the accusations in the

complaint etc., then it would be simply unwittingly

and credulously playing in the hands of some

scheming unscrupulous complainant in denying the

justice. Virtually, it would be tentamount to abdicating

and relegating its judicial duty, fanction of doing justice in

such matters in favour and hands of such unscrupulous

complainant by making him a Judge in his own cause. This

is simply unthinkable and therefore impermissible.

Whether the provisions of any particular Act and for

that purpose the rules made thereunder are

applicable to the facts of a particular case or not, is

always and unquestionably a matter which lies

strictly and exclusively within the domain of ‘judicial

consideration-discretion’ and therefore neither mere

allegations made in the complainant by themselves

nor bare denials by the accused can either

automatically vest or divest the Court from

discharging its ultimate judicial function-duty to

closely scrutinise and test the prima facie

dependability of the allegations made in the

complaint and reach its own decision.

5. Now reverting to the contents of the complaint and

attending circumstances high lighted by Mr. Pardiwala, the

learned Advocate for the petitioner-accused, the same

prima facie clearly demonstrates that at this stage the

story revealed by the complainant docs not appear to be

free from doubt. If that is so, very applicability of the

Atrocities Act is rendered doubtful. If that is the situation,

then to refuse the anticipatory bail on mere accusations

and assumptions that the petitioner-accused has

committed an offence under the Atrocities Act would be

absolutely illegal, unjudicious, unjust and ultimately a

travesty of justice. No Court can ever embark upon such

hazards of refusing anticipatory bail on mere doubtful

accusations and assumptions that Atrocities Act is

applicable. No Court could and should be permitted to bo

‘spoon-fed’ by the complainant whatever he wants to feed

and swallow whatever he wants the Court to gulp down to

attain and secure his unjust mala fide motivated ends.

Section 18 of the Atrocities Act gives a vision,

direction and mandate to the Court as to the cases

where the anticipatory bail must be refused, but it

does not and it certainly cannot whisk away the

right of any Court to have a prima facie judicial

70

scrutiny of the allegations made in the complaint.

Nor can it under its hunch permit provisions of law

being abused to suit the mala fide motivated ends

of some unscrupulous complainant. In this case also

if indeed this Court been satisfied with the story

revealed by the complainant as truthful and

genuine, then anticipatory bail would have been

surely rejected right forth as a matter of course, but

since the submissions of Mr. Pardiwala have

considerable force, this Court has no alternative but

to accept the same in the larger interests of justice

to see that merely on the count of the firsthand

prejudice attempted to be caused by allegations in

the complaint, the petitioner-accused is not denied

his precious right of the anticipatory bail.

6. In view of the aforesaid discussion, though in a

way the learned A.P.P. is absolutely right when he

submitted that no anticipatory bail can be granted

to the petitioner-accused because of Section 18 of

the Atrocities Act, in the opinion of this Court, his

submission fails because at this stage it is too

difficult to rule out the probability of the

accusations levelled by the complainant against the

petitioner-accused having committed an offence

under the Atrocities Act being false, vexatious and

by way of counterblast as stemming from the

ulterior motive to humiliate, disgrace and

demoralise the petitioner-accused who is a public

servant. When that is the result and position, there

is no question of bypassing of Section 18 of the

Atrocities Act arises as apprehended by the learned

A.P.P. Taking into consideration the facts and

circumstances of this particular case, and in view of

the aforesaid discussion, this Misc. Criminal

Application for anticipatory bail deserves to be

allowed and is allowed accordingly”

62. The above view was reiterated in Dr. N.T. Desai (supra),

after considering the judgment of this Court in Balothia (supra).

It was observed that even taking Section 18 of the Atrocities Act

to be valid, if the Court, prima-facie, found the story of

71

complainant to be doubtful, the accused could not be allowed to

be arrested. Doing so would be unjudicial. It was observed;-

“8. To deal first with the preliminary objection raised

by the learned A.P.P. Mr. Desai, it may be stated that

the Supreme Court’s decision rendered in the case of

State of M.P. & Anr. v. Ramkishan Balothia (supra)

stands on altogether quite different footing where

the vires of Section 18 of the Act came to be

decided. The Apex Court has ultimately held that

Section 18 of the Act was not ultra vires. This Court

is indeed in respectful agreement with the aforesaid

decision of the Supreme Court….. ….. ….

