DR. SUBHASH KASHINATH MAHAJAN versus THE STATE OF MAHARASHTRA AND ANR. on 20 March 2018

[2018] 4 S.C.R. 877

DR. SUBHASH KASHINATH MAHAJAN

v.

THE STATE OF MAHARASHTRA AND ANR.

(Criminal Appeal No. 416 of 2018)

MARCH 20, 2018

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

The Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act, 1989 – s.18 – Exclusion of anticipatory bail, incases of false implications – Procedural safeguards – Respondentno.2-complainant, a govt. employee belonging to Scheduled Caste,lodged FIR in 2006 against his two senior officers (non-ScheduledCaste) when they made adverse entry in his Annual ConfidentialReport – Sanction to proceed against the said two senior officers,refused by appellant in 2011 – Present FIR lodged by respondentno.2 against the appellant in 2016 – Appellant sought quashing ofproceedings, which was rejected by High Court – Held: There is noabsolute bar against grant of anticipatory bail in cases under theAtrocities Act if no prima facie case is made out or where on judicialscrutiny the complaint is found to be prima facie mala fide – Exclusionof anticipatory bail is justified only to protect victims of perpetratorsof crime in genuine cases– It cannot be made applicable to thosewho are falsely implicated for extraneous reasons – To avoid falseimplication of an innocent, a preliminary enquiry may be conductedby the DSP concerned to find out whether the allegations make outa case under the Atrocities Act and that the allegations are notfrivolous or motivated – Arrest of a public servant can only be afterapproval of the appointing authority and of a non-public servantafter approval by the S.S.P. which may be granted in appropriatecases if considered necessary for reasons recorded – Such reasonsmust be scrutinized by Magistrate for permitting further detention – In the instant case, the proceedings against appellant are clearabuse of process of court and are quashed – Code of CriminalProcedure, 1973 – s.438 and ss.482, 41, 41A, 197 – Penal Code,1860 – ss.182, 192, 193, 203 and s.219 r/w s.34 – Constitution ofIndia – Arts.14, 15, 16 and 21 – The Scheduled Castes and TheScheduled Tribes (Prevention of Atrocities) Rules, 1995 – r.12(4) –Protection of Civil Rights Act, 1955 – Terrorist and Disruptive

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AActivities (Prevention) Act, 1985 – s.17(4), (5) – Unlawful Activities(Prevention) Act, 1967 – ss.43D(4), (5) – Maharashtra Control ofOrganised Crime Act, 1999 – ss.21(3), (4) – Narcotic Drugs andPsychotropic Substances Act, 1985 – s.37.

Code of Criminal Procedure, 1973 – ss.41, 41A – Power ofBarrest – Held: Enforcement of a legislation has to be consistentwith the fundamental rights – Power of arrest is to be exercisedwith caution – Mere unilateral allegation by any individualbelonging to any caste, when such allegation is clearly motivatedand false, cannot deprive a person of his liberty without anindependent scrutiny – Scheduled Castes and the ScheduledCTribes(Prevention of Atrocities) Act, 1989.

Interpretation of Statutes – Literal interpretation vis-à-vispurposive interpretation – Held: A statute is to be read in the contextof the background and its object – Exclusion of provision foranticipatory bail cannot possibly, by any reasonable interpretation,Dbe treated as applicable when no case is made out or allegationsare patently false or motivated – Doctrines/Principles – Doctrineof proportionality.

Criminal Trial – Presumption of innocence – Held: Presumptionof innocence is a human right – Placing of burden of proof onEaccused in certain circumstances may be permissible but there cannotbe presumption of guilt so as to deprive a person of his liberty –Protection of innocent is as important as punishing the guilty –Human rights.

Conclusion

Constitution of India – Powers/Role of Supreme Court to issueFappropriate orders or directions for enforcement of fundamentalrights – Held: Role of Supreme Court travels beyond merely disputesettling and directions can be issued which are not directly in conflictwith a valid statute – Power to declare law carries with it, within thelimits of duty, to make law when none exists.

GScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – Purpose and object of – Discussed.

Allowing the appeal, the Court

HELD: Consideration of the issue whether directions canbe issued by this Court to protect fundamental right under ArticleH21 against uncalled for false implication and arrests 1.1 Jurisdiction of Supreme Court to issue appropriateorders or directions for enforcement of fundamental rights is abasic feature of the Constitution. Supreme Court, as the ultimateinterpreter of the Constitution, has to uphold the constitutionalrights and values. Articles 14, 19 and 21 of the Constitutionrepresent the foundational values which form the basis of therule of law. Contents of the said rights have to be interpreted ina manner which enables the citizens to enjoy the said rights. Rightto equality and life and liberty have to be protected against anyunreasonable procedure, even if it is enacted by the legislature.The substantive as well as procedural laws must conform toArticles 14 and 21. Any abrogation of the said rights has to benullified by this Court by appropriate orders or directions. Powerof the legislature has to be exercised consistent with thefundamental rights. Enforcement of a legislation has also to beconsistent with the fundamental rights. Undoubtedly, the SupremeCourt has jurisdiction to enforce the fundamental rights of lifeand liberty against any executive or legislative action. Theexpression ‘procedure established by law’ under Article 21implies just, fair and reasonable procedure. [Para 31] [913-G-H;914-A-D]

1.2 The Supreme Court is not expected to adopt a passiveor negative role and remain bystander or a spectator if violationof rights is observed. It is necessary to fashion new tools andstrategies so as to check injustice and violation of fundamentalrights. No procedural technicality can stand in the way ofenforcement of fundamental rights. Role of Supreme Court travelsbeyond merely dispute settling and directions can certainly beissued which are not directly in conflict with a valid statute. Powerto declare law carries with it, within the limits of duty, to makelaw when none exists. There are innumerable occasions whenSupreme Court has issued directions for enforcement offundamental rights e.g., directions regarding functioning of castescrutiny Committee; directions to regulate appointment of lawofficers; directions to regulate powers of this Court and HighCourts in designating Senior Advocates; guidelines have beenissued for the welfare of a child accompanying his/her mother inimprisonment; directions for checking trafficking of women andchildren; for night shelters for the homeless; directions to check AB

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Amalnutrition in children; directions to provide medical assistanceby Government run hospitals; directions for protection of humanrights of prisoners; directions for speedy trial of under trials.[Paras 32, 35] [914-D-F; 917-D-F]

Maneka Gandhi vs. UOI (1978) 1 SCC 248 : [1978] 2BSCR 621 – followed.

1.3 In Joginder Kumar, it was observed that horizon ofhuman rights is expanding. There are complaints of violation ofhuman rights because of indiscriminate arrests. The law of arrestis of balancing individual rights, liberties and privileges, duties,Cobligations and responsibilities. On the one side is the socialneed to check a crime, on the other there is social need forprotection of liberty, oppression and abuse by the police and theother law enforcing agencies. The 3[rd] Report of the National PoliceCommission was noted to the effect that power of arrest was oneof the chief sources of corruption of police. 60% of arrests wereDunnecessary or unjustified. The arrest could be justified only ingrave offences to inspire the confidence of the victim, to checkthe accused from committing further crime and to prevent himfrom absconding. The National Police Commission recommendedthat the police officer making arrest should record reasons. ItEwas observed that no arrest can be made merely because it islawful to do so. The exercise of power must be for a valid purpose.Except in heinous offences arrest must be avoided. Thisrequirement was read into Article 21. In Arnesh Kumar, it wasobserved that arrest brings humiliation, curtails freedom and castsscars forever. It is considered a tool for harassment andFoppression. The drastic power is to be exercised with caution.Power of arrest is a lucrative source of corruption. Referring tothe amendment of law in Section 41 Cr.P.C., in the light ofrecommendations of the Law Commissions, it was directed thatarrest may be justified only if there is ‘credible information’ orG‘reasonable suspicion’ and if arrest was necessary to preventfurther offence or for proper investigation or to check interferencewith the evidence. Reasons are required to be recorded. However,compliance on the ground is far from satisfactory for obviousreasons. The scrutiny by the Magistrates is also not adequate.[Para 36] [918-A-F]H

Joginder Kumar v. State of U.P. (1994) 4 SCC 260;Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 :[2014] 8 SCR 128 – relied on.

Further consideration of potential impact of working of ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act,1989on spreading casteism

2. Working of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 should not result inperpetuating casteism which can have an adverse impact onintegration of the society and the constitutional values. Secularismis a basic feature of the Constitution. Irrespective of caste orreligion, the Constitution guarantees equality in its preamble aswell as other provisions including Articles 14-16. The Constitutionenvisages a cohesive, unified and casteless society. Interpretationof the Atrocities Act should promote constitutional values offraternity and integration of the society. This may require checkon false implications of innocent citizens on caste lines. [Paras42, 47] [929-H; 930-A-B; 933-B-C]

Issue of anticipatory bail

Issue of anticipatory bail

3.1 Section 18 of the Atrocities Act contains bar againstgrant of anticipatory bail. Exclusion of anticipatory bail has beenjustified only to protect victims of perpetrators of crime. It cannotbe read as being applicable to those who are falsely implicatedfor extraneous reasons and have not committed the offence onprima facie independent scrutiny. Access to justice being afundamental right, grain has to be separated from the chaff, by anindependent mechanism. Liberty of one citizen cannot be placedat the whim of another. Law has to protect the innocent and punishthe guilty. Thus considered, exclusion has to be applied to genuinecases and not to false ones. This will help in achieving the objectof the law. If the provisions of the Act are compared as againstcertain other enactments where similar restrictions are put onconsideration of matter for grant of anticipatory bail or grant ofregular bail, an interesting situation emerges. [Paras 49-52] [933-D-E; 934-C-E]

3.2 Section 17(4) of the Terrorist and Disruptive Activities(Prevention) Act, 1985 (“TADA” - since repealed) stated A

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A“…nothing in Section 438 of CrPC shall apply in relation to anycase involving the arrest of any person on an accusation of havingcommitted an offence punishable under the provisions of thisAct…”. Section 17(5) of the TADA Act put further restriction ona person accused of an offence punishable under the TADA Actbeing released on regular bail and one of the conditions was:BWhere the Public Prosecutor opposes the application for grantof bail, the court had to be satisfied that there were reasonablegrounds for believing that the accused was not guilty of suchoffence and that he was not likely to commit any such offencewhile on bail. The provisions of the Unlawful ActivitiesC(Prevention) Act, 1967, namely under Section 43D(4) and 43D(5)are similar to the aforesaid Sections 17(4) and 17(5) of the TADAAct. Similarly the provisions of Maharashtra Control of OrganisedCrime Act, 1999, namely, Sections 21(3) and 21(4) are also identicalin terms. Thus the impact of release of a person accused of having committed the concerned offences under these specialDenactments was dealt with by the Legislature not only at the stageof consideration of the matter for anticipatory bail but even afterthe arrest at the stage of grant of regular bail as well. Theprovisions of the Narcotic Drugs and Psychotropic SubstancesAct, 1985 are however, distinct in that the restriction underESection 37 is at a stage where the matter is considered for grantof regular bail. No such restriction is thought of and put in placeat the stage of consideration of matter for grant of anticipatorybail. On the other hand, the provisions of the Act are diametricallyopposite and the restriction in Section 18 is only at the stage ofconsideration of matter for anticipatory bail and no such restrictionFis available while the matter is to be considered for grant ofregular bail. Theoretically it is possible to say that an applicationunder Section 438 of CrPC may be rejected by the Court becauseof express restrictions in Section 18 of the Atrocities Act but thevery same court can grant bail under the provisions of SectionG437 of CrPC, immediately after the arrest. There seems to beno logical rationale behind this situation of putting a fetter ongrant of anticipatory bail whereas there is no such prohibition inany way for grant of regular bail. It is, therefore, all the morenecessary and important that the express exclusion under Section18 of the Atrocities Act is limited to genuine cases andH

inapplicable where no prima facie case is made out. [Para 52][934-E-H; 935-A-E]

inapplicable where no prima facie case is made out. [Para 52][934-E-H; 935-A-E]

3.3 If a person is able to show that, prima facie, he has notcommitted any atrocity against a member of SC and ST and thatthe allegation was mala fide and prima facie false and that primafacie no case was made out, no justification is seen for applyingSection 18 in such cases. The perpetrators of atrocities shouldnot be granted anticipatory bail so that they may not terrorisethe victims. Consistent with this view, it can certainly be saidthat innocent persons against whom there was no prima faciecase or patently false case cannot be subjected to the sametreatment as the persons who are prima facie perpetrators of thecrime. [Para 53] [935-F-H; 936-A]

3.4 It is well settled that a statute is to be read in thecontext of the background and its object. Instead of literalinterpretation, the court may, in the present context, preferpurposive interpretation to achieve the object of law. Doctrine ofproportionality is well known for advancing the object of Articles14 and 21. A procedural penal provision affecting liberty of citizenmust be read consistent with the concept of fairness andreasonableness. In the present context, wisdom of legislature increating an offence cannot be questioned but individual justice isa judicial function depending on facts. As a policy, anticipatorybail may be excluded but exclusion cannot be intended to applywhere a patently malafide version is put forward. Courts haveinherent jurisdiction to do justice and this jurisdiction cannot beintended to be excluded. Thus, exclusion of Court’s jurisdictionis not to be read as absolute. There can be no dispute with theproposition that mere unilateral allegation by any individualbelonging to any caste, when such allegation is clearly motivatedand false, cannot be treated as enough to deprive a person of hisliberty without an independent scrutiny. Thus, exclusion ofprovision for anticipatory bail cannot possibly, by any reasonableinterpretation, be treated as applicable when no case is made outor allegations are patently false or motivated. If this interpretationis not taken, it may be difficult for public servants to dischargetheir bona fide functions and, in given cases, they can beblackmailed with the threat of a false case being registered under A

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Athe Atrocities Act, without any protection of law. This cannot bethe scenario in a civilized society. Similarly, even a non publicservant can be blackmailed to surrender his civil rights. This isnot the intention of law. Such law cannot stand judicial scrutiny.It will fall foul of guaranteed fundamental rights of fair andreasonable procedure being followed if a person is deprived ofBlife and liberty. Thus, literal interpretation cannot be preferredin the present situation. [Paras 56, 58 and 59] [936-D-E; 938-B-F]

3.5 The exclusion of Section 438 Cr.P.C. applies when aprima facie case of commission of offence under the AtrocitiesAct is made. On the other hand, if it can be shown that theCallegations are prima facie motivated and false, such exclusionwill not apply. Section 18 of the Atrocities Act has, thus, to beread and interpreted in this manner. [Paras 60, 63] [938-F-G;943-C-D]

3.6 Concept of “Due process” and principles of 8[th]DAmendment of the U.S. Constitution have been read by this Courtas part of guarantee under Article 21 of the Constitution.Presumption of innocence is a human right. No doubt, placing ofburden of proof on accused in certain circumstances may bepermissible but there cannot be presumption of guilt so as toEdeprive a person of his liberty without an opportunity before anindependent forum or Court. In view of the above, an accused iscertainly entitled to show to the Court, if he apprehends arrest,that case of the complainant was motivated. If it can be so shownthere is no reason that the Court is not able to protect liberty ofsuch a person. There cannot be any mandate under the law forFarrest of an innocent. The law has to be interpreted accordingly.In the working of the Act in the last three decades, it has beenjudicially acknowledged that there are instances of abuse of theAct by vested interests against political opponents in Panchayat,Municipal or other elections, to settle private civil disputesGarising out of property, monetary disputes, employment disputesand seniority disputes. It may be noticed that by way of rampantmisuse complaints are ‘largely being filed particularly againstPublic Servants/quasi judicial/judicial officers with oblique motivefor satisfaction of vested interests’. [Paras 64-66] [943-E; 944-F;946-G-H; 947-A-B]H

