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

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sanction  for  his  prosecution  under  the  provisions  of  the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)  Act,  1989  and  for  certain  other  connected offences.  The said matter was dealt with by the petitioner and sanction was declined.  This led to another complaint by the respondent no. 2 against the petitioner under the said provisions.  The quashing of the said complaint has been declined by the High Court.

The  question  which  has  arisen  in  the  course  of consideration  of  this  matter  is  whether  any  unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity and if such allegation  is  falsely  made  what  is  protection  available against such abuse.

Needless to say that if the allegation is to be acted upon, the proceedings can result in arrest or prosecution of the person  and  have  serious  consequences  on  his  right  to liberty  even  on  a  false  complaint  which  may  not  be intended by law meant for protection of a bona fide victim.

The question is whether this will be just and fair procedure under Article 21 of the Constitution of India or there can be procedural  safeguards  so  that  provisions  of  Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not abused for extraneous considerations. Issue notice returnable on 10th January, 2018.

In  the  meanwhile,  there  shall  be  stay  of  further

proceedings.

Issue notice to Attorney General of India also as the issue involves interpretation of a central statute.

Mr. Amrendra Sharan, learned senior counsel is requested to assist the Court as amicus.  Mr. Sharan will be at liberty to have assistance of Mr. Amit Anand Tiwari, Advocate. … …”

3. Though certain facts are stated while framing the question

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

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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  non-

scheduled 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

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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.

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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

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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:

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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.

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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.

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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.  

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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

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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 Haryana1,

Badan Singh @ Baddo  versus State of U.P. & Ors.2, Adri

Dharan Das  versus  State of West Bengal3, Tata Chemicals

Ltd.  versus Commissioner of Customs4 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

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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  Maharashtra7,  D.

Venkatasubramaniam   versus   M.  K.  Mohan

Krishnamachari8, 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

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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

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

versus  Ram Krishna Balothia11 but the said judgment was in

ignorance  of  the  Constitution  Bench  judgment  in  Gurbaksh

Singh Sibbia etc.  versus  State of Punjab12.  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

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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

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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

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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

State14 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 Gujarat15 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 Gujarat16 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 Gujarat17 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 Maharashtra18 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  non-

Government  Officers/Servants  (numeric  data  prepared  on  the

basis of information available).

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

National  Crime Records Bureau,  Ministry of Home Affairs under

the  headings  “Police  Disposal  of  Crime/Atrocities  against

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

Disposal of Crime/Atrocities against STs Cases (State/UT-

wise) – 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

Singh19 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  Ahluwalia21.   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 Singh23 permit grant of

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

genuine  cases  anticipatory  bail  can  be  granted.   He  also

submitted that the Government of India had issued advisories on

3rd February, 2005, 1st April,  2010 and 23rd May, 2016 and also

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

2016  which  provides  for  creation  of  Special  Courts  as  well  as

Exclusive Special Courts.  Referring to the data submitted by the

National Crime Records Bureau (NCRB) it was further submitted

that out of the total  number of complaints investigated by the

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

category and also belonging to the ST category, in almost 15-16% 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 Singh29, 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 State30 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

3rd Report  of the National  Police Commission to the effect  that

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

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

arrest could be unjustified only in grave offences to inspire the

confidence of the victim, to check the accused from committing

further crime and to prevent him from absconding.  The National

Police Commission recommended that the police officer making

arrest should record reasons.  This Court observed that no arrest

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

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

arrest must be avoided.  This requirement was read into Article

2142.  In  Arnesh Kumar  versus  State  of  Bihar43,  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   UOI45, 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  Maharashtra50 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. …

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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

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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.

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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

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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,

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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.     

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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  anti- national.  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

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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

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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

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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

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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

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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

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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

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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

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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.   

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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  Punjab55 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)

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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 Bihar56 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

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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.

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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.

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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 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

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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

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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 !!...”

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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

Gujarat57.  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 Singh58, 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

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“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

Punjab59, it was observed: 59 (2008) 16 SCC 417

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“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.)

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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.”

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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)

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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 :

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“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 Maharashtra62

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

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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

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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

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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

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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  Joshi64  and  P.

Sirajuddin versus State of Madras65.   In Bhagwant Kishore

it was observed:

64 AIR 1964 SC 221 = 1964(3) SCR 221 65 (1970) 1 SCC 595

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“… … …In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries  before  registering  an  offence  and making  a  full  scale  investigation  into  it.   No doubt, Section 5A of the Prevention of Corruption Act was enacted for preventing harassment to a Government servant and with this object in view investigation,  except  with  the  previous permission of a Magistrate, is not permitted to be  made  by  an  officer  below  the  rank  of  a Deputy  Superintendent  of  Police.   Where however,  a  Police  Officer  makes  some preliminary  enquiries,  does  not  arrest  or  even question an accused or question any witnesses but  merely  makes  a  few  discreet  enquiries  or looks  at  some documents  without  making  any notes, it is difficult to visualize how any possible harassment or even embarrassment would result therefrom to the suspect or the accused person. … …”

In Sirajuddin (supra) it was observed:

“17. … …Before a public  servant,  whatever be his status,  is  publicly  charged  with  acts  of  dishonesty which  amount  to  serious  misdemeanour  or misconduct  of  the type alleged in  this  case and a first information is lodged against him, there must be some  suitable  preliminary  enquiry  into  the allegations  by a responsible officer.  The lodging of such a report  against  a person,  specially  one who like  the  appellant  occupied  the  top  position  in  a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department  he  belonged  to,  in  general.  If  the Government  had  set  up  a  Vigilance  and  Anti- Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can of taken to an enquiry  by  officers  of  this  department  but  any such enquiry must proceed in a fair and reasonable manner. … …”

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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,

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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.   

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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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