…. … … …

But then having closely examined the complaint

more particularly in the context and light of the

backdrop of the peculiar facts situation highlighted

by the petitioner leading ultimately to filing of the

complaint, this Court prime facie at the very outset

is at some doubt about the complainant’s story and

yet if it readily, mechanically like a gullible child

accepts the allegations made in the complaint at its

face value, it would be surely blundering and

wandering away from the path of bail-justice, making

itself readily available in the hands of the scheming

complainant who on mere asking will get arrested

accused on some false allegations of having

committed non-bailable offence, under the Atrocity

Act, meaning thereby the Court rendering itself quite

deaf, dumb and blind mortgaging its commonsense,

ordinary prudence with no perception for justice,

denying the rightful protection to the accused

becoming ready pawn pliable in the hands of

sometime scheming, unscrupulous complainants !!!

This sort of a surrender to prima facie doubtful

allegation in the complaint is not at all a judicial

approach, if not unjudicial !!…”

72

63. The above judgments correctly lays down the scope of

exclusion as well as permissibility of anticipatory bail in cases

under the Atrocities Act and are consistent with the view we take.

Section 18 of the Atrocities Act has, thus, to be read and

interpreted in this manner. At this stage, we may note that we

have seen a contra view of the Division Bench of the said High

Court in Pravinchandra N Solanki and Ors. versus State of

Gujarat

57

. We are unable to accept the said view for the reasons

already given and overrule the same.

64. Concept of “Due process” and principles of 8th Amendment

of the U.S. Constitution have been read by this Court as part of

guarantee under Article 21 of the Constitution. In State of

Punjab versus Dalbir Singh

58

, it was observed :

“80. It has already been noted hereinabove that in our

Constitution the concept of “due process” was

incorporated in view of the judgment of this Court in

Maneka Gandhi[(1978) 1 SCC 248] The principles of the

Eighth Amendment have also been incorporated in our

laws. This has been acknowledged by the Constitution

Bench of this Court in Sunil Batra [(1978) 4 SCC 494] In

Sunil Batra case, SCC para 52 at p. 518 of the Report,

Krishna Iyer, J. speaking for the Bench held as follows:

57 (2012)1 GLR 499

58 (2012) 3 SCC 346

73

“52. True, our Constitution has no ‘due process’ clause or

the Eighth Amendment; but, in this branch of law, after

Cooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC

248] and Maneka Gandhi the consequence is the same.

For what is punitively outrageous, scandalisingly unusual

or cruel and rehabilitatively counterproductive, is

unarguably unreasonable and arbitrary and is shot down

by Articles 14 and 19 and if inflicted with procedural

unfairness, falls foul of Article 21.”

xxx xxxx xxxx

84. The principle of “due process” is an emanation from

the Magna Carta doctrine. This was accepted in American

jurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p.

90 : US p. 142). Again this was acknowledged in Planned

Parenthood of Southeastern Pennsylvania v. Casey [120 L

Ed 2d 674] wherein the American Supreme Court

observed as follows:

“The guarantees of due process, though

having their roots in Magna Carta’s ‘per

legem terrae’ and considered as procedural

safeguards ‘against executive usurpation

and tyranny’, have in this country ‘become

bulwarks also against arbitrary legislation’.”

85. All these concepts of “due process” and the concept

of a just, fair and reasonable law have been read by this

Court into the guarantee under Articles 14 and 21 of the

Constitution….”

65. Presumption of innocence is a human right. No doubt,

placing of burden of proof on accused in certain circumstances

may be permissible but there cannot be presumption of guilt so as

to deprive a person of his liberty without an opportunity before an

independent forum or Court. In Noor Aga versus State of

Punjab

59

, it was observed:

59 (2008) 16 SCC 417

74

“33. Presumption of innocence is a human right as

envisaged under Article 14(2) of the International

Covenant on Civil and Political Rights. It, however, cannot

per se be equated with the fundamental right and liberty

adumbrated in Article 21 of the Constitution of India. It,

having regard to the extent thereof, would not militate

against other statutory provisions (which, of course, must

be read in the light of the constitutional guarantees as

adumbrated in Articles 20 and 21 of the Constitution of

India).

xxxx xxxx xxxx

35. A right to be presumed innocent, subject to the

establishment of certain foundational facts and burden of

proof, to a certain extent, can be placed on an accused. It

must be construed having regard to the other

international conventions and having regard to the fact

that it has been held to be constitutional. Thus, a statute

may be constitutional but a prosecution thereunder may

not be held to be one. Indisputably, civil liberties and

rights of citizens must be upheld.

