Concerning the applicability of provisions of section 438 Cr.PC, it
shall not apply to the cases under Act of 1989. However, if the
complaint does not make out a prima facie case for applicability of the
provisions of the Act of 1989, the bar created by section 18 and 18A (i)
shall not apply.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION [C] NO. 1015 OF 2018
PRATHVI RAJ CHAUHAN Vs UNION OF INDIA
ARUN MISHRA, J.
Dated:February 10, 2020
1. The petitioners have questioned the provisions inserted by way
of carving out section 18A of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as
well as section 18A, are reproduced hereunder:
“18. Section 438 of the Code not to apply to persons committing an
offence under the Act.—Nothing in section 438 of the Code shall
apply in relation to any case involving the arrest of any person on an
accusation of having committed an offence under this Act.”
“Section 18A. (i) For the purpose of this Act,-
(a) preliminary enquiry shall be required for registration of a First
Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if
necessary, of any person, against whom an accusation of having
committed an offence under this Act has been made, and no procedure
other than that provided under this Act or the Code shall apply.
2
(ii) The provisions of section 438 of the Code shall not apply to a case
under this Act, notwithstanding any judgment or order or direction of
any Court.”
2. It is submitted that section 18A has been enacted to nullify the
judgment of this Court in Dr. Subhash Kashinath Mahajan v. The State
of Maharashtra & Anr., (2018) 6 SCC 454, in which following
directions were issued:
“83. Our conclusions are as follows:
(i) Proceedings in the present case are clear abuse of process of court
and are quashed.
(ii) There is no absolute bar against grant of anticipatory bail in cases
under the Atrocities Act if no prima facie case is made out or where on
judicial scrutiny the complaint is found to be prima facie mala fide.
We approve the view taken and approach of the Gujarat High Court in
Pankaj D. Suthar (supra) and Dr. N.T. Desai (supra) and clarify the
judgments of this Court in Balothia (supra) and Manju Devi (supra);
(iii) In view of acknowledged abuse of law of arrest in cases under the
Atrocities Act, arrest of a public servant can only be after approval of
the appointing authority and of a non-public servant after approval by
the S.S.P. which may be granted in appropriate cases if considered
necessary for reasons recorded. Such reasons must be scrutinised by
the Magistrate for permitting further detention.
(iv) To avoid false implication of an innocent, a preliminary enquiry
may be conducted by the DSP concerned to find out whether the
allegations make out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.
(v) Any violation of directions (iii) and (iv) will be actionable by way
of disciplinary action as well as contempt.
The above directions are prospective.”
3. It has been submitted that this Court has noted in Dr. Subhash
Kashinath (supra) that the provisions of the Act of 1989 are being
misused as such the amendment is arbitrary, unjust, irrational and
violative of Article 21 of the Constitution of India. There could not have
been any curtailment of the right to obtain anticipatory bail under
3
section 438 Cr.PC. Prior scrutiny and proper investigation are
necessary. Most of the safeguards have been provided under the Act of
1989 to prevent undue harassment. This Court has struck down the
provision of section 66A of the Information Technology Act on the
ground of violation of fundamental rights; on the same anvil, the
provisions of section 18A of the Act of 1989 deserve to be struck down.
4. It is not disputed at the Bar that the provisions in section 18A in
the Act of 1989 had been enacted because of the judgment passed by
this Court in Dr. Subhash Kashinath's case (supra), mainly because of
direction Nos (iii) to (v) contained in para 83. The Union of India had
filed review petitions, and the same have been allowed, and direction
Nos (iii) to (v) have been recalled. Thus, in view of the judgment passed
in the review petitions, the matter is rendered of academic importance
as we had restored the position as prevailed by various judgments that
were in vogue before the matter of Dr. Subhash Kashinath (supra) was
decided. We are not burdening the decision as facts and reasons have
been assigned in detail while deciding review petitions on 1.10.2019
and only certain clarifications are required in view of the provisions
carved out in section 18A. There can be protective discrimination, not
reverse one. We have dealt with various questions in the review
petitions while deciding the same as under:
“36. In the light of the discussion mentioned above of legal principles,
we advert to directions issued in paragraph 83. Direction Nos. (iii) and
4
(iv) and consequential direction No. (v) are sought to be
reviewed/recalled. Directions contain the following aspects: -
1. That arrest of a public servant can only be after approval of the
appointing authority.