3.7 Innocent citizens are termed as accused, which is notintended by the legislature. The legislature never intended touse the Atrocities Act as an instrument to blackmail or to wreakpersonal vengeance. The Act is also not intended to deter publicservants from performing their bona fide duties. Thus, unlessexclusion of anticipatory bail is limited to genuine cases andinapplicable to cases where there is no prima facie case was madeout, there will be no protection available to innocent citizens.Thus, limiting the exclusion of anticipatory bail in such cases isessential for protection of fundamental right of life and libertyunder Article 21 of the Constitution. Accordingly, it is held thatexclusion of provision for anticipatory bail will not apply when noprima facie case is made out or the case is patently false or malafide. This may have to be determined by the Court concerned infacts and circumstances of each case in exercise of its judicialdiscretion. In doing so, a well established principle of law is beingreiterated that protection of innocent against abuse of law is partof inherent jurisdiction of the Court being part of access to justiceand protection of liberty against any oppressive action such asmala fide arrest. In doing so, the efficacy of Section 18 is notbeing diluted in deserving cases where Court finds a case to beprima facie genuine warranting custodial interrogation and pre-trial arrest and detention. Protection of innocent is as importantas punishing the guilty. [Paras 67, 68 and 71] [947-B-F; 948-F-G]

3.8 It is difficult to hold that the legislature wanted exclusionof judicial function of going into correctness or otherwise of theallegation in a criminal case before liberty of a person is takenaway. The legislature could not have intended that any unilateralversion should be treated as conclusive and the person makingsuch allegation should be the sole judge of its correctness to theexclusion of judicial function of courts of assessing the truth orotherwise of the rival contentions before personal liberty of aperson is adversely affected. It is thus patent that in cases underthe Atrocities Act, exclusion of right of anticipatory bail isapplicable only if the case is shown to bona fide and that primafacie it falls under the Atrocities Act and not otherwise. Section18 does not apply where there is no prima facie case or to casesof patent false implication or when the allegation is motivated forextraneous reasons. [Paras 73, 74] [949-E-H]

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AIssue of safeguards against arrest and false implications 4.1 The under privileged need to be protected against anyatrocities to give effect to the Constitutional ideals. The AtrocitiesAct has been enacted with this objective. At the same time, thesaid Act cannot be converted into a charter for exploitation orBoppression by any unscrupulous person or by police forextraneous reasons against other citizens as has been found onseveral occasions. Any harassment of an innocent citizen,irrespective of caste or religion, is against the guarantee of theConstitution. This Court must enforce such a guarantee. Lawshould not result in caste hatred. The preamble to theCConstitution, which is the guiding star for interpretation,incorporates the values of liberty, equality and fraternity. Thereis need to safeguard innocent citizens against false implicationand unnecessary arrest for which there is no sanction under thelaw which is against the constitutional guarantee and law of arrestDlaid down by this Court. Normal rule is to register FIR if anyinformation discloses commission of a cognizable offence. Thereare however, exceptions to this rule and cases under theAtrocities Act also fall in exceptional category where preliminaryinquiry must be held. Such inquiry must be time-bound and shouldnot exceed seven days. Even if preliminary inquiry is held andEcase is registered, arrest is not a must. [Paras 75, 76, 77, 79 and80] [950-B-E; 952-G]

4.2 Accordingly, it is directed that in absence of any otherindependent offence calling for arrest, in respect of offences underthe Atrocities Act, no arrest may be effected, if an accused personFis a public servant, without written permission of the appointingauthority and if such a person is not a public servant, withoutwritten permission of the Senior Superintendent of Police of theDistrict. Such permissions must be granted for recorded reasonswhich must be served on the person to be arrested and to theGconcerned court. As and when a person arrested is producedbefore the Magistrate, the Magistrate must apply his mind tothe reasons recorded and further detention should be allowedonly if the reasons recorded are found to be valid. To avoid falseimplication, before FIR is registered, preliminary enquiry maybe made whether the case falls in the parameters of the AtrocitiesHAct and is not frivolous or motivated. [Para 81] [953-C-E]

DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OFMAHARASHTRA AND ANR.

A

Consideration of present case

5. The proceedings against the appellant are liable to bequashed. [Para 82] [953-E-F]

Conclusions

6. Conclusions are as follows:

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i)Proceedings in the present case are clear abuse ofprocess of court and are quashed.

ii) There is no absolute bar against grant of anticipatorybail in cases under the Atrocities Act if no prima faciecase is made out or where on judicial scrutiny theCcomplaint is found to be prima facie mala fide. Theview taken and approach of the Gujarat High Court inPankaj D Suthar and Dr. N.T. Desai is approved andthe judgments of this Court in Balothia and Manju Deviare clarified;

iii) In view of acknowledged abuse of law of arrest in casesDunder the Atrocities Act, arrest of a public servant canonly be after approval of the appointing authority andof a non-public servant after approval by the S.S.P.which may be granted in appropriate cases if considerednecessary for reasons recorded. Such reasons mustEbe scrutinized by the Magistrate for permitting furtherdetention.

iv) To avoid false implication of an innocent, a preliminaryenquiry may be conducted by the DSP concerned tofind out whether the allegations make out a case underthe Atrocities Act and that the allegations are notfrivolous or motivated.

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v) Any violation of direction (iii) and (iv) will be actionableby way of disciplinary action as well as contempt.The above directions are prospective. [Para 83] [953-F-H;954-A-D]

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Pravinchandra N Solanki and Ors. v. State of Gujarat(2012)1 GLR 499 – overruled.

State of M. P. v. Ram Krishna Balothia (1995) 3 SCC 221 :[1995] 1 SCR 897; Manju Devi v. Onkarjit SinghAhluwalia (2017) 13 SCC 439 : [2017] 2 SCR 703 – clarified.

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Union of India v. Raghubir Singh (1989) 2 SCC 754 :[1989] 3 SCR 316; Indra Sawhney and Ors v. Unionof India and Ors. (1992) Suppl. 3 SCC 217 : [1992]2 Suppl. SCR 454; Kedar Nath v. State of Bihar [1962]Suppl. 2 SCR 769; Lalita Kumari v. State of U.P. (2014)2 SCC 1: [2013] 14 SCR 713 – followed.

Dr. N.T. Desai v. State of Gujarat (1997) 2 GLR 942;Pankaj D Suthar v. State of Gujarat (1992)1 GLR 405– approved.

D.K. Basu v. State of W.B. (1997) 1 SCC 416 : [1996]10 Suppl. SCR 284; Subramanian Swamy v. UOI (2016)7 SCC 221 : [2016] 3 SCR 865; Vilas Pandurang Pawarand Anr. v. State of Maharashtra and Ors. (2012) 8SCC 795 : [2012] 8 SCR 270; Shakuntla Devi v.Baljinder Singh (2014) 15 SCC 521; Bandhua MuktiMorcha v. UOI (1984) 3 SCC 161 : [1984] 2 SCR 67;Vishakha v. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; Lakshmi Kant Pandey v.UOI (1983) 2 SCC 244; Common Cause v. UOI (1996)1 SCC 753 : [1996] 1 SCR 89; M.C. Mehta v. State ofT.N. (1996) 6 SCC 756 : [ 1996] 9 Suppl. SCR 726;Supreme Court Bar Asson. v. UOI (1998) 4 SCC 409 :[1998] 2 SCR 795; Dayaram vs. Sudhir Batham (2012)1 SCC 333 : [2011] 15 SCR 1092; Rajesh Kumar v.State (2011) 13 SCC 706; Siddharam SatlingappaMhetre v. State of Maharashtra (2011) 1 SCC 694 :[2010] 15 SCR 201; Rini Johar & Ors. v. State of M.P.& Ors. (2016) 11 SCC 703; Hema Mishra v. State ofU.P. (2014) 4 SCC 453 : [2014] 1 SCR 465; Noor Agav. State of Punjab (2008) 16 SCC 417: [2008]10 SCR 379;Dadu alias Tulsidas v. State ofMaharashtra (2000) 8 SCC 437; State of U.P. v.Bhagwant Kishore Joshi [1964] 3 SCR 221; P.Sirajuddin v. State of Madras (1970) 1 SCC 595 : [1971]1 SCR 304 – relied on.

Joti Prasad v. State of Haryana (1993) Suppl. 2 SCC497; Badan Singh @ Baddo v. State of U.P. & Ors.2002 CriLJ 1392; Adri Dharan Das v. State of WestBengal (2005) 4 SCC 303 : [2005] 2 SCR 188; Tata

Chemicals Ltd. v. Commissioner of Customs (2015) 11SCC 628 : [2015] 7 SCR 132; Ganga Saran & SonsPvt. Ltd. v. Income Tax Officer & Ors. (1981) 3 SCC143 : [1981] 3 SCR 564; M. C. Abraham v. State ofMaharashtra (2003) 2 SCC 649 : [2002] 5 Suppl.SCR 677; D. Venkatasubramaniam v. M. K. MohanKrishnamachari (2009) 10 SCC 488 : [2009] 14SCR 441; Gurbaksh Singh Sibbia etc. v. State of Punjab[1980] 3 SCR 383; Nikesh Tarachand Shah v. Unionof India and Anr. (2017) 13 SCALE 609 : 2017 SCCOnLine SC 1355; Jones v. State 2004 SCC OnLineMad 922 : 2004 CriLJ 2755; Dhiren Prafulbhai Shahv. State of Gujarat 2016 CriLJ 2217; Sharad v. Stateof Maharashtra 2015(4) BomCR(Crl) 545; State ofJharkhand and Anr. v. Govind Singh (2005)10 SCC437 : [2004] 6 Suppl. SCR 651; Rohitash Kumar andOrs v. Om Prakash Sharma and Ors. (2013) 11 SCC451 : [2012] 13 SCR 47; Madhuri Patil v. TribalDevelopment (1994) 6 SCC 241 : [1994] 3 Suppl.SCR 50; State of Punjab v. Brijeshwar Singh Chahal(2016) 6 SCC 1 : [2016] 4 SCR 685; Indira Jaising v.Supreme Court of India (2017) 9 SCC 766; R.D.Upadhyay v. State of A.P. (2007) 15 SCC 337: [2006]3 SCR 1132; Bachpan Bachao Andolan v. UOI (2011)5 SCC 1 : [2011] 5 SCR 353; Union for Civil Libertiesv. UOI (2010) 5 SCC 318; People’s Union for CivilLiberties v. UOI (2004) 12 SCC 104; Paschim BangaKhet Mazdoor Samity v. State of W.B. (1996) 4 SCC 37: [1996] 2 Suppl. SCR 331; Sunil Batra v. Delhi Admn.(1978) 4 SCC 494 : [1979] 1 SCR 392; HussainaraKhatoon (IV) v. Home Secy. State of Bihar (1980) 1 SCC98 : [1979] 3 SCR 532; People’s Union for CivilLiberties (PUCL) and Anr. Etc. v. Union of India andAnr. (2003) 4 SCC 399 : [2003] 2 SCR 1136; LalKamlendra Pratap Singh v. State of Uttar Pradesh andOrs. (2009) 4 SCC 437 : [2009] 4 SCR 1027; KartarSingh v. State of Punjab (1994) 3 SCC 569 : [1994]2 SCR 375; State of Punjab v. Dalbir Singh (2012) 3SCC 346 : [2012] 4 SCR 608 – referred to.

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DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OFMAHARASHTRA AND ANR.

(2017) 9 SCC 766[2006] 3 SCR 1132[2011] 5 SCR 353(2010) 5 SCC 318(2004) 12 SCC 104[1996] 2 Suppl. SCR 331[1979] 1 SCR 392 [1979] 3 SCR 532(1994) 4 SCC 260[2014] 8 SCR 128[1996] 10 Suppl. SCR 284[2016] 3 SCR 865[1992] 2 Suppl. SCR 454[2003] 2 SCR 1136[2012] 8 SCR 270(2014) 15 SCC 521[2014] 1 SCR 465[2009] 4 SCR 1027[1994] 2 SCR 375[1962] Suppl. 2 SCR 769(2012)1 GLR 499[2012] 4 SCR 608 [2008] 10 SCR 379[2010] 15 SCR 201(2016) 11 SCC 703(2000) 8 SCC 437(1992) 1 GLR 405

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 416 of 2018.

CFrom the Judgment and Order dated 05.05.2017 of the High Courtof Judicature at Bombay in Criminal Application No. 1015 of 2016.

Maninder Singh, ASG, Amerander Sharan (AC), C. U. Singh,Sr. Advs., Amit Anand Tiwari, Shashwat Singh, Samarth Khanna, AprajitaMukherjee, Ms. Garima Bode Dey, M. Y. Deshmukh, NandkumarDN. Deshmukh, Shakti Pandey, Shrikant R. Deshmukh, Yatin M. Jagtap,R. Balasubramanian, Shekhar Vyas, Prabhas Bajaj, Akshay Amritanshu,Ms. Aarti Sharma, M. K. Maroria, Arpit Rai, Nishant RamakantraoKatneshwarkar, Abhay Anturkar, Abhay Anturkar & Associates, GauravAgrawal, C. George Thomas, P. Angibabu, P.V. Saravanaraja, NeeleshSingh Rao, Ms. Manisha T. Karia, Ms. Nidhi Nagpal, Ms. Saumya,EShashank Mangal, Mayk Samy K., K. Muthu Ganesa Pandian,P. Somasunder, Advs., for the appearing parties.

The Judgment of the Court was delivered by ADARSH KUMAR GOEL, J. 1. This appeal has beenFpreferred against the order dated 5[th] May, 2017 of the High Court ofJudicature at Bombay in Criminal Application No.1015 of 2016.

2. On 20[th] November, 2017 the following order was passed bythis Court:- “Heard learned counsel for the parties.G

Certain adverse remarks were recorded against respondentno. 2-Bhaskar Karbhari Gaidwad by the Principal and Headof the Department of the College of Pharmacy whererespondent no. 2 was employed. Respondent No. 2 soughtsanction for his prosecution under the provisions of theHScheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 and for certain other connectedoffences. The said matter was dealt with by the petitionerand sanction was declined. This led to another complaintby the respondent no. 2 against the petitioner under the saidprovisions. The quashing of the said complaint has beendeclined by the High Court.

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

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

The question is whether this will be just and fair procedureunder Article 21 of the Constitution of India or there can beprocedural safeguards so that provisions of Scheduled Castesand the Scheduled Tribes (Prevention of Atrocities) Act, 1989are not abused for extraneous considerations.

Issue notice returnable on 10[th] January, 2018.

In the meanwhile, there shall be stay of further proceedings.Issue notice to Attorney General of India also as the issueinvolves interpretation of a central statute.

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

3. Though certain facts are stated while framing the questionalready noted, some more facts may be noted. The appellant herein isthe original accused in the case registered at City Police Station, Karadfor the offences punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii)of the Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) 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 wasserving as Director of Technical Education in the State of Maharashtraat the relevant time.

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A4. The second respondent - the complainant is an employee of thedepartment. He was earlier employed as a Store Keeper in theGovernment College of Pharmacy, Karad. He was later posted atGovernment Distance Education Institute, Pune. Dr. Satish Bhise andDr. Kishor Burade, who were his seniors but non-scheduled caste, madeadverse entry in his annual confidential report to the effect that hisBintegrity and character was not good. He lodged FIR with Karad PoliceStation against the said two officers under the Atrocities Act on 4[th]January, 2006 on that ground. The concerned Investigating Officer appliedfor sanction under Section 197 Cr.P.C. against them to the Director ofTechnical Education on 21[st] December, 2010. The sanction was refusedCby the appellant on 20[th] January, 2011. Because of this, ‘C’ SummaryReport was filed against Bhise and Burade which was not accepted bythe court. He then lodged the present FIR against the appellant. Accordingto the complainant, the Director of Technical Education was notcompetent to grant/refuse sanction as the above two persons are Class-Iofficers and only the State Government could grant sanction. Thus,Daccording to him, the appellant committed the offences alleged in the FIRdated 28[th] 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 registeredcomplaint to Karad City Police Station Cr. NO. 3122/09 u/s3(1)9, 3(2)(7)6 of S.C. & S.T. (Prevention of Atrocities) Actand the investigation was done by Shri Bharat Tangade, thenD.Y.S.P. Karad division Karad in the investigation 1) SatishBalkrushna Bhise, then Principal Pharmacy College Karad,2) Kishor Balkrishna Burade, then Professor, PharmacyCollege Karad has been realized as accused in the presentcrime. Investigation officer collect sufficient evidenceagainst both the accused, but both the accused are from Govt.Technical Education department Class 1 Public Servant, sobefore filing charge sheet against them he wrote the letter tothe senior office of the accused u/s 197 of Cr.P.C. to takethe permission at that time Mr. Subhash Kashinath Mahajanwas working as incharge director of the office. Today alsohe is working as same post. Mr. Mahajan does not belongsto S.C. & S.T. but he knew that I belongs to S.C. and S.T.