Xxxx xxxx xxxx

43. The issue of reverse burden vis-à-vis the human

rights regime must also be noticed. The approach of the

common law is that it is the duty of the prosecution to

prove a person guilty. Indisputably, this common law

principle was subject to parliamentary legislation to the

contrary. The concern now shown worldwide is that

Parliaments had frequently been making inroads on the

basic presumption of innocence. Unfortunately, unlike

other countries no systematic study has been made in

India as to how many offences are triable in the court

where the legal burden is on the accused. In the United

Kingdom it is stated that about 40% of the offences

triable in the Crown Court appear to violate the

presumption. (See “The Presumption of Innocence in

English Criminal Law”, 1996, CRIM. L. REV. 306, at p.

309.)

75

44. In Article 11(1) of the Universal Declaration of Human

Rights (1948) it is stated:

“Everyone charged with a penal offence has the right to

be presumed innocent until proved guilty according to

law….”

Similar provisions have been made in Article 6.2 of the

European Convention for the Protection of Human Rights

and Fundamental Freedoms (1950) and Article 14.2 of the

International Covenant on Civil and Political Rights

(1966).

Xxx xxxx xxx xxx

47. We may notice that Sachs, J. in State v. Coetzee

[1997(2) LRC 593] explained the significance of the

presumption of innocence in the following terms:

“There is a paradox at the heart of all criminal procedure

in that the more serious the crime and the greater the

public interest in securing convictions of the guilty, the

more important do constitutional protections of the

accused become. The starting point of any balancing

enquiry where constitutional rights are concerned must

be that the public interest in ensuring that innocent

people are not convicted and subjected to ignominy and

heavy sentences massively outweighs the public interest

in ensuring that a particular criminal is brought to book.

… Hence the presumption of innocence, which serves not

only to protect a particular individual on trial, but to

maintain public confidence in the enduring integrity and

security of the legal system. Reference to the prevalence

and severity of a certain crime therefore does not add

anything new or special to the balancing exercise. The

perniciousness of the offence is one of the givens,

against which the presumption of innocence is pitted

from the beginning, not a new element to be put into the

scales as part of a justificatory balancing exercise. If this

were not so, the ubiquity and ugliness argument could be

used in relation to murder, rape, car-jacking,

housebreaking, drug-smuggling, corruption … the list is

unfortunately almost endless, and nothing would be left

of the presumption of innocence, save, perhaps, for its

relic status as a doughty defender of rights in the most

trivial of cases.”

76

In view of the above, an accused is certainly entitled to show

to the Court, if he apprehends arrest, that case of the complainant

was motivated. If it can be so shown there is no reason that the

Court is not able to protect liberty of such a person. There cannot

be any mandate under the law for arrest of an innocent. The law

has to be interpreted accordingly.

66. We have already noted the working of the Act in the last

three decades. It has been judicially acknowledged that there are

instances of abuse of the Act by vested interests against political

opponents in Panchayat, Municipal or other elections, to settle

private civil disputes arising out of property, monetary disputes,

employment disputes and seniority disputes60. It may be noticed

that by way of rampant misuse complaints are ‘largely being filed

particularly against Public Servants/quasi judicial/judicial officers

with oblique motive for satisfaction of vested interests’

61

.

67. Innocent citizens are termed as accused, which is not

intended by the legislature. The legislature never intended to use

the Atrocities Act as an instrument to blackmail or to wreak

60 Dhiren Praful bhai (supra)

61 Sharad (supra)

77

personal vengeance. The Act is also not intended to deter public

servants from performing their bona fide duties. Thus, unless

exclusion of anticipatory bail is limited to genuine cases and

inapplicable to cases where there is no prima facie case was

made out, there will be no protection available to innocent

citizens. Thus, limiting the exclusion of anticipatory bail in such

cases is essential for protection of fundamental right of life and

liberty under Article 21 of the Constitution.