2. The arrest of a non-public servant after approval by the Senior
Superintendent of Police (SSP).
3. The arrest may be in an appropriate case if considered necessary for
reasons to be recorded;
4. Reasons for arrest must be scrutinised by the Magistrate for
permitting further detention;
5. Preliminary enquiry to be conducted by the Dy. S.P. level officers
to find out whether the allegations make out a case and that the
allegations are not frivolous or motivated.
6. Any violation of the directions mentioned above will be actionable by
way of disciplinary action as well as contempt.
37. Before we dilate upon the aforesaid directions, it is necessary to
take note of certain aspects. It cannot be disputed that as the members of
the Scheduled Castes and Scheduled Tribes have suffered for long; the
protective discrimination has been envisaged under Article 15 of the
Constitution of India and the provisions of the Act of 1989 to make them
equals.
38. All the offences under the Atrocities Act are cognizable. The
impugned directions put the riders on the right to arrest. An accused
cannot be arrested in atrocities cases without the concurrence of the
higher Authorities or appointing authority as the case may be. As per the
existing provisions, the appointing authority has no power to grant or
withhold sanction to arrest concerning a public servant.
39. The National Commission for Scheduled Castes Annual Report
2015-16, has recommended for prompt registration of FIRs thus:
"The Commission has noted with concern that instances of procedural
lapses are frequent while dealing atrocity cases by both police and civil
administration. There are delays in the judicial process of the cases. The
Commission, therefore, identified lacunae commonly noticed during
police investigation, as also preventive/curable actions the civil
administration can take. NCSC recommends the correct and timely
application of SC/ST (PoA) Amendment Act, 2015 and Amendment
Rules of 2016 as well as the following for improvement:
“8.6.1 Registration of FIRs - The Commission has observed that
the police often resort to preliminary investigation upon receiving a
complaint in writing before lodging the actual FIRs. As a result, the
SC victims have to resort to seeking directions from courts for
registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme Court
has also on more than one occasion emphasized about registration
of FIR first. This Commission again reemphasizes that the State /
UT Governments should enforce prompt registration of FIRs.”
(emphasis supplied)
5
40. The learned Attorney General pointed out that the statistics
considered by the Court in the judgment under review indicate that 9 to
10 percent cases under the Act were found to be false. The percentage of
false cases concerning other general crimes such as forgery is
comparable, namely 11.51 percent and for kidnapping and abduction, it is
8.85 percent as per NCRB data for the year 2016. The same can be taken
care of by the Courts under Section 482, and in case no prima facie case
is made out, the Court can always consider grant of anticipatory bail and
power of quashing in appropriate cases. For the low conviction rate, he
submitted that same is the reflection of the failure of the criminal justice
system and not an abuse of law. The witnesses seldom come to support
down-trodden class, biased mindset continues, and they are pressurised in
several manners, and the complainant also hardly muster the courage.
41. As to prevailing conditions in various areas of the country, we are
compelled to observe that SCs/STs are still making the struggle for
equality and for exercising civil rights in various areas of the country.
The members of the Scheduled Castes and Scheduled Tribes are still
discriminated against in various parts of the country. In spite of
reservation, the fruits of development have not reached to them, by and
large, they remain unequal and vulnerable section of the society. The
classes of Scheduled Castes and Scheduled Tribes have been suffering
ignominy and abuse, and they have been outcast socially for the
centuries. The efforts for their upliftment should have been percolated
down to eradicate their sufferings.