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In fact both the accused involved in crime No. 3122/09 areworking on class 1 post and to file a charge sheet againstthem 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 togive permission. So Mr. Mahajan send letter to MumbaiOffice. Infact to give the required permission or to refusethe permission is not comes under the jurisdiction of inchargedirection, Technical Education Mumbai. But, Mr. Mahajanmisused his powers so that, accused may be benefited, hetook the decision and refused the permission to file the chargesheet against the accused. So that, investigation officer ShriBharat Tangade fails to submit the charge sheet against the boththe accused, but he complain to submit ‘C’ summary report.”

6. The appellant, after he was granted anticipatory bail, applied tothe High Court under Section 482 Cr.P.C. for quashing the proceedingson the ground that he had merely passed a bonafide administrative orderin his official capacity. His action in doing so cannot amount to an offence,even if the order was erroneous. The High Court rejected the petition.

7. Dealing with the contention that if such cases are not quashed,recording of genuine adverse remarks against an employee who is amember of SC/ST or passing a legitimate administrative order in dischargeof official duties will become difficult and jeopardise the administration,the High Court observed that no public servant or reviewing authorityneed to apprehend any action by way of false or frivolous prosecutionbut the penal provisions of the Atrocities Act could not be faulted merelybecause of possibility of abuse. It was observed that in the facts andcircumstances, inherent power to quash could not be exercised as itmay send a wrong signal to the downtrodden and backward sections ofthe society.

8. We have heard Shri Amrendra Sharan, learned senior counsel,appearing as amicus, Shri Maninder Singh, learned Additional SolicitorGeneral, appearing for the Union of India, Shri C.U. Singh, learned seniorcounsel and the other learned counsel appearing for the intervenors andlearned counsel for the parties and perused the record.

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

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ASubmissions 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 theIndian Penal Code and, thus, the High Court ought to have quashed theBproceedings. He submitted the following table to explain his point:

Provisions of the SC/ST Act Applicability of the provisions in invoked in this case the facts of the case 3. Punishment for offences atrocities. The provision mandates a “false and – 3 [(1) Whoever, not being a frivolous information given by the Cmember of a Scheduled Caste or a public servant”, however in the Scheduled Tribe, - present case, the Petitioner has (ix): gives any false or frivolous denied sanction for prosecution information to any public servant and which clearly does not amount to thereby causes such public servant to false or frivolous information. use his lawful power to the injury or Thus, a case under Section 3(1)(ix) Dannoyance of a member of a of the SC/ST Act is not made out. Scheduled Caste or a Scheduled Tribe; 3(2)(vi): knowingly or having reason Section 3(2)(vi) requires causing of to believe that an offence has been disappearance of evidence with the committed under this Chapter, causes intention of screening the offender any evidence of the commission of from legal punishment, however, in Ethat offence to disappear with the the present case, there is no intention of screening the offender allegation that the petitioner has from legal punishment, or with that caused disappearance of any intention gives any information evidence. Therefore the ingredients respecting the offence which he of Sections 3(2)(vi) is not made out. knows or believes to be false, shall be Fpunishable with the punishment provided for thatoffence;(vii) being a public servant, commits Since no offence under section 3 of any offence under this section, shall the SCST is made out this section be punishable with imprisonment for cannot be attracted. a term which shall not be less than one year but which may extend to the Gpunishment provided for that offence. Provisions of IPC allegedApplicability of the provisions in the facts of instant case182. False information, with A false information is an intent to cause public servant toinformation which h as been H

Ause his lawful power to the givendeliberately with an injury of another person. – intention to deceive. However, Whoever gives to any public in this case denial of sanction for servant any information which he prosecution cannot be construed knows or believes to be false, as a false information in any intending thereby to cause, or way. It is an order of knowing it to be likely that he will administrative authority. Bthereby cause, such public servant Therefore no case is made out – under Section 182 of the code. (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 Cis 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 Dmay extend to six months, or with fine which may extend to one thousand rupees, or with both. 192. Fabricating false evidence. The ingredients of Section 192 –whoever causes any IPC is not made out therefore circumstance to exist or *[makes this section will not apply in the any false entry in any book or present case. It was not a Erecord, or electronic record or judicial proceeding and the makes any document or electronic petitioner has neither fabricated record containing a false false evidence nor made any statement, intending that such false entry in any book, record or circumstance, false entry or false electronic data. Mere exercising statement may appear in evidence of administrative power cannot Fin a judicial proceeding, or in a be construed as fabricating false proceeding taken by law before a evidence. public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person Gwho 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”.

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A193.Punishment for false Since there was no ‘false evidence. – Whoever evidence’, therefore the intentionally gives false evidence possibility of punishment in any stage of a judicial accruing to false evidence is proceeding, or fabricates false ruled out. evidence for the purpose of being Bused 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 Cfalse 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. D203. Giving false information For the reasons already stated respecting an offence hereinabove, the present case committed. – Whoever knowing does not meet the ingredients of or having reason to believe that an this section, therefore is offence has been committed, gives precluded from being prosecuted any information respecting that here. A mere opinion of a senior offence which he knows or officer in an ACR does not Ebelieves to be false, shall be amount to giving false punished with imprisonment of information. either description for a term which may extend to two years, or with fine, or with both. 219. Public servant in judicial The denial of sanction to Fproceeding corruptly making prosecute the two government report, etc., contrary to law. – servants against whom the Whoever, being a public servant, Complainant/ Respondent no. 2 corruptly or maliciously makes or had originally filed an FIR pronounces in any stage of a cannot be construed as making judicial proceeding, any report, corrupt report therefore the case Gorder verdict, or decision which of the petitioner does not fall he knows to be contrary to law, within the ambit of this shall be punished with provision. imprisonment of either description for a term which may extend to seven years, or with fine, or with both. H

11. It was submitted by learned amicus that FIR was lodged afterfive years of the order passed by the appellant. The order was passedon 20[th] January, 2011 while the FIR was lodged on 28[th] March, 2016which further strengthened the case for quashing in addition to the factsand legal contentions noted in the previous para. Moreover, in absenceof any allegation of malafides, even if order passed by the appellant waserroneous proceedings against him are not called for.

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12. Learned amicus submitted that under the scheme of theAtrocities Act, several offences may solely depend upon the version ofthe complainant which may not be found to be true. There may not beany other tangible material. One sided version, before trial, cannot displaceCthe presumption of innocence. Such version may at times be self servingand for extraneous reason. Jeopardising liberty of a person on an untriedunilateral version, without any verification or tangible material, is againstthe fundamental rights guaranteed under the Constitution. Before libertyof a person is taken away, there has to be fair, reasonable and justprocedure. Referring to Section 41(1)(b) Cr.P.C. it was submitted thatDarrest could be effected only if there was ‘credible’ information andonly if the police officer had ‘reason to believe’ that the offence hadbeen committed and that such arrest was necessary. Thus, the powerof arrest should be exercised only after complying with the safeguardsintended under Sections 41 and 41A Cr.P.C. It was submitted that theEexpression ‘reason to believe’ in Section 41 Cr.P.C. had to be read in thelight of Section 26 IPC and judgments interpreting the said expression.The said expression was not at par with suspicion. Reference has beenmade in this regard to Joti Prasad versus State of Haryana[1], BadanSingh @ Baddo versus State of U.P. & Ors.[2], Adri Dharan Dasversus State of West Bengal[3], Tata Chemicals Ltd. versusFCommissioner of Customs[4]and Ganga Saran & Sons Pvt. Ltd. versusIncome Tax Officer & Ors.[5]In the present context, to balance theright of liberty of the accused guaranteed under Article 21, which couldbe taken away only by just fair and reasonable procedure and to checkabuse of power by police and injustice to a citizen, exercise of right ofGarrest was required to be suitably regulated by way of guidelines by thisCourt under Article 32 read with Article 141 of the Constitution. Some 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

Afilters were required to be incorporated to meet the mandate of Articles14 and 21 to strengthen the rule of law.

13. Learned amicus submitted that this Court has generallyacknowledged the misuse of power of arrest and directed that arrestshould not be mechanical. It has been laid down that the exercise ofBpower of arrest requires reasonable belief about a person’s complicityand also about need to effect arrest. Reliance has been placed onJoginder Kumar versus State of U.P.[6], M.C. Abraham versus Stateof Maharashtra[7], D. Venkatasubramaniam versus M. K. MohanKrishnamachari[8], Arnesh Kumar versus State of Bihar[9]and RiniJohar & Ors. versus State of M.P. & Ors.[10]C

14. It was submitted that in the context of the Atrocities Act, inthe absence of tangible material to support a version, to prevent exerciseof arbitrary power of arrest, a preliminary enquiry may be mademandatory. Reasons should be required to be recorded that informationwas credible and arrest was necessary. In the case of public servant,Dapproval of disciplinary authority should be obtained and in other casesapproval of Superintendent of Police should be necessary. While grantingsuch permission, based on a preliminary enquiry, the authority grantingpermission should be satisfied about credibility of the information andalso about need for arrest. If an arrest is effected, while granting remand,the Magistrate must pass a speaking order as to correctness or otherwiseEof the reasons for which arrest is effected. These requirements willenforce right of concerned citizens under Articles 14 and 21 without inany manner affecting genuine objects of the Act.

15. Learned amicus further submitted that Section 18 of theAtrocities Act, which excludes Section 438 Cr.P.C., violates constitutionalFmandate under Articles 14 and 21 and is ultra vires the Constitution.The said provision was upheld in State of M. P. versus Ram KrishnaBalothia[11]but the said judgment was in ignorance of the ConstitutionBench judgment in Gurbaksh Singh Sibbia etc. versus State ofPunjab[12]. If a Court is not debarred from granting anticipatory bail G6 (1994) 4 SCC 2607 (2003) 2 SCC 6498 (2009) 10 SCC 4889 (2014) 8 SCC 27310 (2016) 11 SCC 70311 (1995) 3 SCC 22112 (1980) 2 SCC 565H

even in most heinous offences including murder, rape, dacoity, robbery,NDPS, sedition etc., which are punishable with longer periods dependingupon parameters for grant of anticipatory bail, taking away such powerin respect of offences under the Act is discriminatory and violative ofArticle 14. Exclusion of court’s jurisdiction, even where the court issatisfied that arrest of a person was not called for, has no nexus with theobject of the Atrocities Act. In this regard, reliance has been placed onfollowing observations in Sibbia (supra).

“10. Shri V.M. Tarkunde, appearing on behalf of some ofthe appellants, while supporting the contentions of the otherappellants, said that since the denial of bail amounts todeprivation of personal liberty, courts should lean againstthe imposition of unnecessary restrictions on the scope ofSection 438, when no such restrictions are imposed by thelegislature in the terms of that section. The learned Counseladded a new dimension to the argument by invoking Article21 of the Constitution. He urged that Section 438 is aprocedural provision which is concerned with the personalliberty of an individual who has not been convicted of theoffence in respect of which he seeks bail and who musttherefore be presumed to be innocent. The validity of thatsection must accordingly be examined by the test of fairnessand reasonableness which is implicit in Article 21. If thelegislature itself were to impose an unreasonable restrictionon the grant of anticipatory bail, such a restriction couldhave been struck down as being violative of Article 21.Therefore, while determining the scope of Section 438, thecourt should not impose any unfair or unreasonablelimitation on the individual’s right to obtain an order ofanticipatory bail. Imposition of an unfair or unreasonablelimitation, according to the learned Counsel, would beviolative of Article 21, irrespective of whether it is imposedby legislation or by judicial decision.

13. … …The High Court and the Court of Session to whomthe application for anticipatory bail is made ought to be leftfree in the exercise of their judicial discretion to grant bailif they consider it fit so to do on the particular facts andcircumstances of the case and on such conditions as the casemay warrant. ….

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21. …. …A wise exercise of judicial power inevitably takescare of the evil consequences which are likely to flow out ofits intemperate use. …

26. We find a great deal of substance in Mr. Tarkunde’ssubmission that since denial of bail amounts to deprivationof personal liberty, the court should lean against theimposition of unnecessary restrictions on the scope of Section438, especially when no such restrictions have been imposedby the legislature in the terms of that section. Section 438 isa procedural provision which is concerned with the personalliberty of the individual, who is entitled to the benefit of thepresumption of innocence since he is not, on the date of hisapplication for anticipatory bail, convicted of the offencein respect of which he seeks bail. An over-generous infusionof constraints and conditions which are not to be found inSection 438 can make its provisions constitutionallyvulnerable since the right to personal freedom cannot bemade to depend on compliance with unreasonablerestrictions. The beneficent provision contained in Section438 must be saved, not jettisoned. No doubt can linger afterthe decision in Maneka Gandhi (1978) 1 SCC 248, that inorder to meet the challenge of Article 21 of the Constitution,the procedure established by law for depriving a person ofhis liberty must be fair, just and reasonable. Section 438, inthe form in which it is conceived by the legislature, is opento no exception on the ground that it prescribes a procedurewhich is unjust or unfair. We ought, at all costs, to avoidthrowing it open to a Constitutional challenge by readingwords in it which are not to be found therein.”

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16. Reliance has also placed on recent judgment of this Court inNikesh Tarachand Shah versus Union of India and Anr.[13]declaringSection 45 of the Prevention of Money Laundering Act, 2002Gunconstitutional. This Court held that fetters on grant of bail under thesaid provision when such fetters were not applicable to other offencespunishable in like manners was discriminatory and against the principleof fair just and reasonable procedure.

Submissions of counsel for intervenor supporting the appeal

Submissions of counsel for intervenor supporting the appeal

17. Ms. Manisha T. Karia, counsel appearing for intervenor onbehalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be victimof a false complaint, submitted that respondent No. 2 lodged a false FIRNo. 3210 of 2017 dated 2[nd] November, 2017 against her at Khadki policestation alleging that she, in collusion with the appellant herein, pressurizedrespondent no. 2 to withdraw the FIR No.164 of 2016 registered withKarad Police Station and she falsely implicated respondent no. 2 in asexual harassment case. She is working as an Assistant Professor in theDepartment of Instrumentation and Control in College of Engineering,Pune since last eight years where respondent No. 2 was working as astorekeeper. She had made a complaint against him for her sexualharassment and as a reaction, the FIR was lodged by respondent No. 2by way of the Atrocities Act. Her anticipatory bail application was rejectedby the session court but the High Court, vide order dated 23[rd] November,2017, granted interim protection against arrest. Thereafter, respondentNo. 2 initiated proceedings under Section 107 Cr.P.C. and the intervenorreceived notice dated 2[nd] December, 2017 from the Magistrate. It wassubmitted that there was no safeguard against false implication, undueharassment and uncalled for arrest and thus, this Court must incorporatesafeguards against unreasonable and arbitrary power of arrest in suchcases without following just fair and reasonable procedure which maybe laid down by this Court. Such requirement, it was submitted, wasimplicit requirement of law but was not being followed.

18. Laying down safeguards to enforce constitutional guaranteeunder Article 21 was necessary in view of the Sixth Report dated 19[th]December, 2014 of the Standing Committee on Social Justice andEmpowerment (2014-15) on the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Amendment Bill, 2014 rejecting thestand of the Ministry to the effect that there was no need to provide foraction against false or malafide implication under the Atrocities Act. Itwas observed therein:- “3.9 The Committee are not inclined to accept the contentionof the Ministry that those who are found to be misusing theprovisions of the Act can be tried as per normal law of theland under the relevant sections of the IPC. The Committeeare of the firm view that the PoA Act, being a special law,should be wholesome to the extent that it must contain an A

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Ainbuilt provision for securing justice for those too who arefalsely implicated with mala fide under it. More so, when thelaw makers have shown such perspicacity in addressing suchissues/misgivings when they inserted clause 14 (Punishmentfor false or malicious complaint and false evidence) in ‘TheSexual Harassment of women at Workplace (Prevention,BProhibition and Redressal) Act, 2013.”

19. Thus, unless this Court laid down appropriate guidelines, therewill be no protection available against arbitrary arrests or falseimplications in violation of Article 21 of the Constitution. The intervenorsubmitted that preliminary enquiry must be held before arrest with regardCto 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.