68. Accordingly, we have no hesitation in holding that exclusion

of provision for anticipatory bail will not apply when no prima

facie case is made out or the case is patently false or mala fide.

This may have to be determined by the Court concerned in facts

and circumstances of each case in exercise of its judicial

discretion. In doing so, we are reiterating a well established

principle of law that protection of innocent against abuse of law is

part of inherent jurisdiction of the Court being part of access to

justice and protection of liberty against any oppressive action

such as mala fide arrest. In doing so, we are not diluting the

efficacy of Section 18 in deserving cases where Court finds a case

78

to be prima facie genuine warranting custodial interrogation and

pre-trial arrest and detention.

69. In Lal Kamlendra Pratap(supra), this Court held that even

if there is no provision for anticipatory bail, the Court can grant

interim bail in suitable cases. It was observed :

“6. Learned counsel for the appellant apprehends that the

appellant will be arrested as there is no provision for

anticipatory bail in the State of U.P. He placed reliance on a

decision of the Allahabad High Court in Amarawati v. State

of U.P. [2005 Crl LJ 755 (All)] in which a seven-Judge Full

Bench of the Allahabad High Court held that the court, if it

deems fit in the facts and circumstances of the case, may

grant interim bail pending final disposal of the bail

application. The Full Bench also observed that arrest is not

a must whenever an FIR of a cognizable offence is lodged.

The Full Bench placed reliance on the decision of this Court

in Joginder Kumar v. State of U.P.[(1992) 4 SCC 260]

7. We fully agree with the view of the High Court in

Amarawati case and we direct that the said decision be

followed by all courts in U.P. in letter and spirit, particularly

since the provision for anticipatory bail does not exist in U.P.

8. In appropriate cases interim bail should be granted

pending disposal of the final bail application, since arrest

and detention of a person can cause irreparable loss to a

person’s reputation, as held by this Court in Joginder Kumar

case. Also, arrest is not a must in all cases of cognizable

offences, and in deciding whether to arrest or not the police

officer must be guided and act according to the principles

laid down in Joginder Kumar case.”

70. In Vikas Pandurang case (supra), it was observed :

79

“10. …..When an offence is registered against a person under the

provisions of the SC/ST Act, no court shall entertain an application

for anticipatory bail, unless it prima facie finds that such an

offence is not made out.”

71. Law laid down by this Court in Joginder Kumar (supra),

Arnesh Kumar (supra), Rini Johar (supra), Siddharam

Satlingappa (supra) to check uncalled for arrest cannot be

ignored and clearly applies to arrests under the Atrocities Act.

Protection of innocent is as important as punishing the guilty.

72. In Dadu alias Tulsidas versus State of Maharashtra

62

while considering the validity of exclusion of bail by an appellate

court in NDPS cases, this Court noted the submission that the

legislature could not take away judicial powers by statutory

prohibition against suspending the sentence during the pendency

of the appeal. This is an essential judicial function. The relevant

observations are:

“16. Learned counsel appearing for the parties were more

concerned with the adverse effect of the section on the

powers of the judiciary. Impliedly conceding that the

section was valid so far as it pertained to the appropriate

Government, it was argued that the legislature is not

competent to take away the judicial powers of the court by

statutory prohibition as is shown to have been done vide

the impugned section. Awarding sentence, upon

62 (2000)8SCC 437

80

conviction, is concededly a judicial function to be

discharged by the courts of law established in the country.

It is always a matter of judicial discretion, however, subject

to any mandatory minimum sentence prescribed by the

law. The award of sentence by a criminal court wherever

made subject to the right of appeal cannot be interfered or

intermeddled with in a way which amounts to not only

interference but actually taking away the power of judicial

review. Awarding the sentence and consideration of its

legality or adequacy in appeal is essentially a judicial

function embracing within its ambit the power to suspend

the sentence under the peculiar circumstances of each

case, pending the disposal of the appeal.”