42. Though, Article 17 of the Constitution prohibits untouchability,
whether untouchability has vanished? We have to find the answer to all
these pertinent questions in the present prevailing social scenario in
different parts of the country. The clear answer is that untouchability
though intended to be abolished, has not vanished in the last 70 years. We
are still experimenting with ‘tryst with destiny.' The plight of
untouchables is that they are still denied various civil rights; the
condition is worse in the villages, remote areas where fruits of
development have not percolated down. They cannot enjoy equal civil
rights. So far, we have not been able to provide the modern methods of
scavenging to Harijans due to lack of resources and proper planning and
apathy. Whether he can shake hand with a person of higher class on
equal footing? Whether we have been able to reach that level of psyche
and human dignity and able to remove discrimination based upon caste?
Whether false guise of cleanliness can rescue the situation, how such
condition prevails and have not vanished, are we not responsible? The
answer can only be found by soul searching. However, one thing is sure
that we have not been able to eradicate untouchability in a real sense as
envisaged and we have not been able to provide down-trodden class the
fundamental civil rights and amenities, frugal comforts of life which
make life worth living. More so, for Tribals who are at some places still
kept in isolation as we have not been able to provide them even basic
amenities, education and frugal comforts of life in spite of spending a
considerable amount for the protection, how long this would continue.
Whether they have to remain in the status quo and to entertain civilized
6
society? Whether under the guise of protection of the culture, they are
deprived of fruits of development, and they face a violation of traditional
rights?
43. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963 SC
1295, this Court has observed that the right to life is not merely an
animal's existence. Under Article 21, the right to life includes the right to
live with dignity. Basic human dignity implies that all the persons are
treated as equal human in all respects and not treated as an untouchable,
downtrodden, and object for exploitation. It also implies that they are not
meant to be born for serving the elite class based upon the caste. The
caste discrimination had been deep-rooted, so the consistent effort is on
to remove it, but still, we have to achieve the real goal. No doubt we
have succeeded partially due to individual and collective efforts.
44. The enjoyment of quality life by the people is the essence of
guaranteed right under Article 21 of the Constitution, as observed in
Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with
human dignity is included in the right to life as observed in Francis
Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC
746, Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gender
injustice, pollution, environmental degradation, malnutrition, social
ostracism of Dalits are instances of human rights violations as observed
by this Court in People’s Union for Civil Liberties v. Union of India,
(2005) 2 SCC 436:
"34. The question can also be examined from another angle. The
knowledge or experience of a police officer of human rights
violation represents only one facet of human rights violation and
its protection, namely, arising out of crime. Human rights
violations are of various forms which besides police brutality are
— gender injustice, pollution, environmental degradation,
malnutrition, social ostracism of Dalits, etc. A police officer can
claim to have experience of only one facet. That is not the
requirement of the section." (emphasis supplied)
45. There is right to live with dignity and also right to die with dignity.
For violation of human rights under Article 21 grant of compensation is
one of the concomitants which has found statutory expression in the
provisions of compensation, to be paid in case an offence is committed
under the provisions of the Act of 1989. A good reputation is an element
of personal security and is protected by the Constitution equally with the
right to the enjoyment of life, liberty, and property. Therefore, it has been
held to be an essential element of the right to life of a citizen under
Article 21 as observed by this Court in Umesh Kumar v. State of Andhra
Pradesh, (2013) 10 SCC 591, Kishore Samrite v. State of Uttar Pradesh,
(2013) 2 SCC 398 and Subramanian Swamy v. Union of India, (2016) 7
SCC 221. The provisions of the Act of 1989 are, in essence, concomitants
covering various facets of Article 21 of the Constitution of India.
46. They do labour, bonded or forced, in agricultural fields, which is
not abrogated in spite of efforts. In certain areas, women are not treated
7
with dignity and honour and are sexually abused in various forms. We
see sewer workers dying in due to poisonous gases in chambers. They
are like death traps. We have not been able to provide the masks and
oxygen cylinders for entering in sewer chambers, we cannot leave them
to die like this and avoid tortious liability concerned with
officials/machinery, and they are still discriminated within the society in
the matter of enjoying their civil rights and cannot live with human
dignity.