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d.Nature of allegations by both the parties.

e.Necessary documents and evidence by the victim andaccused to substantiate their case to be placed beforecommittee.

Ef.The proceedings may be recorded to avoid allegationsof bias and non-transparency.”

20. The following further safeguards have been suggested bythe counsel for the intervenor:

“Arrest specifically in connection with offences under POAFAct should only be made with the prior sanction of theMagistrate. However this may not apply in case arrest hasto be made in connection with other offences under IPC.Further the gravity of offence also needs to be seen sincemost of the cases at the institutional level are only on theGbasis of mere altercations or action by the public servants intheir official capacity.

Secondly if the Accused under the POA Act surrenders withprior notice to the Public Prosecutor, then his bail Applicationshould be considered on the same day and if not the regularHbail, then at the least interim bail should be granted in the

interest of justice. This requirement may be read into Section18 of the POA Act.”

21. In support of the submission that courts have acknowledgedthe misuse of law, reliance has also been placed on the followingJudgments:

(i) Judgment of the Madras High Court in Jones versus State[14]wherein the High Court observed:

“This Court recently has brought to light the misuse of theScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 against people of other community. Thisis another example of misuse of the Act. The purpose ofbringing SC & ST Act is to put down the atrocities committedon the members of the scheduled castes and scheduled tribes.The law enforcing authorities must bear in mind that itcannot be misused to settle other disputes between theparties, which is alien to the provisions contemplated underthe Act. An Act enacted for laudable purpose can also becomeunreasonable, when it is exercised overzealously by theenforcing authorities for extraneous reasons. It is for theauthorities to guard against such misuse of power conferredon them.”

(ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs. State ofGujarat[15]observing :

“But then having closely examined the complaint moreparticularly in the context and light of the backdrop of thepeculiar facts situation highlighted by the petitioner leadingultimately to filing of the complaint, this Court prime facieat the very outset is at some doubt about the complainant’sstory and yet if it readily, mechanically like a gullible childaccepts the allegations made in the complaint at its facevalue, it would be surely blundering and wandering awayfrom the path of bail-justice, making itself readily availablein the hands of the scheming complainant who on mereasking will get arrested accused on some false allegationsof having committed non-bailable offence, under the Atrocity 14 2004 SCC OnLine Mad 922 : 2004 CriLJ 2755

15 (1997) 2 GLR 942

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Act, meaning thereby the Court rendering itself quite deaf,dumb and blind mortgaging its commonsense, ordinaryprudence with no perception for justice, denying the rightfulprotection to the accused becoming ready pawn pliable inthe hands of sometime scheming, unscrupulouscomplainants !!! This sort of a surrender to prima faciedoubtful allegation in the complaint is not at all a judicialapproach, if not unjudicial !! At the cost of repetition, 1 makeit clear that these observations are only preliminary, at thisstage only in peculiar background of the case highlightedby petitioner-accused and for that purpose may be even infuture be so highlighted by the accused in some other casesto the satisfaction of the Court ! The reason is having regardto the basic cardinal tenets of the criminal jurisprudencemore particularly in view of the peculiar circumstanceshighlighted by the accused which allegedly actuatedcomplainant to victimise him, in case if ultimately at the endof trial what the accused has submitted in defence is acceptedas probable or true and as a result, the accused is given aclean bill, holding that the complaint was nothing else butfalse, concoction by way of spite to wreck the personalvengeance then in that case what indeed would be theremedy and redresses in the hands of the petitioner, who inthe instant case is Doctor by profession and for that purposein other cases an innocent citizen? He stands not onlystigmatised by filing of a false complaint against him but heshall stand further subjected to trial !! Not only that but beforethat even subjected to arrest before the public eye and takento Special Court where only he could pray for bail ! Thus,subjected to all sort of agonies, pains and sufferings loweringhis image and esteem in the eye of public because the Courtwhen approached adopted the helpless attitude? Under suchbewildering circumstances, what indeed would be the faceof the Court and the fate of the Administration of Justicedenying bail to some victimised innocent accused at crucialstage when he surrenders to the Court custody for thepurpose?!! Should the Court proclaiming doing justice standbefooled at the hands of some mischievous complainant withhead-down in shame !! Supposing for giving false evidence

before the Court, the complainant is ordered to beprosecuted, but then will such prosecutions of complainantbring back the damage already done to an innocent !!Bearing in mind this most embarrassing and excruciatingsituation created by the complainant when, this Court as aConstitutional functionary is duty bound to zealously protectthe liberty of citizen, should it be helplessly watching andpassively 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 canbe given compensation for the malicious prosecution andultimate refusal of bail or anticipatory bail !! True, but thenin that case what compensation can any Court would be in aposition to give when the complainant is a person who ispoor enough unable to pay a single pie?!! Not only that butin case complainant is rich and able to pay compensationthen even can any monetary compensation ever adequatelycompensate the wrong accused suffered at the hands of themalicious complainant? It is here that the conscience of thisCourt stands pricked and terribly perturbed and indeed willhave a sleepless night if what ought we do not know wherethe petitioner, in the facts and circumstances of the case bequite innocent and accordingly a needy consumer of bailjustice and yet is unnecessarily subjected to arrest taken tothe police custody and then before Court because of denialof bail to him at this stage !!”

(iii) Dealing with the same issue, the Gujarat High Court in DhirenPrafulbhai Shah versus State of Gujarat[16]observed as under:

“48. In the course of my present sitting, I have come acrossvarious cases wherein the provisions of Atrocities Act aremisused. I find that various complaints are filed immediatelyafter elections, be it Panchayat, Municipal or Corporation,alleging offence under the Atrocities Act. I have no hesitationin saying that in most of the cases, it was found that theF.I.R.s/Complaints were filed only to settle the score with theiropponents after defeat in the elections. I have also comeacross various cases, wherein, private civil disputes arising AB

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out of property, monetary matters, dispute between anemployee and employer, dispute between the subordinate andhis superior - are given penal and the complaints are beingfiled either under Section 190 r/w. 200 or F.I.Rs. at the policestation. The matter in hand is one another example of misuseof the Act. As observed by me earlier, the purpose of bringingSC and ST Act is to put-down the atrocities committed on themembers of the Scheduled Castes and Scheduled Tribes. Thelaw enforcing authorities must bear in mind that it cannotbe misused to settle other disputes between the parties likethe case one in hand, which is alien to the provisionscontemplated under the laudable Act. An Act enacted forlaudable purpose can also become unreasonable, when it isexercised over-zealously by the enforcing authorities forextraneous reasons. It is for the authorities to guard againstsuch misuse of power conferred on them.

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49. Passing mechanically orders by the Court of Magistratesin complaint and/or registration of the F.I.R. at the PoliceStation, which do not have any criminal element, causes greathardships, humiliation, inconvenience and harassment to thecitizens. For no reasons the reputation of the citizen is put tostake as immediately after the said orders are passed,innocent citizens are turned as accused. One should notoverlook the fact that there is Section-18 in the AtrocitiesAct, which imposes a bar so far as the grant of anticipatorybail is concerned, if the offence is one under the AtrocitiesAct. If a person is accused having committed murder, dacoity, D

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Frape, etc., he can pray for anticipatory bail under Section-438 of the Cr.P.C. on the ground that he is innocent and hasbeen falsely involved, but if a person alleged to havecommitted an offence under the Atrocities Act, cannot prayfor an anticipatory bail because of the bar of Section-18 ofthe Act, and he would get arrested. This is the reason for theGauthorities to guard against any misuse of the Provisions ofthe Atrocities Act.”

(iv) Judgment of Gujarat High Court in Pankaj D Suthar versusState of Gujarat[17] observing:

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“4. …But then, what according to this Court is the mostwelcome step by way of collective wisdom of the Parliamentin ushering social beneficial legislation cannot be permittedto be abused and converted into an instrument to blackmailto wreak some personal vengeance for settling and scoringpersonal vendetta or by way of some counter-blasts againstopponents some public servants, as prima facie appears tohave been done in the present case. The basic questions insuch circumstances therefore are-Whether a torch which islighted to dispel the darkness can it be permitted to set onfire the innocent surroundings? Whether a knife aninstrument which is meant for saving human life by usingthe same in the course of operation by a surgeon, can it bepermitted to be used in taking the life of some innocent? Thevery same fundamental question arises in the facts andcircumstances of this case also, viz., ‘whether any statutelike the present Atrocities Act, especially enacted for thepurposes of protecting weaker sections of the society hailingfrom S.C. & S.T. communities can be permitted to be abusedby conveniently converting the same into a weapon ofwrecking personal vengeance on the opponents?’ Theanswer to this question is undoubtedly and obviously ‘No’.Under such circumstances, if the Courts are to apply suchprovision of Section 18 of the Atrocities Act quitemechanically and blindly merely guided by some generaland popular prejudices based on some words and trickyaccusations in the complaint on mere assumptions withoutintelligently scrutinising and testing the probabilities,truthfulness, genuineness and otherwise dependability of theaccusations in the complaint etc., then it would be simplyunwittingly and credulously playing in the hands of somescheming unscrupulous complainant in denying the justice.Virtually, it would be tantamount to abdicating and relegatingits judicial duty, function of doing justice in such matters infavour and hands of such unscrupulous complainant bymaking him a Judge in his own cause. This is simplyunthinkable and therefore impermissible. Whether theprovisions of any particular Act and for that purpose therules made thereunder are applicable to the facts of a

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Aparticular case or not, is always and unquestionably a matterwhich lies strictly and exclusively within the domain of‘judicial consideration-discretion’ and therefore neither mereallegations made in the complainant by themselves nor baredenials by the accused can either automatically vest or divestthe Court from discharging its ultimate judicial function-Bduty to closely scrutinise and test the prima faciedependability of the allegations made in the complaint andreach its own decision.”

(v) Judgment of Bombay High Court in Sharad versus State ofMaharashtra[18]observing :C

“12. We hasten to add that such type of complaints forrampant misuse of the provisions of Section 3(1)(x) of theScheduled Castes & Scheduled Tribes (Prevention ofAtrocities) Act, 1989, are largely being filed particularlyagainst Public Servants/quasi judicial/judicial officers withDoblique motive for satisfaction of vested interests. We thinkthe learned Members of the Bar have enormous socialresponsibility and obligation to ensure that the social fabricof the society is not damaged or ruined. They must ensurethat exaggerated versions should not be reflected in theEcriminal complaints having the outrageous effect ofindependence of judicial and quasi judicial authorities soalso the public servants. We cannot tolerate putting them ina spooked, chagrined and fearful state while performingtheir public duties and functions. We also think that a seriousre-look at the provisions of the Act of 1989 which are beingFnow largely misused is warranted by the Legislature, ofcourse, on the basis of pragmatic realities and public opinion.A copy of this Judgment is directed to be sent to the LawCommission for information.”

22. It was, thus, submitted that above judgments are merelyGillustrations to show that the abuse of law was rampant. If mereaccusations are treated as sufficient, it may unfairly damage the personaland professional reputation of a citizen. There is a need to balance thesocietal interest and peace on the one hand and the protection of rightsof victims of such false allegations on the other. If allegations are against H18 2015(4) BomCR(Crl) 545

an employee, a committee should be formed in every department asfollows:- “i. The employer or Head of every institution may bedirected to constitute an internal committee to look intothe matters and specific grievances related to atrocitiescommitted on the members of SC/ST. …………..

ii. That before proceeding to lodge any FIR or criminalcomplaint, a written complaint should made to the internalcommittee of the institution along with supportive evidence.

iii. Such committee may be given the power to conduct apreliminary inquiry into the matter by hearing both theparties and other evidence, so as to ascertain the existenceof a prima facie case under the POA Act.”

23. It has been further suggested that Magistrate must verify theaverments in a Complaint/FIR to ascertain whether a prima facie caseis made out and whether arrest was necessary and only then arrestshould be made or continued.

24. It is further submitted by the counsel for the intervenor thatthe Atrocities Act is also prone to misuse on account of monetary incentivebeing available merely for lodging a case under Rule 12(4) of ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.Such incentive may encourage not only genuine victims but, there beingno safeguard even against a false case being registered only to get themonetary incentive, such false cases may be filed without any remedyto the affected person.

25. Reference has also been made to Annual Report 2016-2017of the Ministry of Social Justice and Empowerment and data compiledby the Government of Maharashtra for the years 1990 to 2013 (dated30[th] April, 2013) in respect of offences registered under Scheduled Casteand Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Protectionof 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).

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A26. As per data (Crime in India 2016 – Statistics) compiled bythe National Crime Records Bureau, Ministry of Home Affairs underthe 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) itis mentioned that in the year 2016, 5347 cases were found to be falseBcases out of the investigated out of SC cases and 912 were found to befalse 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 acquittalor discharge, 495 cases were withdrawn and 4119 cases resulted inconviction. (Reference: Annual Report 2016-2017 published by theCDepartment of Social Justice & Empowerment, Ministry of Social Justiceand Empowerment, Government of India).

Interventions against the appellant

27. Intervention application has also been filed by one AnandaSakharam Jadhav who claims to be convenor of the Bahujan KarmachariDKalyan Sangh. Shri C.U. Singh, learned senior counsel appearing forthe said intervenor, submitted that where law is clear no guideline shouldbe issued by the Court. Reliance has been placed on State of Jharkhandand Anr. Versus Govind Singh[19]and Rohitash Kumar and Ors versusOm Prakash Sharma and Ors.[20]It was submitted that this Court couldEnot lay down guidelines in the nature of legislation.

28. Shri C.U. Singh submitted that the Section 18 of the AtrocitiesAct has already been upheld in Balothia (supra) and Manju Devi versusOnkarjit Singh Ahluwalia[21]. He also relied upon Statement of Objectsand Reasons of the Scheduled Castes and the Scheduled TribesF(Prevention of Atrocities) Amendment Bill, 2013 dated 14[th] July, 2014.Therein it is stated that there are procedural hurdles such as non-registration of cases, procedural delays in investigation, arrests and filingof charge-sheets and delays in trial and low conviction rate on accountof which in spite of deterrent provisions, atrocities against SC/STcontinues at disturbing level which necessitated amendment in the Act.G

29. Further intervention has been sought by one Yogendra MohanHarsh. Learned counsel for the said intervenor submitted that atrocities 19 (2005)10 SCC 43720 (2013)11 SCC 451H21 (2017) 13 SCC 439

against SCs and STs are increasing and if submissions of amicus are tobe accepted, the Act will be rendered ineffective and teethless.

Submissions of learned Additional Solicitor General (ASG)

30. Learned ASG submitted that in view of decisions in Balothia(supra) and Manju Devi (supra) there is no occasion to go into the issueof validity of provisions of the Atrocities Act. He also submitted thatdecisions of this Court in Vilas Pandurang Pawar and Anr. versusState of Maharashtra and Ors.[22] and Shakuntla Devi versusBaljinder Singh[23]permit grant of anticipatory bail if no prima faciecase is made out. Thus, in genuine cases anticipatory bail can be granted.He also submitted that the Government of India had issued advisories on3[rd] February, 2005, 1[st] April, 2010 and 23[rd] May, 2016 and also furtheramended the Atrocities Act vide Amendment Act No. 1 of 2016 whichprovides for creation of Special Courts as well as Exclusive SpecialCourts. Referring to the data submitted by the National Crime RecordsBureau (NCRB) it was further submitted that out of the total number ofcomplaints investigated by the police in the year 2015, both for the personsbelonging to the SC category and also belonging to the ST category, inalmost 15-16% cases, the competent police authorities had filed closurereports. Out of the cases disposed of by the courts in 2015, more than75% cases have resulted in acquittal/withdrawal or compounding of thecases. It was submitted that certain complaints were received allegingmisuse of the Atrocities Act and a question was also raised in Parliamentas to what punishment should be given against false cases. The replygiven was that awarding punishment to members of SCs and STs forfalse implication would be against the spirit of the Act. A press statementdated 19[th] March, 2015 was issued by the Central Government to theeffect 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 Courtwhich may be legislative in nature.