73. On the above reasoning, it is difficult to hold that the

legislature wanted exclusion of judicial function of going into

correctness or otherwise of the allegation in a criminal case

before liberty of a person is taken away. The legislature could not

have intended that any unilateral version should be treated as

conclusive and the person making such allegation should be the

sole judge of its correctness to the exclusion of judicial function of

courts of assessing the truth or otherwise of the rival contentions

before personal liberty of a person is adversely affected.

74. It is thus patent that in cases under the Atrocities Act,

exclusion of right of anticipatory bail is applicable only if the case

is shown to bona fide and that prima facie it falls under the

Atrocities Act and not otherwise. Section 18 does not apply where

81

there is no prima facie case or to cases of patent false implication

or when the allegation is motivated for extraneous reasons. We

approve the view of the Gujarat High Court in Pankaj D Suthar

(supra) and Dr. N.T. Desai (supra). We clarify the Judgments in

Balothia (supra) and Manju Devi (supra) to this effect.

Issue of safeguards against arrest and false implications

75. We may now deal with the issue as to what directions, if any,

are necessary, apart from clarifying the legal position with regard

to anticipatory bail. The under privileged need to be protected

against any atrocities to give effect to the Constitutional ideals.

The Atrocities Act has been enacted with this objective. At the

same time, the said Act cannot be converted into a charter for

exploitation or oppression by any unscrupulous person or by

police for extraneous reasons against other citizens as has been

found on several occasions in decisions referred to above. Any

harassment of an innocent citizen, irrespective of caste or

religion, is against the guarantee of the Constitution. This Court

must enforce such a guarantee. Law should not result in caste

hatred. The preamble to the Constitution, which is the guiding

82

star for interpretation, incorporates the values of liberty, equality

and fraternity.

76. We are satisfied, in the light of statistics already referred as

well as cited decisions and observations of the Standing

Committee of

Parliament that there is need to safeguard innocent citizens

against false implication and unnecessary arrest for which there is

no sanction under the law which is against the constitutional

guarantee and law of arrest laid down by this Court.

77. We are conscious that normal rule is to register FIR if any

information discloses commission of a cognizable offence. There

are however, exceptions to this rule. In Lalita Kumari versus

State of U.P.63

, it was observed :

“115. Although, we, in unequivocal terms, hold that

Section 154 of the Code postulates the mandatory

registration of FIRs on receipt of all cognizable offences,

yet, there may be instances where preliminary inquiry may

be required owing to the change in genesis and novelty of

crimes with the passage of time. One such instance is in

the case of allegations relating to medical negligence on

the part of doctors. It will be unfair and inequitable to

prosecute a medical professional only on the basis of the

allegations in the complaint.

63 (2014) 2 SCC 1

83

xxxx xxxx xxxx

117. In the context of offences relating to corruption, this

Court in P. Sirajuddin [(1970) 1 SCC 595] expressed the

need for a preliminary inquiry before proceeding against

public servants.

xxxx xxxx xxxx

120.6. As to what type and in which cases preliminary

inquiry is to be conducted will depend on the facts and

circumstances of each case. The category of cases in

which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in

initiating criminal prosecution, for example, over 3 months’

delay in reporting the matter without satisfactorily

explaining the reasons for delay.

The aforesaid are only illustrations and not

exhaustive of all conditions which may warrant

preliminary inquiry.

120.7. While ensuring and protecting the rights of the

accused and the complainant, a preliminary inquiry should

be made time-bound and in any case it should not exceed

7 days. The fact of such delay and the causes of it must

be reflected in the General Diary entry.”

78. The above view is consistent with earlier judgments in

State of U.P. versus Bhagwant Kishore Joshi

64

and P.

Sirajuddin versus State of Madras

65

. In Bhagwant Kishore

it was observed:

64 AIR 1964 SC 221 = 1964(3) SCR 221

65 (1970) 1 SCC 595

84

“… … …In the absence of any prohibition in the

Code, express or implied, I am of opinion that it

is open to a Police Officer to make preliminary

enquiries before registering an offence and

making a full scale investigation into it. No

doubt, Section 5A of the Prevention of Corruption

Act was enacted for preventing harassment to a

Government servant and with this object in view

investigation, except with the previous

permission of a Magistrate, is not permitted to

be made by an officer below the rank of a

Deputy Superintendent of Police. Where

however, a Police Officer makes some

preliminary enquiries, does not arrest or even

question an accused or question any witnesses

but merely makes a few discreet enquiries or

looks at some documents without making any

notes, it is difficult to visualize how any possible

harassment or even embarrassment would result

therefrom to the suspect or the accused person.