47. The Constitution of India provides equality before the law under
the provisions contained in Article 14. Article 15(4) of the Constitution
carves out an exception for making any special provision for the
advancement of any socially and educationally backward classes of
citizens or SCs. and STs. Further protection is conferred under Article
15(5) concerning their admission to educational institutions, including
private educational institutions, whether aided or unaided by the State,
other than the minority educational institutions. Historically
disadvantageous groups must be given special protection and help so that
they can be uplifted from their poverty and low social status as observed
in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC 793. The
legislature has to attempt such incumbents be protected under Article
15(4), to deal with them with more rigorous provisions as compared to
provisions of general law available to the others would create inequality
which is not permissible/envisaged constitutionally. It would be an action
to negate mandatory constitutional provisions not supported by the
constitutional scheme; rather, it would be against the mandated
constitutional protection. It is not open to the legislature to put members
of the Scheduled Castes and Scheduled Tribes in a disadvantageous
position vis-à-vis others and in particular to so-called upper
castes/general category. Thus, they cannot be discriminated against more
so when we have a peep into the background perspective. What
legislature cannot do legitimately, cannot be done by the interpretative
process by the courts.
48. The particular law, i.e., Act of 1989, has been enacted and has also
been amended in 2016 to make its provisions more effective. Special
prosecutors are to be provided for speedy trial of cases. The incentives
are also provided for rehabilitation of victims, protection of witnesses
and matters connected therewith.
49. There is no presumption that the members of the Scheduled Castes
and Scheduled Tribes may misuse the provisions of law as a class and it
is not resorted to by the members of the upper Castes or the members of
the elite class. For lodging a false report, it cannot be said that the caste
of a person is the cause. It is due to the human failing and not due to the
caste factor. Caste is not attributable to such an act. On the other hand,
members of the Scheduled Castes and Scheduled Tribes due to
backwardness hardly muster the courage to lodge even a first information
report, much less, a false one. In case it is found to be
false/unsubstantiated, it may be due to the faulty investigation or for
other various reasons including human failings irrespective of caste
8
factor. There may be certain cases which may be false that can be a
ground for interference by the Court, but the law cannot be changed due
to such misuse. In such a situation, it can be taken care in proceeding
under section 482 of the Cr.PC.
50. The data of National Crime Records Bureau, Ministry of Home
Affairs, has been pointed out on behalf of Union of India which indicates
that more than 47,000 cases were registered in the year 2016 under the
Act of 1989. The number is alarming, and it cannot be said that it is due
to the outcome of the misuse of the provisions of the Act.
51. As a matter of fact, members of the Scheduled Castes and
Scheduled Tribes have suffered for long, hence, if we cannot provide
them protective discrimination beneficial to them, we cannot place them
at all at a disadvantageous position that may be causing injury to them by
widening inequality and against the very spirit of our Constitution. It
would be against the basic human dignity to treat all of them as a liar or
as a crook person and cannot look at every complaint by such
complainant with a doubt. Eyewitnesses do not come up to speak in their
favour. They hardly muster the courage to speak against upper caste, that
is why provisions have been made by way of amendment for the
protection of witnesses and rehabilitation of victims. All humans are
equal including in their frailings. To treat SCs. and STs. as persons who
are prone to lodge false reports under the provisions of the Scheduled
Castes and Scheduled Tribes Act for taking revenge or otherwise as
monetary benefits made available to them in the case of their being
subjected to such offence, would be against fundamental human equality.
It cannot be presumed that a person of such class would inflict injury
upon himself and would lodge a false report only to secure monetary
benefits or to take revenge. If presumed so, it would mean adding insult
to injury, merely by the fact that person may misuse provisions cannot be
a ground to treat class with doubt. It is due to human failings, not due to
the caste factor. The monetary benefits are provided in the cases of an
acid attack, sexual harassment of SC/ST women, rape, murder, etc. In
such cases, FIR is required to be registered promptly.