Consideration of the issue whether directions can be issued bythis Court to protect fundamental right under Article 21 againstuncalled for false implication and arrests

31. We may, at the outset, observe that jurisdiction of this Courtto issue appropriate orders or directions for enforcement of fundamental 22 (2012) 8 SCC 795

23 (2014) 15 SCC 521

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Arights is a basic feature of the Constitution. This Court, as the ultimateinterpreter of the Constitution, has to uphold the constitutional rights andvalues. Articles 14, 19 and 21 represent the foundational values whichform the basis of the rule of law. Contents of the said rights have to beinterpreted in a manner which enables the citizens to enjoy the saidrights. Right to equality and life and liberty have to be protected againstBany unreasonable procedure, even if it is enacted by the legislature. Thesubstantive as well as procedural laws must conform to Articles 14 and21. Any abrogation of the said rights has to be nullified by this Court byappropriate orders or directions. Power of the legislature has to beexercised consistent with the fundamental rights. Enforcement of aClegislation has also to be consistent with the fundamental rights.Undoubtedly, this Court has jurisdiction to enforce the fundamental rightsof life and liberty against any executive or legislative action. Theexpression ‘procedure established by law’ under Article 21 implies just,fair and reasonable procedure[24].

D32. This Court is not expected to adopt a passive or negative roleand remain bystander or a spectator if violation of rights is observed. Itis necessary to fashion new tools and strategies so as to check injusticeand violation of fundamental rights. No procedural technicality can standin the way of enforcement of fundamental rights[25]. There are enumerabledecisions of this Court where this approach has been adopted andEdirections issued with a view to enforce fundamental rights which maysometimes be perceived as legislative in nature. Such directions cancertainly be issued and continued till an appropriate legislation is enacted[26].Role of this Court travels beyond merely dispute settling and directionscan certainly be issued which are not directly in conflict with a valid Fstatute[27]. Power to declare law carries with it, within the limits of duty,to make law when none exists[28].33. Constitution Bench of this Court in Union of India versusRaghubir Singh[29], observed :

24 Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 to 85G25 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13

26 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi KantPandey 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 754H

“7. … It used to be disputed that Judges make law. Today, itis no longer a matter of doubt that a substantial volume ofthe law governing the lives of citizens and regulating thefunctions of the State flows from the decisions of the superiorCourts. “There was a time,” observed Lord Reid, “When itwas thought almost indecent to suggest that Judges makelaw - They only declare it.... But we do not believe in fairlytales any more.” “The Judge as Law Maker”, p. 22. Incountries such as the United Kingdom, where Parliament asthe legislative organ is supreme and stands at the apex ofthe constitutional structure of the State, the role played byjudicial law-making is limited.

In the first place the function of the Courts is restricted tothe interpretation of laws made by Parliament, and the Courtshave no power to question the validity of Parliamentarystatutes, the Diceyan dictum holding true that the BritishParliament is paramount and all powerful. In the secondplace, the law enunciated in every decision of the Courts inEngland can be superseded by an Act of Parliament. AsCockburn C.J. observed in Exp. Canon Selwyn (1872) 36JP Jo 54:

There is no judicial body in the country by which the validityof an Act of Parliament could be questioned. An act of theLegislature is superior in authority to any Court of Law.And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All ER779 referred to a Parliamentary statute as “the highest formof law...which prevails over every other form of law.” Theposition is substantially different under a written Constitutionsuch as the one which governs us. The Constitution of India,which represents the Supreme Law of the land, envisagesthree distinct organs of the State, each with its own distinctivefunctions, each a pillar of the State.

Broadly, while Parliament and the State Legislature fin Indiaenact the law and the Executive Government implements it,the judiciary sits in judgment not only on the implementationof the law by the Executive but also on the validity of theLegislation sought to be implemented One of the functionsof the superior judiciary in India is to examine the AB

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competence and validity of legislation, both in point oflegislative competence as well as its consistency with theFundamental Rights. In this regard, the Courts in Indiapossess a power not known to the English Courts. Where astatute is declared invalid in India it cannot be reinstatedunless constitutional sanction is obtained therefore by aconstitutional amendment of an appropriately modifiedversion of the statute is enacted which accords withconstitutional prescription.

The range of judicial, review recognised in the superiorjudiciary of India is perhaps the widest and the most extensiveknown to the world of law.

The power extends to examining the validity of even anamendment to the Constitution, for now it has been repeatedlyheld that no constitutional amendment can be sustainedwhich [violates the basic structure of the Constitution. SeeKesavananda Bharati Sripadagalayaru v. State of KeralaAIR1973SC1461), 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 impressiveexpanse of judicial power, it is only right that the superiorCourts in India should be conscious of the enormousresponsibility which rests on them. This is specially true ofthe Supreme Court, for as the highest Court in the entirejudicial system the law declared by it is, by Article 141 of theConstitution, binding on« all Courts within the territory of India.”

34. The law has been summed up in a decision in Rajesh Kumarversus State[30]as follows:

“62. Until the decision was rendered in Maneka Gandhi(supra), Article 21 was viewed by this Court as rarelyembodying the Diceyian concept of rule of law that no onecan be deprived of his personal liberty by an executive actionunsupported by law. If there was a law which provided somesort of a procedure it was enough to deprive a person of hislife or personal liberty. In this connection, if we refer to theexample given by Justice S.R. Das in his judgment in A.K.

Gopalan (supra) that if the law provided the Bishop ofRochester ‘be boiled in oil’ it would be valid under Article21. But after the decision in Maneka Gandhi (supra) whichmarks a watershed in the development of constitutional lawin our country, this Court, for the first time, took the viewthat Article 21 affords protection not only against theexecutive action but also against the legislation whichdeprives a person of his life and personal liberty unless thelaw for deprivation is reasonable, just and fair. and it washeld that the concept of reasonableness runs like a goldenthread through the entire fabric of the Constitution and it isnot enough for the law to provide some semblance of aprocedure. The procedure for depriving a person of his lifeand personal liberty must be eminently just, reasonable andfair and if challenged before the Court it is for the Court todetermine whether such procedure is reasonable, just andfair and if the Court finds that it is not so, the Court willstrike down the same.”

35. Apart from the above, there are enumerable occasions whenthis Court has issued directions for enforcement of fundamental rightse.g., directions regarding functioning of caste scrutiny Committee[31];directions to regulate appointment of law officers[32]; directions to regulatepowers of this Court and High Courts in designating Senior Advocates[33];guidelines have been issued for the welfare of a child accompanying his/her mother in imprisonment[34]; directions for checking trafficking ofwomen and children[35]; for night shelters for the homeless[36]; directionsto check malnutrition in children[37]; directions to provide medical assistanceby Government run hospitals[38]; directions for protection of human rights ofprisoners[39]; directions for speedy trial of under trials[40]. The list goes on.

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

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

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

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

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

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A36. Issuance of directions to regulate the power of arrest hasalso been the subject matter of decisions of this Court. In JoginderKumar versus State of U.P.[41], this Court observed that horizon of humanrights is expanding. There are complaints of violation of human rightsbecause of indiscriminate arrests. The law of arrest is of balancingindividual rights, liberties and privileges, duties, obligations andBresponsibilities. On the one side is the social need to check a crime, onthe other there is social need for protection of liberty, oppression andabuse by the police and the other law enforcing agencies. This Courtnoted the 3[rd] Report of the National Police Commission to the effectthat power of arrest was one of the chief sources of corruption of police.C60% of arrests were unnecessary or unjustified. The arrest could bejustified only in grave offences to inspire the confidence of the victim, tocheck the accused from committing further crime and to prevent himfrom absconding. The National Police Commission recommended thatthe police officer making arrest should record reasons. This Courtobserved that no arrest can be made merely because it is lawful to doDso. The exercise of power must be for a valid purpose. Except in heinousoffences arrest must be avoided. This requirement was read into Article21[42]. In Arnesh Kumar versus State of Bihar[43], this Court observedthat arrest brings humiliation, curtails freedom and casts scars forever.It is considered a tool for harassment and oppression. The drastic powerEis to be exercised with caution. Power of arrest is a lucrative source ofcorruption. Referring to the amendment of law in Section 41 Cr.P.C., inthe light of recommendations of the Law Commissions, it was directedthat arrest may be justified only if there is ‘credible information’ or‘reasonable suspicion’ and if arrest was necessary to prevent furtheroffence or for proper investigation or to check interference with the evidence.FReasons are required to be recorded. However, compliance on the groundis far from satisfactory for obvious reasons. The scrutiny by the Magistratesis also not adequate. This Court issued the following directions:

“11. Our endeavour in this judgment is to ensure thatpolice officers do not arrest the accused unnecessarilyGand Magistrate do not authorise detention casually andmechanically. In order to ensure what we have observedabove, we give the following directions:41 (1994) 4 SCC 26042 Para 21H43 (2014) 8 SCC 273

11.1. All the State Governments to instruct its policeofficers not to automatically arrest when a case underSection 498-A IPC is registered but to satisfy themselvesabout the necessity for arrest under the parameters laiddown above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check listcontaining specified sub-clauses under Section41(1)(b)(ii); 11.3. The police officer shall forward the check list dulyfilled and furnish the reasons and materials whichnecessitated the arrest, while forwarding/producing theaccused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of theaccused shall peruse the report furnished by the policeofficer in terms aforesaid and only after recording itssatisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, beforwarded to the Magistrate within two weeks from thedate of the institution of the case with a copy to theMagistrate which may be extended by theSuperintendent of Police of the district for the reasonsto be recorded in writing; 11.6. Notice of appearance in terms of Section 41-ACrPC be served on the accused within two weeks fromthe date of institution of the case, which may be extendedby the Superintendent of Police of the district for thereasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaidshall apart from rendering the police officers concernedliable for departmental action, they shall also be liableto be punished for contempt of court to be institutedbefore the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasonsas aforesaid by the Judicial Magistrate concerned shallbe liable for departmental action by the appropriateHigh Court.”

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37. In D.K. Basu versus State of W.B.[44], this Court, to checkabuse of arrest and drastic police power, directed as follows:

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(4) The time, place of arrest and venue of custody of anarrestee must be notified by the police where the next friendor relative of the arrestee lives outside the district or townthrough the Legal Aid Organisation in the District and thepolice station of the area concerned telegraphically withina period of 8 to 12 hours after the arrest.

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(6) An entry must be made in the diary at the place ofdetention regarding the arrest of the person which shall alsodisclose the name of the next friend of the person who hasbeen informed of the arrest and the names and particularsof the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be alsoexamined at the time of his arrest and major and minorinjuries, if any present on his/her body, must be recorded atthat time. The “Inspection Memo” must be signed both bythe arrestee and the police officer effecting the arrest andits copy provided to the arrestee.

(8) The arrestee should be subjected to medicalexamination by a trained doctor every 48 hours during hisdetention in custody by a doctor on the panel of approveddoctors appointed by Director, Health Services of the Stateor Union Territory concerned. Director, Health Servicesshould prepare such a panel for all tehsils and districts aswell.

(9) Copies of all the documents including the memo ofarrest, referred to above, should be sent to the IllaqaMagistrate for his record.

(10) The arrestee may be permitted to meet his lawyerduring interrogation, though not throughout theinterrogation.

(11) A police control room should be provided at alldistrict and State headquarters, where information regardingthe arrest and the place of custody of the arrestee shall becommunicated by the officer causing the arrest, within 12hours of effecting the arrest and at the police control roomit should be displayed on a conspicuous notice board.

36. Failure to comply with the requirements hereinabovementioned shall apart from rendering the official concernedliable for departmental action, also render him liable to bepunished for contempt of court and the proceedings forcontempt of court may be instituted in any High Court of thecountry, having territorial jurisdiction over the matter.

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A37. The requirements, referred to above flow from Articles21 and 22(1) of the Constitution and need to be strictlyfollowed. These would apply with equal force to the othergovernmental agencies also to which a reference has beenmade earlier.”

B38. In Rini Johar (supra) this Court considered the issue ofwrongful arrest and payment of compensation. It was observed thatwrongful arrest violates Article 21 of the Constitution and thus the victimof arrest was entitled to compensation. This Court noted the observationsand guidelines laid down against wrongful arrests in Joginder Kumar(supra), D.K. Basu (supra), Arnesh Kumar (supra) and other casesCand held that since the arrest is in violation of guidelines laid down bythis Court and is violative of Article 21, the person arrested was entitledto compensation.

39. In Subramanian Swamy versus UOI[45], this Courtconsidered the issue of validity of provisions creating defamation as anDoffence. In the course of said judgment, need for harmony in competingclaims of different interests was considered. This Court observed thatthe fundamental rights are all parts of an integrated scheme and theirwaters must mix to constitute grand flow of impartial justice[46]. ThisCourt also observed that legislation should not invade the rights and shouldEnot 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. Proportionalityof restraint has to be kept in mind while determining constitutionality.Concept of public interest and social interest determine the needs of thesociety[47]. After referring to Maneka Gandhi (supra), it was observedFthat it is the duty of this Court to strike a balance in the right of speechand right to protect reputation[48]. The restriction of law should be rationaland connected to the purpose for which it is necessary. It should not bearbitrary or excessive[49].

40. Again this Court in Siddharam Satlingappa Mhetre versusGState of Maharashtra[50]laid down parameters for exercise of discretion 45 (2016) 7 SCC 22146 Para 13747 Para 13048 Para 14449 Para 194 and 195H50 (2011) 1 SCC 694

of anticipatory bail having regard to the fundamental right of liberty underArticle 21 of the Constitution and the needs of the society where suchliberty may be required to be taken away. It was observed:

“Relevance and importance of personal liberty

36. All human beings are born with some unalienable rightslike life, liberty and pursuit of happiness. The importanceof these natural rights can be found in the fact that theseare fundamental for their proper existence and no other rightcan be enjoyed without the presence of right to life andliberty. Life bereft of liberty would be without honour anddignity and it would lose all significance and meaning andthe 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 valuesenriched by the people of this country. The aim behind havingelementary right of the individual such as the Right to Lifeand Liberty is not fulfilled as desired by the Framers of theConstitution. It is to preserve and protect certain basic humanrights against interference by the State. The inclusion of achapter in the Constitution is in accordance with the trendsof modern democratic thought. The object is to ensure theinviolability of certain essential rights against politicalvicissitudes. …

54. Life and personal liberty are the most prized possessionsof an individual. The inner urge for freedom is a naturalphenomenon of every human being. Respect for life, libertyand property is not merely a norm or a policy of the Statebut an essential requirement of any civilised society.

64. The object of Article 21 is to prevent encroachment uponpersonal liberty in any manner. Article 21 is repository ofall human rights essential for a person or a citizen. A fruitfuland meaningful life presupposes life full of dignity, honour,health and welfare. In the modern “Welfare Philosophy”, itis for the State to ensure these essentials of life to all itscitizens, and if possible to non-citizens. While invoking theprovisions of Article 21, and by referring to the oftquotedstatement of Joseph Addison, “Better to die ten thousand A

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deaths than wound my honour”, the Apex Court in KhedatMazdoor Chetna Sangath v. State of M.P. (1994) 6 SCC 260posed to itself a question “If dignity or honour vanisheswhat remains of life?” This is the significance of the Rightto Life and Personal Liberty guaranteed under theConstitution of India in its Third Part. …

International Charters

Universal Declaration of Human Rights, 1948

80. Article 3 of the Universal Declaration says:

“3. Everyone has the right to life, liberty and securityof 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 andpublic hearing by an independent and impartialtribunal, in the determination of his rights andobligations 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 PoliceCommission, when the power of arrest is grossly abused andclearly violates the personal liberty of the people, asenshrined under Article 21 of the Constitution, then the courtsneed to take serious notice of it. When conviction rate isadmittedly less than 10%, then the police should be slow inarresting the accused. The courts considering the bailapplication should try to maintain fine balance between thesocietal interest vis-à-vis personal liberty while adhering tothe fundamental principle of criminal jurisprudence that theaccused is presumed to be innocent till he is found guilty bythe competent court.

87. The complaint filed against the accused needs to bethoroughly examined including the aspect whether the

complainant has filed a false or frivolous complaint onearlier occasion. The court should also examine the factwhether there is any family dispute between the accused andthe complainant and the complainant must be clearly toldthat if the complaint is found to be false or frivolous, thenstrict action will be taken against him in accordance withlaw. If the connivance between the complainant and theinvestigating officer is established then action be takenagainst the investigating officer in accordance with law.

88. The gravity of charge and the exact role of the accusedmust be properly comprehended. Before arrest, the arrestingofficer must record the valid reasons which have led to thearrest of the accused in the case diary. In exceptional casesthe reasons could be recorded immediately after the arrest,so that while dealing with the bail application, the remarksand observations of the arresting officer can also be properlyevaluated by the court.