… …”

In Sirajuddin (supra) it was observed:

“17. … …Before a public servant, whatever be his

status, is publicly charged with acts of dishonesty

which amount to serious misdemeanour or

misconduct of the type alleged in this case and a

first information is lodged against him, there must be

some suitable preliminary enquiry into the

allegations by a responsible officer. The lodging of

such a report against a person, specially one who

like the appellant occupied the top position in a

department, even if baseless, would do incalculable

harm not only to the officer in particular but to the

department he belonged to, in general. If the

Government had set up a Vigilance and AntiCorruption

Department as was done in the State of

Madras and the said department was entrusted with

enquiries of this kind, no exception can of taken to

an enquiry by officers of this department but any

such enquiry must proceed in a fair and reasonable

manner. … …”

85

79. We are of the view that cases under the Atrocities Act also

fall in exceptional category where preliminary inquiry must be

held. Such inquiry must be time-bound and should not exceed

seven days in view of directions in Lalita Kumari (supra).

80. Even if preliminary inquiry is held and case is registered,

arrest is not a must as we have already noted. In Lalita Kumari

(supra) it was observed :

“107. While registration of FIR is mandatory, arrest of the

accused immediately on registration of FIR is not at all

mandatory. In fact, registration of FIR and arrest of an

accused person are two entirely different concepts under

the law, and there are several safeguards available against

arrest. Moreover, it is also pertinent to mention that an

accused person also has a right to apply for “anticipatory

bail” under the provisions of Section 438 of the Code if the

conditions mentioned therein are satisfied. Thus, in

appropriate cases, he can avoid the arrest under that

provision by obtaining an order from the court.”

81. Accordingly, we direct that in absence of any other

independent offence calling for arrest, in respect of offences

under the Atrocities Act, no arrest may be effected, if an accused

person is a public servant, without written permission of the

appointing authority and if such a person is not a public servant,

86

without written permission of the Senior Superintendent of Police

of the District. Such permissions must be granted for recorded

reasons which must be served on the person to be arrested and to

the concerned court. As and when a person arrested is produced

before the Magistrate, the Magistrate must apply his mind to the

reasons recorded and further detention should be allowed only if

the reasons recorded are found to be valid. To avoid false

implication, before FIR is registered, preliminary enquiry may be

made whether the case falls in the parameters of the Atrocities

Act and is not frivolous or motivated.

Consideration of present case

82. As far as the present case is concerned, we find merit in the

submissions of learned amicus that the proceedings against the

appellant are liable to be quashed.

Conclusions

83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of

process of court and are quashed.

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ii) There is no absolute bar against grant of

anticipatory bail in cases under the Atrocities Act if

no prima facie case is made out or where on

judicial scrutiny the complaint is found to be prima

facie mala fide. We approve the view taken and

approach of the Gujarat High Court in Pankaj D

Suthar (supra) and Dr. N.T. Desai (supra) and

clarify the judgments of this Court in Balothia

(supra) and Manju Devi (supra);

Iii) In view of acknowledged abuse of law of arrest in

cases under the Atrocities Act, arrest of a public

servant can only be after approval of the

appointing authority and of a non-public servant

after approval by the S.S.P. which may be granted

in appropriate cases if considered necessary for

reasons recorded. Such reasons must be

scrutinized by the Magistrate for permitting further

detention.

88

iv) To avoid false implication of an innocent, a

preliminary enquiry may be conducted by the DSP

concerned to find out whether the allegations

make out a case under the Atrocities Act and that

the allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be

actionable by way of disciplinary action as well as

contempt.

The above directions are prospective.

84. Before parting with the judgment, we place on record our

sincere appreciation for the invaluable assistance rendered by

learned Amicus and also assistance rendered by learned counsel

who have appeared in this case.

The appeal is accordingly allowed in the above terms.

……………………………….J.

[ADARSH KUMAR GOEL]

……………………………….J.

[UDAY UMESH LALIT]

NEW DELHI;

MARCH 20, 2018

Note: Highlighting in quotations is by us

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