52. It is an unfortunate state of affairs that the caste system still
prevails in the country and people remain in slums, more particularly,
under skyscrapers, and they serve the inhabitants of such buildings.
53. To treat such incumbents with a rider that a report lodged by an
SCs/STs category, would be registered only after a preliminary
investigation by Dy. S.P., whereas under Cr.PC a complaint lodged
relating to cognizable offence has to be registered forthwith. It would
mean a report by upper-caste has to be registered immediately and arrest
can be made forthwith, whereas, in case of an offence under the Act of
1989, it would be conditioned one. It would be opposed to the protective
discrimination meted out to the members of the Scheduled Castes and
Scheduled Tribes as envisaged under the Constitution in Articles 15, 17
and 21 and would tantamount to treating them as unequal, somewhat
9
supportive action as per the mandate of Constitution is required to make
them equals. It does not prima facie appear permissible to look them
down in any manner. It would also be contrary to the procedure
prescribed under the Cr.PC and contrary to the law laid down by this
Court in Lalita Kumari (supra).
54. The guidelines in (iii) and (iv) appear to have been issued in view
of the provisions contained in Section 18 of the Act of 1989; whereas
adequate safeguards have been provided by a purposive interpretation by
this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221.
The consistent view of this Court that if prima facie case has not been
made out attracting the provisions of SC/ST Act of 1989, in that case, the
bar created under section 18 on the grant of anticipatory bail is not
attracted. Thus, misuse of the provisions of the Act is intended to be
taken care of by the decision above. In Kartar Singh (supra), a
Constitution Bench of this Court has laid down that taking away the said
right of anticipatory bail would not amount to a violation of Article 21 of
the Constitution of India. Thus, prima facie it appears that in the case of
misuse of provisions, adequate safeguards are provided in the decision
mentioned above.
55. That apart directions (iii) and (iv) issued may delay the
investigation of cases. As per the amendment made in the Rules in the
year 2016, a charge sheet has to be filed to enable timely commencement
of the prosecution. The directions issued are likely to delay the timely
scheme framed under the Act/Rules.
In re: sanction of the appointing authority :
56. Concerning public servants, the provisions contained in Section
197, Cr.PC provide protection by prohibiting cognizance of the offence
without the sanction of the appointing authority and the provision cannot
be applied at the stage of the arrest. That would run against the spirit of
Section 197, Cr.PC. Section 41, Cr.PC authorises every police officer to
carry out an arrest in case of a cognizable offence and the very definition
of a cognizable offence in terms of Section 2(c) of Cr.PC is one for which
police officer may arrest without warrant.
57. In case any person apprehends that he may be arrested, harassed
and implicated falsely, he can approach the High Court for quashing the
FIR under Section 482 as observed in State of Orissa v. Debendra Nath
Padhi, (2005) 1 SCC 568.
58. While issuing guidelines mentioned above approval of appointing
authority has been made imperative for the arrest of a public servant
under the provisions of the Act in case, he is an accused of having
committed an offence under the Act of 1989. Permission of the
appointing authority to arrest a public servant is not at all statutorily
envisaged; it is encroaching on a field which is reserved for the
legislature. The direction amounts to a mandate having legislative colour
which is a field not earmarked for the Courts.
10
59. The direction is discriminatory and would cause several legal
complications. On what basis the appointing authority would grant
permission to arrest a public servant? When the investigation is not
complete, how it can determine whether public servant is to be arrested
or not? Whether it would be appropriate for appointing authority to look
into case diary in a case where its sanction for prosecution may not be
required in an offence which has not happened in the discharge of official
duty. Approaching appointing authority for approval of arrest of a public
servant in every case under the Act of 1989 is likely to consume
sufficient time. The appointing authority is not supposed to know the
ground realities of the offence that has been committed, and arrest
sometimes becomes necessary forthwith to ensure further progress of the
investigation itself. Often the investigation cannot be completed without
the arrest. There may not be any material before the appointing authority
for deciding the question of approval. To decide whether a public servant
should be arrested or not is not a function of appointing authority, it is
wholly extra-statutory. In case appointing authority holds that a public
servant is not to be arrested and declines approval, what would happen,
as there is no provision for grant of anticipatory bail. It would
tantamount to take away functions of Court. To decide whether an
accused is entitled to bail under Section 438 in case no prima facie case
is made out or under Section 439 is the function of the Court. The
direction of appointing authority not to arrest may create conflict with the
provisions of Act of 1989 and is without statutory basis.