89. It is imperative for the courts to carefully and withmeticulous precision evaluate the facts of the case. Thediscretion must be exercised on the basis of the availablematerial and the facts of the particular case. In cases wherethe court is of the considered view that the accused has joinedinvestigation and he is fully cooperating with theinvestigating agency and is not likely to abscond, in thatevent, custodial interrogation should be avoided.

90. A great ignominy, humiliation and disgrace is attachedto the arrest. Arrest leads to many serious consequences notonly for the accused but for the entire family and at timesfor the entire community. Most people do not make anydistinction between arrest at a pre-conviction stage or post-conviction stage.

110. The Law Commission in July 2002 has severely criticisedthe police of our country for the arbitrary use of power ofarrest which, the Commission said, is the result of the vastdiscretionary powers conferred upon them by this Code. TheCommission expressed concern that there is no internalmechanism within the Police Department to prevent misuseof law in this manner and the stark reality that complaint A

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lodged in this regard does not bring any result. TheCommission intends to suggest amendments in the CriminalProcedure Code and has invited suggestions from variousquarters. Reference is made in this article to the 41st Reportof the Law Commission wherein the Commission saw “nojustification” to require a person to submit to custody, remainin prison for some days and then apply for bail even whenthere are reasonable grounds for holding that the personaccused of an offence is not likely to abscond or otherwisemisuse his liberty. Discretionary power to order anticipatorybail is required to be exercised keeping in mind thesesentiments and spirit of the judgments of this Court in Sibbiacase (1980)2 SCC 565 and Joginder Kumar v. State ofU.P.(1994)4 SCC 260.

112. The following factors and parameters can be taken intoconsideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation andthe exact role of the accused must be properlycomprehended before arrest is made;

(ii) The antecedents of the applicant including thefact as to whether the accused has previously undergoneimprisonment on conviction by a court in respect of anycognizable offence;

(iii) The possibility of the applicant to flee fromjustice;

(iv) The possibility of the accused’s likelihood torepeat similar or other offences;

(v) Where the accusations have been made onlywith the object of injuring or humiliating the applicantby arresting him or her;

(vi) Impact of grant of anticipatory bailparticularly in cases of large magnitude affecting a verylarge number of people;

(vii) The courts must evaluate the entire availablematerial against the accused very carefully. The courtmust also clearly comprehend the exact role of the

accused in the case. The cases in which the accused isimplicated with the help of Sections 34 and 149 of thePenal Code, 1860 the court should consider with evengreater care and caution because overimplication inthe cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant ofanticipatory bail, a balance has to be struck betweentwo factors, namely, no prejudice should be caused tothe free, fair and full investigation and there should beprevention of harassment, humiliation and unjustifieddetention of the accused;

(ix) The court to consider reasonableapprehension of tampering of the witness orapprehension of threat to the complainant;

(x) Frivolity in prosecution should always beconsidered and it is only the element of genuinenessthat shall have to be considered in the matter of grantof bail and in the event of there being some doubt as tothe genuineness of the prosecution, in the normal courseof events, the accused is entitled to an order of bail.

113. Arrest should be the last option and it should berestricted to those exceptional cases where arresting theaccused is imperative in the facts and circumstances of thatcase. The court must carefully examine the entire availablerecord and particularly the allegations which have beendirectly attributed to the accused and these allegations arecorroborated by other material and circumstances on record.

114. These are some of the factors which should be takeninto consideration while deciding the anticipatory bailapplications. These factors are by no means exhaustive butthey are only illustrative in nature because it is difficult toclearly visualise all situations and circumstances in which aperson may pray for anticipatory bail. If a wise discretion isexercised by the Judge concerned, after consideration ofthe entire material on record then most of the grievances infavour of grant of or refusal of bail will be taken care of.The legislature in its wisdom has entrusted the power to A

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exercise this jurisdiction only to the Judges of the superiorcourts. In consonance with the legislative intention weshould accept the fact that the discretion would be properlyexercised. In any event, the option of approaching thesuperior court against the Court of Session or the High Courtis always available.

Irrational and indiscriminate arrests are gross violation ofhuman rights

115. In Joginder Kumar case (supra) a three-Judge Benchof this Court has referred to the 3rd Report of the NationalPolice Commission, in which it is mentioned that the qualityof arrests by the police in India mentioned the power of arrestas one of the chief sources of corruption in the police. TheReport suggested that, by and large, nearly 60% of thearrests were either unnecessary or unjustified and that suchunjustified police action accounted for 43.2% of theexpenditure of the jails.

116. Personal liberty is a very precious fundamental rightand it should be curtailed only when it becomes imperativeaccording to the peculiar facts and circumstances of thecase.

117. In case, the State considers the following suggestionsin proper perspective then perhaps it may not be necessaryto curtail the personal liberty of the accused in a routinemanner. These suggestions are only illustrative and notexhaustive:

(1) Direct the accused to join the investigation andonly when the accused does not cooperate with theinvestigating agency, then only the accused be arrested.

(2) Seize either the passport or such other relateddocuments, such as, the title deeds of properties or thefixed deposit receipts/share certificates of the accused.

(3) Direct the accused to execute bonds.

(4) The accused may be directed to furnish suretiesof a number of persons which according to theprosecution are necessary in view of the facts of theparticular case.

(5) The accused be directed to furnish undertakingthat he would not visit the place where the witnessesreside so that the possibility of tampering of evidenceor otherwise influencing the course of justice can beavoided.

(6) Bank accounts be frozen for small duration duringthe investigation.

118. In case the arrest is imperative, according to the factsof the case, in that event, the arresting officer must clearlyrecord the reasons for the arrest of the accused before thearrest in the case diary, but in exceptional cases where itbecomes imperative to arrest the accused immediately, thereasons be recorded in the case diary immediately after thearrest is made without loss of any time so that the court has anopportunity to properly consider the case for grant or refusal ofbail in the light of reasons recorded by the arresting officer.

119. Exercise of jurisdiction under Section 438 CrPC is anextremely important judicial function of a Judge and mustbe entrusted to judicial officers with some experience andgood track record. Both the individual and society have vitalinterest in orders passed by the courts in anticipatory bailapplications.

120. It is imperative for the High Courts through its judicialacademies to periodically organise workshops, symposiums,seminars and lectures by the experts to sensitise judicialofficers, police officers and investigating officers so thatthey can properly comprehend the importance of personalliberty vis-à-vis social interests. They must learn to maintainfine balance between the personal liberty and the social interests”

41. It is, thus, too late in the day to accept an objection that thisCourt may not issue any direction which may be perceived to be oflegislative nature even if it is necessary to enforce fundamental rightsunder Articles 14 and 21 of the Constitution.

Further consideration of potential impact of working of AtrocitiesAct on spreading casteism

42. In the light of submissions made, it is necessary to expressconcern that working of the Atrocities Act should not result in perpetuating A

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Acasteism which can have an adverse impact on integration of the societyand the constitutional values. Such concern has also been expressed bythis Court on several occasions. Secularism is a basic feature of theConstitution. Irrespective of caste or religion, the Constitution guaranteesequality in its preamble as well as other provisions including Articles 14-16. The Constitution envisages a cohesive, unified and casteless society.B

43. Dr. B. R. Ambedkar, in his famous speech on 25[th] November,1949, on conclusion of deliberations of the Constituent Assembly, stated:

“These principles of liberty, equality and fraternity are notto be treated as separate items in a trinity. They form a unionCof trinity in the sense that to divorce one from the other is todefeat the very purpose of democracy. Liberty cannot bedivorced from equality, equality cannot be divorced fromliberty. Nor can liberty and equality be divorced fromfraternity. Without equality, liberty would produce thesupremacy of the few over the many. Equality without libertyDwould kill individual initiative. Without fraternity, liberty andequality could not become a natural course of things. It wouldrequire a constable to enforce them.….…

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In India there are castes. The castes are anti-national. In theEfirst place because they bring about separation in sociallife. They are anti-national also because they generatejealousy and antipathy between caste and caste. But we mustovercome all these difficulties if we wish to become a nationin reality. For fraternity can be a fact only when there is aFnation. Without fraternity, equality and liberty will be nodeeper than coats of paint.”

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44. In Indra Sawhney and Ors versus Union of India andOrs.[51]this Court observed:

“339. Secularism is the basic feature of the IndianConstitution. It envisages a cohesive, unified and castelesssociety. The Constitution has completely obliterated the castesystem and has assured equality before law. Reference tocaste under Articles 15(2) and 16(2) is only to obliterate it.

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The prohibition on the ground of caste is total, the mandateis 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 toegalitarianism — from feudalism to freedom.

340. The caste system which has been put in the grave bythe framers of the Constitution is trying to raise its ugly headin various forms. Caste poses a serious threat to thesecularism and as a consequence to the integrity of thecountry. Those who do not learn from the events of historyare doomed to suffer again. It is, therefore, of utmostimportance for the people of India to adhere in letter andspirit to the Constitution which has moulded this countryinto a sovereign, socialist, secular democratic republic andhas promised to secure to all its citizens justice, social,economic and political, equality of status and ofopportunity.”

45. In the Report of the National Commission to Review theWorking of the Constitution one of the failures of the working of theConstitution noted was that the elections continued to be fought on castelines. The said observations have been quoted in People’s Union forCivil Liberties (PUCL) and Anr. Etc. versus Union of India andAnr.[52] as follows:

“20. It is to be stated that similar views are expressed in theReport submitted in March 2002 by the National Commissionto Review the Working of the Constitution appointed by theUnion Government for reviewing the working of theConstitution. Relevant recommendations are as under:

“Successes and failures

4.4. During the last half-a-century, there have beenthirteen general elections to the Lok Sabha and a muchlarge number to various State Legislative Assemblies. Wecan take legitimate pride in that these have been successfuland generally acknowledged to be free and fair. But, theexperience has also brought to the fore many distortions, A

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some very serious, generating a deep concern in manyquarters. There are constant references to the unhealthyrole of money power, muscle power and mafia power andto criminalisation, corruption, communalism andcasteism.”

46. The speech of the then Prime Minister Shri Atal BehariVajpayee on this aspect was also noted in para 48 of the above judgmentwhich is as follows:

“Mr Divan in course of his arguments, had raised somesubmissions on the subject — ‘Criminalisation of Politics’and participation of criminals in the electoral process ascandidates and in that connection, he had brought to ournotice the order of the Election Commission of India dated28-8-1997. … — ‘Whither Accountability’, published in ThePioneer, Shri Atal Behari Vajpayee had called for a nationaldebate on all the possible alternatives for systematic changesto cleanse our democratic governing system of its presentmess. He has expressed his dissatisfaction that neitherParliament nor the State Vidhan Sabhas are doing, with anydegree of competence or commitment, what they are primarilymeant to do: legislative function. According to him, barringexceptions, those who get elected to these democraticinstitutions are neither trained, formally or informally, inlaw-making nor do they seem to have an inclination todevelop the necessary knowledge and competence in theirprofession. He has further indicated that those individualsin society who are generally interested in serving theelectorate and performing legislative functions are findingit increasingly difficult to succeed in today’s electoral systemand the electoral system has been almost totally subvertedby money power, muscle power, and vote bank considerationsof castes and communities. Shri Vajpayee also had indicatedthat the corruption in the governing structures has, therefore,corroded the very core of elective democracy. According tohim, the certainty of scope of corruption in the governingstructure has heightened opportunism and unscrupulousnessamong political parties, causing them to marry and divorceone another at will, seek opportunistic alliances and coalitions often without the popular mandate. Yet they captureand survive in power due to inherent systematic flows. Hefurther stated that casteism, corruption and politicisationhave eroded the integrity and efficacy of our civil servicestructure also. The manifestos, policies, programmes of thepolitical parties have lost meaning in the present system ofgovernance due to lack of accountability.”

47. We are thus of the view that interpretation of the AtrocitiesAct should promote constitutional values of fraternity and integration ofthe society. This may require check on false implications of innocentcitizens on caste lines.

Issue of anticipatory bail

48. In the light of the above, we first consider the question whetherthere is an absolute bar to the grant of anticipatory bail in which case thecontention for revisiting the validity of the said provision may needconsideration in the light of decisions of this Court relied upon by learnedamicus.

49. Section 18 of the Atrocities Act containing bar against grantof anticipatory bail is as follows:

“Section 438 of the Code not to apply to persons committingan offence under the Act. – Nothing in Section 438 of theCode shall apply in relation to any case involving the arrestof any person on an accusation of having committed anoffence under this Act.”

50. In Balothia (supra), Section 18 was held not to be violativeof Articles 14 and 21 of the Constitution. It was observed that exclusionof Section 438 Cr.P.C. in connection with offences under the Act had tobe viewed in the context of prevailing social conditions and theapprehension that perpetrators of such atrocities are likely to threatenand intimidate the victims and prevent or obstruct them in the prosecutionof these offenders, if they are granted anticipatory bail. Referring to theStatement of Objects and Reasons, it was observed that members ofSC and ST are vulnerable and are denied number of civil rights and theyare subjected to humiliation and harassment. They assert their rightsand demand statutory protection. Vested interests try to cow them downand terrorise them. There was increase in disturbing trend of commissionof atrocities against members of SC and ST. Thus, the persons who are A

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Aalleged to have committed such offences can misuse their liberty, ifanticipatory bail is granted. They can terrorise the victims and preventinvestigation.

51. Though we find merit in the submission of learned amicusthat judgment of this Court in Ram Krishna Balothia (supra) mayBneed to be revisited in view of judgments of this Court, particularlyManeka Gandhi (supra), we consider it unnecessary to refer the matterto the larger Bench as the judgment can be clarified in the light of lawlaid down by this Court. Exclusion of anticipatory bail has been justifiedonly to protect victims of perpetrators of crime. It cannot be read asbeing applicable to those who are falsely implicated for extraneousCreasons and have not committed the offence on prima facie independentscrutiny. Access to justice being a fundamental right, grain has to beseparated from the chaff, by an independent mechanism. Liberty of onecitizen cannot be placed at the whim of another. Law has to protect theinnocent and punish the guilty. Thus considered, exclusion has to beDapplied to genuine cases and not to false ones. This will help in achievingthe object of the law.

52. If the provisions of the Act are compared as against certainother enactments where similar restrictions are put on consideration ofmatter for grant of anticipatory bail or grant of regular bail, an interestingEsituation 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 caseinvolving the arrest of any person on an accusation of having committedan offence punishable under the provisions of this Act…”. Section 17(5)of the TADA Act put further restriction on a person accused of anFoffence punishable under the TADA Act being released on regular bailand one of the conditions was: Where the Public Prosecutor opposesthe application for grant of bail, the court had to be satisfied that therewere reasonable grounds for believing that the accused was not guiltyof such offence and that he was not likely to commit any such offenceGwhile on bail. The provisions of the Unlawful Activities (Prevention)Act, 1967 (for short “the UAPA Act”), namely under Section 43D(4)and 43D(5) are similar to the aforesaid Sections 17(4) and 17(5) of theTADA Act. Similarly the provisions of Maharashtra Control of OrganisedCrime Act, 1999 (for short “MCOC Act”), namely, Sections 21(3) and21(4) are also identical in terms. Thus the impact of release of a personH

accused of having committed the concerned offences under these specialenactments was dealt with by the Legislature not only at the stage ofconsideration of the matter for anticipatory bail but even after the arrestat the stage of grant of regular bail as well. The provisions of the NarcoticDrugs and Psychotropic Substances Act, 1985 (for short “the NDPSAct) are, however, distinct in that the restriction under Section 37 is at astage where the matter is considered for grant of regular bail. No suchrestriction is thought of and put in place at the stage of consideration ofmatter for grant of anticipatory bail. On the other hand, the provisionsof the Act are diametrically opposite and the restriction in Section 18 isonly at the stage of consideration of matter for anticipatory bail and nosuch restriction is available while the matter is to be considered for grantof regular bail. Theoretically it is possible to say that an application underSection 438 of the Code may be rejected by the Court because of expressrestrictions in Section 18 of the Act but the very same court can grantbail under the provisions of Section 437 of the Code, immediately afterthe arrest. There seems to be no logical rationale behind this situation ofputting a fetter on grant of anticipatory bail whereas there is no suchprohibition in any way for grant of regular bail. It is, therefore, all themore necessary and important that the express exclusion under Section18 of the Act is limited to genuine cases and inapplicable where noprima facie case is made out.