60. By the guidelines issued, the anomalous situation may crop up in
several cases. In case the appointing authority forms a view that as there
is no prima facie case the incumbent is not to be arrested, several
complications may arise. For the arrest of an offender, maybe a public
servant, it is not the provision of the general law of Cr.PC that permission
of the appointing authority is necessary. No such statutory protection
provided to a public servant in the matter of arrest under the IPC and the
Cr.PC as such it would be discriminatory to impose such rider in the
cases under the Act of 1989. Only in the case of discharge of official
duties, some offence appears to have been committed, in that case,
sanction to prosecute may be required and not otherwise. In case the act
is outside the purview of the official discharge of duty, no such sanction
is required.
61. The appointing authority cannot sit over an FIR in case of
cognizable, non-bailable offense and investigation made by the Police
Officer; this function cannot be conferred upon the appointing authority
as it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, this
rider cannot be imposed in respect of the cases under the Act of 1989,
may be that provisions of the Act are sometimes misused, exercise of
power of approval of arrest by appointing authority is wholly
impermissible, impractical besides it encroaches upon the field reserved
for the legislature and is repugnant to the provisions of general law as no
such rider is envisaged under the general law.
11
62. Assuming it is permissible to obtain the permission of appointing
authority to arrest accused, would be further worsening the position of
the members of the Scheduled Castes and Scheduled Tribes. If they are
not to be given special protection, they are not to be further put in a
disadvantageous position. The implementation of the condition may
discourage and desist them even to approach the Police and would cast a
shadow of doubt on all members of the Scheduled Castes and Scheduled
Tribes which cannot be said to be constitutionally envisaged. Other
castes can misuse the provisions of law; also, it cannot be said that
misuse of law takes place by the provisions of Act of 1989. In case the
direction is permitted to prevail, days are not far away when writ petition
may have to be filed to direct the appointing authority to consider
whether accused can be arrested or not and as to the reasons recorded by
the appointing authority to permit or deny the arrest. It is not the function
of the appointing authority to intermeddle with a criminal investigation.
If at the threshold, approval of appointing authority is made necessary for
arrest, the very purpose of the Act is likely to be frustrated. Various
complications may arise. Investigation cannot be completed within the
specified time, nor trial can be completed as envisaged. Act of 1989
delay would be adding to the further plight of the downtrodden class.
In ref: approval of arrest by the SSP in the case of a non-public
servant:
63. Inter alia for the reasons as mentioned earlier, we are of the
considered opinion that requiring the approval of SSP before an arrest is
not warranted in such a case as that would be discriminatory and against
the protective discrimination envisaged under the Act. Apart from that,
no such guidelines can prevail, which are legislative. When there is no
provision for anticipatory bail, obviously arrest has to be made. Without
doubting bona fides of any officer, it cannot be left at the sweet discretion
of the incumbent howsoever high. The approval would mean that it can
also be ordered that the person is not to be arrested then how the
investigation can be completed when the arrest of an incumbent, is
necessary, is not understandable. For an arrest of accused such a
condition of approval of SSP could not have been made a sine qua non, it
may delay the matter in the cases under the Act of 1989.
Requiring the Magistrate to scrutinise the reasons for permitting
further detention:
64. As per guidelines issued by this Court, the public servant can be
arrested after approval by appointing authority and that of a non-public
servant after the approval of SSP. The reasons so recorded have to be
considered by the Magistrate for permitting further detention. In case of
approval has not been granted, this exercise has not been undertaken.