53. We have no quarrel with the proposition laid down in the saidjudgment that persons committing offences under the Atrocities Act oughtnot to be granted anticipatory bail in the same manner in which theanticipatory bail is granted in other cases punishable with similar sentence.Still, the question remains whether in cases where there is no primafacie case under the Act, bar under Section 18 operates can beconsidered. We are unable to read the said judgment as laying down thatexclusion is applicable to such situations. If a person is able to showthat, prima facie, he has not committed any atrocity against a member ofSC and ST and that the allegation was mala fide and prima facie falseand that prima facie no case was made out, we do not see any justificationfor applying Section 18 in such cases. Consideration in the mind of thisCourt in Balothia (supra) is that the perpetrators of atrocities should notbe granted anticipatory bail so that they may not terrorise the victims.Consistent with this view, it can certainly be said that innocent personsagainst whom there was no prima facie case or patently false case AB

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Acannot be subjected to the same treatment as the persons who are primafacie perpetrators of the crime.

54. In view of decisions in Vilas Pandurang Pawar (supra) andShakuntla Devi (supra), learned ASG has rightly stated that there isno absolute bar to grant anticipatory bail if no prima facie case is madeBout inspite of validity of Section 18 of the Atrocities Act being upheld.

55. In Hema Mishra versus State of U.P.[53], it has been expresslylaid down that inspite of the statutory bar against grant of anticipatorybail, a Constitutional Court is not debarred from exercising its jurisdictionto grant relief. This Court considered the issue of anticipatory bail whereCsuch provision does not apply. Reference was made to the view in LalKamlendra Pratap Singh versus State of Uttar Pradesh and Ors.[54]to the effect that interim bail can be granted even in such cases withoutaccused being actually arrested. Reference was also made to KartarSingh versus State of Punjab[55]to the effect that jurisdiction underArticle 226 is not barred even in such cases.D

56. It is well settled that a statute is to be read in the context ofthe background and its object. Instead of literal interpretation, the courtmay, in the present context, prefer purposive interpretation to achievethe object of law. Doctrine of proportionality is well known for advancingthe object of Articles 14 and 21. A procedural penal provision affectingEliberty of citizen must be read consistent with the concept of fairnessand reasonableness.

57. A Constitution Bench of this Court in Kedar Nath versusState of Bihar[56]observed:

“26. It is also well settled that in interpreting an enactmentFthe Court should have regard not merely to the literalmeaning of the words used, but also take into considerationthe antecedent history of the legislation, its purpose and themischief it seeks to suppress [vide (1) Bengal ImmunityCompany Limited v. State of Bihar [1955 2 SCR 603] andG(2) R.M.D. Chamarbaugwala v. Union of India[1957 SCR930]. Viewed in that light, we have no hesitation in so H

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

54 (2009) 4 SCC 437

55 (1994) 3 SCC 569 – para 368 (17)

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

construing the provisions of the sections impugned in thesecases as to limit their application to acts involving intentionor tendency to create disorder, or disturbance of law andorder, or incitement to violence.

27. We may also consider the legal position, as it shouldemerge, assuming that the main Section 124-A is capable ofbeing construed in the literal sense in which the JudicialCommittee of the Privy Council has construed it in the casesreferred to above. On that assumption, is it not open to thisCourt to construe the section in such a way as to avoid thealleged unconstitutionality by limiting the application of thesection in the way in which the Federal Court intended toapply it? In our opinion, there are decisions of this Courtwhich amply justify our taking that view of the legal position.This Court, in the case of R.M.D. Chamarbaugwalla v. Unionof India has examined in detail the several decisions of thisCourt, as also of the courts in America and Australia. Afterexamining those decisions, this Court came to the conclusionthat if the impugned provisions of a law come within theconstitutional powers of the legislature by adopting one viewof the words of the impugned section or Act, the Court willtake that view of the matter and limit its applicationaccordingly, in preference to the view which would make itunconstitutional on another view of the interpretation of thewords in question. In that case, the Court had to choosebetween a definition of the expression “Prize Competitions”as limited to those competitions which were of a gamblingcharacter and those which were not. The Court chose theformer interpretation which made the rest of the provisionsof the Act, Prize Competitions Act (42 of 1955), withparticular reference to Sections 4 and 5 of the Act and Rules11 and 12 framed thereunder, valid. The Court held that thepenalty attached only to those competitions which involvedthe element of gambling and those competitions in whichsuccess depended to a substantial degree on skill were heldto be out of the purview of the Act. The ratio decidendi inthat case, in our opinion, applied to the case in hand insofaras we propose to limit its operation only to such activities ascome within the ambit of the observations of the Federal A

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ACourt, that is to say, activities involving incitement to violenceor intention or tendency to create public disorder or causedisturbance of public peace.”

58. In the present context, wisdom of legislature in creating anoffence cannot be questioned but individual justice is a judicial functionBdepending on facts. As a policy, anticipatory bail may be excluded butexclusion cannot be intended to apply where a patently malafide versionis put forward. Courts have inherent jurisdiction to do justice and thisjurisdiction cannot be intended to be excluded. Thus, exclusion of Court’sjurisdiction is not to be read as absolute.

C59. There can be no dispute with the proposition that mereunilateral allegation by any individual belonging to any caste, when suchallegation is clearly motivated and false, cannot be treated as enough todeprive a person of his liberty without an independent scrutiny. Thus,exclusion of provision for anticipatory bail cannot possibly, by anyreasonable interpretation, be treated as applicable when no case is madeDout or allegations are patently false or motivated. If this interpretation isnot taken, it may be difficult for public servants to discharge their bonafide functions and, in given cases, they can be black mailed with thethreat of a false case being registered under the Atrocities Act, withoutany protection of law. This cannot be the scenario in a civilized society.ESimilarly, even a non public servant can be black mailed to surrender hiscivil rights. This is not the intention of law. Such law cannot stand judicialscrutiny. It will fall foul of guaranteed fundamental rights of fair andreasonable procedure being followed if a person is deprived of life andliberty. Thus, literal interpretation cannot be preferred in the presentsituation.F

60. Applying the above well known principle, we hold that theexclusion of Section 438 Cr.P.C. applies when a prima facie case ofcommission of offence under the Atrocities Act is made. On the otherhand, if it can be shown that the allegations are prima facie motivatedand false, such exclusion will not apply.G

61. The Gujarat High Court in Pankaj D Suthar (supra)considered the question whether Section 18 of the Atrocities Act excludesgrant of anticipatory bail when on prima facie judicial scrutiny, allegationsare found to be not free from doubt. The said question was answeredas follows:

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“4. Now undoubtedly it is true that the alleged offence underthe Atrocities Act is a very serious offence and if indeed thecomplaint is ultimately found to be truthful and genuine one,there cannot be any two views about the strictest possibleview taken in such matter. Not only that but if the complaintis also found to be prima facie dependable one that is tosay, free from doubt, then as a warranted under Section 18of the Atrocities Act, even the anticipatory bail to suchaccused has got to be refused. In fact, the Parliament in itsutmost wisdom has rightly evidenced great concern andanxiety over the atrocities which are going on unabatedlyon S.Cs. & S.Ts. by inserting the provisions under Section18 of the Atrocities Act disabling the accused from obtainingthe anticipatory bail under Section 438 of the Code. Thisindeed is a welcome step and in accordance with theaxiomatic truth, viz., ‘the disease grown desperately mustbe treated desperately else not’. The disease of commissionof offences by way of atrocities against the members of S.Cs.and S.Ts. are unabatedly going on since last hundreds ofyears and in the recent past have become alarminglyincreasing and has become so rampant, breath taking andhas reached such a desperate pass that it indeed needed avery stringent and desperate legislation which could helpsave the situation by effectively providing the legal protectionto such cursed, crushed and downtrodden members of S.Cs.& S.Ts. communities. Under such circumstances, it is equallythe paramount duty of every Court to see that it responds tolegislative concern and call and ensure effectiveimplementation of the Atrocities Act, by seeing that theprovisions enshrined in the said Act are duly complied with.But then, what according to this Court is the most welcomestep by way of collective wisdom of the Parliament inushering social beneficial legislation cannot be permitted tobe abused and converted into an instrument to blackmail towreak some personal vengeance for settling and scoringpersonal vendetta or by way of some counter-blasts againstopponents some public servants, as prima facie appears tohave been done in the present case. The basic questions insuch circumstances therefore are-Whether a torch which is A

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lighted to dispel the darkness can it be permitted to set onfire the innocent surroundings? Whether a knife aninstrument which is meant for saving human life by usingthe same in the course of operation by a surgeon, can it bepermitted to be used in taking the life of some innocent? Thevery same fundamental question arises in the facts andcircumstances of this case also, viz., ‘whether any statutelike the present Atrocities Act, especially enacted for thepurposes of protecting weaker sections of the society hailingfrom S.C. & S.T. communities can be permitted to be abusedby conveniently converting the same into a weapon ofwrecking personal vengeance on the opponents?’ Theanswer to this question is undoubtedly and obviously ‘No’.Under such circumstances, if the Courts are to apply suchprovision of Section 18 of the Atrocities Act quitemechanically and blindly merely guided by some generaland popular prejudices based on some words and trickyaccusations in the complaint on mere assumptions withoutintelligently scrutinising and testing the probabilities,truthfulness, genuineness and otherwise dependability of theaccusations in the complaint etc., then it would be simplyunwittingly and credulously playing in the hands of somescheming unscrupulous complainant in denying the justice.Virtually, it would be tentamount to abdicating and relegatingits judicial duty, fanction of doing justice in such matters infavour and hands of such unscrupulous complainant bymaking him a Judge in his own cause. This is simplyunthinkable and therefore impermissible. Whether theprovisions of any particular Act and for that purpose therules made thereunder are applicable to the facts of aparticular case or not, is always and unquestionably a matterwhich lies strictly and exclusively within the domain of‘judicial consideration-discretion’ and therefore neither mereallegations made in the complainant by themselves nor baredenials by the accused can either automatically vest or divestthe Court from discharging its ultimate judicial function-duty to closely scrutinise and test the prima faciedependability of the allegations made in the complaint andreach its own decision.

5. Now reverting to the contents of the complaint andattending circumstances high lighted by Mr. Pardiwala, thelearned Advocate for the petitioner-accused, the same primafacie clearly demonstrates that at this stage the story revealedby the complainant docs not appear to be free from doubt. Ifthat is so, very applicability of the Atrocities Act is rendereddoubtful. If that is the situation, then to refuse theanticipatory bail on mere accusations and assumptions thatthe petitioner-accused has committed an offence under theAtrocities Act would be absolutely illegal, unjudicious, unjustand ultimately a travesty of justice. No Court can ever embarkupon such hazards of refusing anticipatory bail on meredoubtful accusations and assumptions that Atrocities Act isapplicable. No Court could and should be permitted to bo‘spoon-fed’ by the complainant whatever he wants to feedand swallow whatever he wants the Court to gulp down toattain and secure his unjust mala fide motivated ends. Section18 of the Atrocities Act gives a vision, direction and mandateto the Court as to the cases where the anticipatory bail mustbe refused, but it does not and it certainly cannot whisk awaythe right of any Court to have a prima facie judicial scrutinyof the allegations made in the complaint. Nor can it underits hunch permit provisions of law being abused to suit themala fide motivated ends of some unscrupulous complainant.In this case also if indeed this Court been satisfied with thestory revealed by the complainant as truthful and genuine,then anticipatory bail would have been surely rejected rightforth as a matter of course, but since the submissions of Mr.Pardiwala have considerable force, this Court has noalternative but to accept the same in the larger interests ofjustice to see that merely on the count of the firsthandprejudice attempted to be caused by allegations in thecomplaint, the petitioner-accused is not denied his preciousright of the anticipatory bail.

6. In view of the aforesaid discussion, though in a way thelearned A.P.P. is absolutely right when he submitted that noanticipatory bail can be granted to the petitioner-accusedbecause of Section 18 of the Atrocities Act, in the opinion ofthis Court, his submission fails because at this stage it is too AB

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difficult to rule out the probability of the accusations levelledby the complainant against the petitioner-accused havingcommitted an offence under the Atrocities Act being false,vexatious and by way of counterblast as stemming from theulterior motive to humiliate, disgrace and demoralise thepetitioner-accused who is a public servant. When that is theresult and position, there is no question of bypassing ofSection 18 of the Atrocities Act arises as apprehended by thelearned A.P.P. Taking into consideration the facts andcircumstances of this particular case, and in view of theaforesaid discussion, this Misc. Criminal Application foranticipatory bail deserves to be allowed and is allowedaccordingly”

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62. The above view was reiterated in Dr. N.T. Desai (supra),after considering the judgment of this Court in Balothia (supra). It wasobserved that even taking Section 18 of the Atrocities Act to be valid, ifDthe Court, prima-facie, found the story of complainant to be doubtful,the accused could not be allowed to be arrested. Doing so would beunjudicial. It was observed;- “8. To deal first with the preliminary objection raised by thelearned A.P.P. Mr. Desai, it may be stated that the SupremeCourt’s decision rendered in the case of State of M.P. & Anr.v. Ramkishan Balothia (supra) stands on altogether quitedifferent footing where the vires of Section 18 of the Actcame to be decided. The Apex Court has ultimately heldthat Section 18 of the Act was not ultra vires. This Court isindeed in respectful agreement with the aforesaid decisionof the Supreme Court …..…..…..…..…..….......

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But then having closely examined the complaint moreparticularly in the context and light of the backdrop of thepeculiar facts situation highlighted by the petitioner leadingultimately to filing of the complaint, this Court prime facieat the very outset is at some doubt about the complainant’sstory and yet if it readily, mechanically like a gullible childaccepts the allegations made in the complaint at its facevalue, it would be surely blundering and wandering away G

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from the path of bail-justice, making itself readily availablein the hands of the scheming complainant who on mereasking will get arrested accused on some false allegationsof having committed non-bailable offence, under the AtrocityAct, meaning thereby the Court rendering itself quite deaf,dumb and blind mortgaging its commonsense, ordinaryprudence with no perception for justice, denying the rightfulprotection to the accused becoming ready pawn pliable inthe hands of sometime scheming, unscrupulous complainants!!! This sort of a surrender to prima facie doubtful allegationin the complaint is not at all a judicial approach, if notunjudicial !!...”

63. The above judgments correctly lays down the scope ofexclusion as well as permissibility of anticipatory bail in cases under theAtrocities Act and are consistent with the view we take. Section 18 ofthe 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 theDivision Bench of the said High Court in Pravinchandra N Solankiand Ors. versus State of Gujarat[57]. We are unable to accept the saidview for the reasons already given and overrule the same.

64. Concept of “Due process” and principles of 8[th] Amendmentof the U.S. Constitution have been read by this Court as part of guaranteeunder Article 21 of the Constitution. In State of Punjab versus DalbirSingh[58], it was observed :

“80. It has already been noted hereinabove that in ourConstitution the concept of “due process” was incorporatedin view of the judgment of this Court in ManekaGandhi[(1978) 1 SCC 248] The principles of the EighthAmendment have also been incorporated in our laws. Thishas been acknowledged by the Constitution Bench of thisCourt in Sunil Batra [(1978) 4 SCC 494] In Sunil Batracase, SCC para 52 at p. 518 of the Report, Krishna Iyer, J.speaking for the Bench held as follows:

“52. True, our Constitution has no ‘due process’ clause orthe Eighth Amendment; but, in this branch of law, after 57 (2012)1 GLR 499

58 (2012) 3 SCC 346

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ACooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC248] and Maneka Gandhi the consequence is the same. Forwhat is punitively outrageous, scandalisingly unusual orcruel and rehabilitatively counterproductive, is unarguablyunreasonable and arbitrary and is shot down by Articles 14and 19 and if inflicted with procedural unfairness, falls foulBof Article 21.”

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84. The principle of “due process” is an emanation from theMagna Carta doctrine. This was accepted in Americanjurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p. 90: US p. 142). Again this was acknowledged in PlannedParenthood of Southeastern Pennsylvania v. Casey [120 LEd 2d 674] wherein the American Supreme Court observedas follows:

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“The guarantees of due process, though having their rootsin Magna Carta’s ‘per legem terrae’ and considered asprocedural safeguards ‘against executive usurpation andtyranny’, have in this country ‘become bulwarks alsoagainst arbitrary legislation’.”

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85. All these concepts of “due process” and the concept ofa just, fair and reasonable law have been read by this Courtinto the guarantee under Articles 14 and 21 of theConstitution….”

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65. Presumption of innocence is a human right. No doubt, placingof burden of proof on accused in certain circumstances may beFpermissible but there cannot be presumption of guilt so as to deprive aperson of his liberty without an opportunity before an independent forum or Court. In Noor Aga versus State of Punjab[59], it was observed:

“33. Presumption of innocence is a human right as envisagedunder Article 14(2) of the International Covenant on CivilGand Political Rights. It, however, cannot per se be equatedwith the fundamental right and liberty adumbrated in Article21 of the Constitution of India. It, having regard to the extentthereof, would not militate against other statutory provisions

(which, of course, must be read in the light of theconstitutional guarantees as adumbrated in Articles 20 and21 of the Constitution of India).

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35. A right to be presumed innocent, subject to theestablishment of certain foundational facts and burden ofproof, to a certain extent, can be placed on an accused. Itmust be construed having regard to the other internationalconventions and having regard to the fact that it has beenheld to be constitutional. Thus, a statute may beconstitutional but a prosecution thereunder may not be heldto be one. Indisputably, civil liberties and rights of citizensmust be upheld.

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43. The issue of reverse burden vis-à-vis the human rightsregime must also be noticed. The approach of the commonlaw is that it is the duty of the prosecution to prove a personguilty. Indisputably, this common law principle was subjectto parliamentary legislation to the contrary. The concernnow shown worldwide is that Parliaments had frequentlybeen making inroads on the basic presumption of innocence.Unfortunately, unlike other countries no systematic studyhas been made in India as to how many offences are triablein the court where the legal burden is on the accused. In theUnited Kingdom it is stated that about 40% of the offencestriable in the Crown Court appear to violate the presumption.(See “The Presumption of Innocence in English CriminalLaw”, 1996, CRIM. L. REV. 306, at p. 309.)

44. In Article 11(1) of the Universal Declaration of HumanRights (1948) it is stated:

“Everyone charged with a penal offence has the right to bepresumed innocent until proved guilty according to law….”

Similar provisions have been made in Article 6.2 of theEuropean Convention for the Protection of Human Rightsand Fundamental Freedoms (1950) and Article 14.2 of theInternational Covenant on Civil and Political Rights (1966).

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47. We may notice that Sachs, J. in State v. Coetzee [1997(2)LRC 593] explained the significance of the presumption ofinnocence in the following terms:

“There is a paradox at the heart of all criminal procedure inBthat the more serious the crime and the greater the publicinterest in securing convictions of the guilty, the moreimportant do constitutional protections of the accusedbecome. The starting point of any balancing enquiry whereconstitutional rights are concerned must be that the publicCinterest in ensuring that innocent people are not convictedand subjected to ignominy and heavy sentences massivelyoutweighs the public interest in ensuring that a particularcriminal is brought to book. … Hence the presumption ofinnocence, which serves not only to protect a particularindividual on trial, but to maintain public confidence in theDenduring integrity and security of the legal system. Referenceto the prevalence and severity of a certain crime thereforedoes not add anything new or special to the balancingexercise. The perniciousness of the offence is one of thegivens, against which the presumption of innocence is pittedEfrom the beginning, not a new element to be put into thescales as part of a justificatory balancing exercise. If thiswere not so, the ubiquity and ugliness argument could beused in relation to murder, rape, car-jacking, housebreaking,drug-smuggling, corruption … the list is unfortunately almostendless, and nothing would be left of the presumption ofFinnocence, save, perhaps, for its relic status as a doughtydefender of rights in the most trivial of cases.”

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In view of the above, an accused is certainly entitled to show tothe Court, if he apprehends arrest, that case of the complainant wasmotivated. If it can be so shown there is no reason that the Court is notGable to protect liberty of such a person. There cannot be any mandateunder the law for arrest of an innocent. The law has to be interpretedaccordingly.

66. We have already noted the working of the Act in the lastthree decades. It has been judicially acknowledged that there areHinstances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle privatecivil disputes arising out of property, monetary disputes, employmentdisputes and seniority disputes[60]. It may be noticed that by way oframpant misuse complaints are ‘largely being filed particularly againstPublic Servants/quasi judicial/judicial officers with oblique motivefor satisfaction of vested interests’[61].

67. Innocent citizens are termed as accused, which is not intendedby the legislature. The legislature never intended to use the AtrocitiesAct as an instrument to blackmail or to wreak personal vengeance. TheAct is also not intended to deter public servants from performing theirbona fide duties. Thus, unless exclusion of anticipatory bail is limited togenuine cases and inapplicable to cases where there is no prima faciecase was made out, there will be no protection available to innocentcitizens. Thus, limiting the exclusion of anticipatory bail in such cases isessential for protection of fundamental right of life and liberty underArticle 21 of the Constitution.

68. Accordingly, we have no hesitation in holding that exclusionof provision for anticipatory bail will not apply when no prima faciecase is made out or the case is patently false or mala fide. This mayhave to be determined by the Court concerned in facts and circumstancesof each case in exercise of its judicial discretion. In doing so, we arereiterating a well established principle of law that protection of innocentagainst abuse of law is part of inherent jurisdiction of the Court beingpart of access to justice and protection of liberty against any oppressiveaction such as mala fide arrest. In doing so, we are not diluting theefficacy of Section 18 in deserving cases where Court finds a case to beprima facie genuine warranting custodial interrogation and pre-trial arrestand detention.

69. In Lal Kamlendra Pratap(supra), this Court held that evenif there is no provision for anticipatory bail, the Court can grant interimbail in suitable cases. It was observed :

“6. Learned counsel for the appellant apprehends that theappellant will be arrested as there is no provision foranticipatory bail in the State of U.P. He placed reliance on adecision of the Allahabad High Court in Amarawati v. State 60 Dhiren Praful bhai (supra)

61 Sharad (supra)

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of U.P. [2005 Crl LJ 755 (All)] in which a seven-Judge FullBench of the Allahabad High Court held that the court, if itdeems fit in the facts and circumstances of the case, maygrant interim bail pending final disposal of the bailapplication. The Full Bench also observed that arrest is nota must whenever an FIR of a cognizable offence is lodged.The Full Bench placed reliance on the decision of this Courtin Joginder Kumar v. State of U.P.[(1992) 4 SCC 260]

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7. We fully agree with the view of the High Court inAmarawati case and we direct that the said decision befollowed by all courts in U.P. in letter and spirit, particularlysince the provision for anticipatory bail does not exist inU.P.

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8. In appropriate cases interim bail should be grantedpending disposal of the final bail application, since arrestand detention of a person can cause irreparable loss to aperson’s reputation, as held by this Court in Joginder Kumarcase. Also, arrest is not a must in all cases of cognizableoffences, and in deciding whether to arrest or not the policeofficer must be guided and act according to the principleslaid down in Joginder Kumar case.”

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E70. In Vikas Pandurang case (supra), it was observed :

“10. …..When an offence is registered against a personunder the provisions of the SC/ST Act, no court shall entertainan application for anticipatory bail, unless it prima faciefinds that such an offence is not made out.”

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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 appliesto arrests under the Atrocities Act. Protection of innocent is as importantas punishing the guilty.

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72. In Dadu alias Tulsidas versus State of Maharashtra[62]while considering the validity of exclusion of bail by an appellate court inNDPS cases, this Court noted the submission that the legislature couldnot take away judicial powers by statutory prohibition against suspending H62 (2000) 8 SCC 437

the sentence during the pendency of the appeal. This is an essentialjudicial function. The relevant observations are:

“16. Learned counsel appearing for the parties were moreconcerned with the adverse effect of the section on the powersof the judiciary. Impliedly conceding that the section wasvalid so far as it pertained to the appropriate Government,it was argued that the legislature is not competent to takeaway the judicial powers of the court by statutory prohibitionas is shown to have been done vide the impugned section.Awarding sentence, upon conviction, is concededly a judicialfunction to be discharged by the courts of law establishedin the country. It is always a matter of judicial discretion,however, subject to any mandatory minimum sentenceprescribed by the law. The award of sentence by a criminalcourt wherever made subject to the right of appeal cannotbe interfered or intermeddled with in a way which amountsto not only interference but actually taking away the powerof judicial review. Awarding the sentence and considerationof its legality or adequacy in appeal is essentially a judicialfunction embracing within its ambit the power to suspendthe 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 legislaturewanted exclusion of judicial function of going into correctness or otherwiseof the allegation in a criminal case before liberty of a person is takenaway. The legislature could not have intended that any unilateral versionshould be treated as conclusive and the person making such allegationshould be the sole judge of its correctness to the exclusion of judicialfunction of courts of assessing the truth or otherwise of the rivalcontentions 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 isshown to bona fide and that prima facie it falls under the Atrocities Actand not otherwise. Section 18 does not apply where there is no primafacie case or to cases of patent false implication or when the allegationis motivated for extraneous reasons. We approve the view of the GujaratHigh 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.

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75. We may now deal with the issue as to what directions, if any,are necessary, apart from clarifying the legal position with regard toanticipatory bail. The under privileged need to be protected against anyatrocities to give effect to the Constitutional ideals. The Atrocities ActBhas been enacted with this objective. At the same time, the said Actcannot be converted into a charter for exploitation or oppression by anyunscrupulous person or by police for extraneous reasons against othercitizens as has been found on several occasions in decisions referred toabove. Any harassment of an innocent citizen, irrespective of caste orreligion, is against the guarantee of the Constitution. This Court mustCenforce such a guarantee. Law should not result in caste hatred. Thepreamble to the Constitution, which is the guiding star for interpretation,incorporates the values of liberty, equality and fraternity.

76. We are satisfied, in the light of statistics already referred aswell as cited decisions and observations of the Standing Committee ofDParliament that there is need to safeguard innocent citizens against falseimplication and unnecessary arrest for which there is no sanction underthe law which is against the constitutional guarantee and law of arrestlaid down by this Court.

77. We are conscious that normal rule is to register FIR if anyEinformation discloses commission of a cognizable offence. There arehowever, exceptions to this rule. In Lalita Kumari versus State ofU.P.[63], it was observed :

“115. Although, we, in unequivocal terms, hold that Section154 of the Code postulates the mandatory registration ofFFIRs on receipt of all cognizable offences, yet, there may beinstances where preliminary inquiry may be required owingto the change in genesis and novelty of crimes with thepassage of time. One such instance is in the case ofallegations relating to medical negligence on the part ofGdoctors. It will be unfair and inequitable to prosecute amedical professional only on the basis of the allegations inthe complaint.

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117. In the context of offences relating to corruption, thisCourt in P. Sirajuddin [(1970) 1 SCC 595] expressed theneed for a preliminary inquiry before proceeding againstpublic servants.

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120.6. As to what type and in which cases preliminary inquiryis to be conducted will depend on the facts and circumstancesof each case. The category of cases in which preliminaryinquiry 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 initiatingcriminal prosecution, for example, over 3 months’ delay inreporting the matter without satisfactorily explaining thereasons for delay.

The aforesaid are only illustrations and not exhaustive ofall conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accusedand the complainant, a preliminary inquiry should be madetime-bound and in any case it should not exceed 7 days.The fact of such delay and the causes of it must be reflectedin the General Diary entry.”

78. The above view is consistent with earlier judgments in Stateof U.P. versus Bhagwant Kishore Joshi[64] and P. Sirajuddin versusState of Madras[65]. In Bhagwant Kishore it was observed:

“… … …In the absence of any prohibition in the Code,express or implied, I am of opinion that it is open to a PoliceOfficer to make preliminary enquiries before registering anoffence and making a full scale investigation into it. Nodoubt, Section 5A of the Prevention of Corruption Act was 64 AIR 1964 SC 221 = 1964(3) SCR 221

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enacted for preventing harassment to a Government servantand with this object in view investigation, except with theprevious permission of a Magistrate, is not permitted to bemade by an officer below the rank of a DeputySuperintendent of Police. Where however, a Police Officermakes some preliminary enquiries, does not arrest or evenquestion an accused or question any witnesses but merelymakes a few discreet enquiries or looks at some documentswithout making any notes, it is difficult to visualize how anypossible harassment or even embarrassment would resulttherefrom to the suspect or the accused person. … …”

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In Sirajuddin (supra) it was observed:

“17. … …Before a public servant, whatever be his status, ispublicly charged with acts of dishonesty which amount toserious misdemeanour or misconduct of the type alleged inthis case and a first information is lodged against him, thereDmust be some suitable preliminary enquiry into the allegationsby a responsible officer. The lodging of such a report againsta person, specially one who like the appellant occupied thetop position in a department, even if baseless, would doincalculable harm not only to the officer in particular but toEthe department he belonged to, in general. If the Governmenthad set up a Vigilance and Anti-Corruption Department aswas done in the State of Madras and the said departmentwas entrusted with enquiries of this kind, no exception canof taken to an enquiry by officers of this department butany such enquiry must proceed in a fair and reasonableFmanner. … …”

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79. We are of the view that cases under the Atrocities Act alsofall in exceptional category where preliminary inquiry must be held. Suchinquiry must be time-bound and should not exceed seven days in view ofdirections in Lalita Kumari (supra).G

80. Even if preliminary inquiry is held and case is registered, arrestis not a must as we have already noted. In Lalita Kumari (supra) itwas observed:

“107. While registration of FIR is mandatory, arrest of theaccused immediately on registration of FIR is not at all H

mandatory. In fact, registration of FIR and arrest of anaccused person are two entirely different concepts underthe law, and there are several safeguards available againstarrest. Moreover, it is also pertinent to mention that anaccused person also has a right to apply for “anticipatorybail” under the provisions of Section 438 of the Code if theconditions mentioned therein are satisfied. Thus, inappropriate cases, he can avoid the arrest under thatprovision by obtaining an order from the court.”

81. Accordingly, we direct that in absence of any other independentoffence calling for arrest, in respect of offences under the AtrocitiesAct, no arrest may be effected, if an accused person is a public servant,without written permission of the appointing authority and if such a personis not a public servant, without written permission of the SeniorSuperintendent of Police of the District. Such permissions must be grantedfor recorded reasons which must be served on the person to be arrestedand to the concerned court. As and when a person arrested is producedbefore the Magistrate, the Magistrate must apply his mind to the reasonsrecorded and further detention should be allowed only if the reasonsrecorded are found to be valid. To avoid false implication, before FIR isregistered, preliminary enquiry may be made whether the case falls inthe 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 thesubmissions of learned amicus that the proceedings against the appellantare liable to be quashed.

Conclusions

83. Our conclusions are as follows:

i)Proceedings in the present case are clear abuse of processof court and are quashed.

ii)There is no absolute bar against grant of anticipatory bail incases under the Atrocities Act if no prima facie case ismade out or where on judicial scrutiny the complaint is foundto be prima facie mala fide. We approve the view takenand approach of the Gujarat High Court in Pankaj D Suthar(supra) and Dr. N.T. Desai (supra) and clarify the A

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Ajudgments of this Court in Balothia (supra) and ManjuDevi (supra);

iii)In view of acknowledged abuse of law of arrest in casesunder the Atrocities Act, arrest of a public servant can onlybe after approval of the appointing authority and of a non-Bpublic servant after approval by the S.S.P. which may begranted in appropriate cases if considered necessary forreasons recorded. Such reasons must be scrutinized bythe Magistrate for permitting further detention.

iv)To avoid false implication of an innocent, a preliminaryCenquiry may be conducted by the DSP concerned to findout whether the allegations make out a case under theAtrocities Act and that the allegations are not frivolous ormotivated.

v)Any violation of direction (iii) and (iv) will be actionable byDway of disciplinary action as well as contempt.

The above directions are prospective.

84. Before parting with the judgment, we place on record oursincere appreciation for the invaluable assistance rendered by learnedAmicus and also assistance rendered by learned counsel who haveEappeared in this case.

The appeal is accordingly allowed in the above terms.

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Divya Pandey Appeal allowed.

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