When the offence is registered under the Act of 1989, the law should take
its course no additional fetter sare called for on arrest whether in case of
a public servant or non-public servant. Even otherwise, as we have not
approved the approval of arrest by appointing authority/S.S.P., the
12
direction to record reasons and scrutiny by Magistrate consequently
stands nullified.
65. The direction has also been issued that the Dy. S.P. should conduct
a preliminary inquiry to find out whether allegations make out a case
under the Atrocities Act, and that the allegations are not frivolous or
motivated. In case a cognisable offence is made out, the FIR has to be
outrightly registered, and no preliminary inquiry has to be made as held
in Lalita Kumari (supra) by a Constitution Bench. There is no such
provision in the Code of Criminal Procedure for preliminary inquiry or
under the SC/ST Act, as such direction is impermissible. Moreover, it is
ordered to be conducted by the person of the rank of Dy. S.P. The number
of Dy. S.P. as per stand of Union of India required for such an exercise of
preliminary inquiry is not available. The direction would mean that even
if a complaint made out a cognizable offence, an FIR would not be
registered until the preliminary inquiry is held. In case a preliminary
inquiry concludes that allegations are false or motivated, FIR is not to be
registered in such a case how a final report has to be filed in the Court.
The direction (iv) cannot survive for the other reasons as it puts the
members of the Scheduled Castes and Scheduled Tribes in a
disadvantageous position in the matter of procedure vis-a-vis to the
complaints lodged by members of upper caste, for later no such
preliminary investigation is necessary, in that view of matter it should not
be necessary to hold preliminary inquiry for registering an offence under
the Atrocities Act of 1989.
66. The creation of a casteless society is the ultimate aim. We
conclude with a pious hope that a day would come, as expected by the
framers of the Constitution, when we do not require any such legislation
like Act of 1989, and there is no need to provide for any reservation to
SCs/STs/OBCs, and only one class of human exist equal in all respects
and no caste system or class of SCs/STs or OBCs exist, all citizens are
emancipated and become equal as per Constitutional goal.
67. We do not doubt that directions encroach upon the field reserved
for the legislature and against the concept of protective discrimination in
favour of down-trodden classes under Article 15(4) of the Constitution
and also impermissible within the parameters laid down by this Court for
exercise of powers under Article 142 of Constitution of India.
Resultantly, we are of the considered opinion that direction Nos.(iii) and
(iv) issued by this Court deserve to be and are hereby recalled and
consequently we hold that direction No. (v), also vanishes. The review
petition is allowed to the extent mentioned above.”
5. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3
SCC 221, this Court has upheld the validity of section 18 of the Act of
1989. This Court has observed:
13
“6. It is undoubtedly true that Section 438 of the Code of Criminal
Procedure, which is available to an accused in respect of offences
under the Penal Code, is not available in respect of offences under the
said Act. But can this be considered as violative of Article 14? The
offences enumerated under the said Act fall into a separate and special
class. Article 17 of the Constitution expressly deals with abolition of
‘untouchability' and forbids its practice in any form. It also provides
that enforcement of any disability arising out of ‘untouchability' shall
be an offence punishable in accordance with law. The offences,
therefore, which are enumerated under Section 3(1), arise out of the
practice of ‘untouchability.' It is in this context that certain special
provisions have been made in the said Act, including the impugned
provision under Section 18, which is before us. The exclusion of
Section 438 of the Code of Criminal Procedure in connection with
offences under the said Act has to be viewed in the context of the
prevailing social conditions which give rise to such offences, and the
apprehension that perpetrators of such atrocities are likely to threaten
and intimidate their victims and prevent or obstruct them in the
prosecution of these offenders, if the offenders are allowed to avail of
anticipatory bail. In this connection, we may refer to the Statement of
Objects and Reasons accompanying the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was
introduced in Parliament. It sets out the circumstances surrounding the
enactment of the said Act and points to the evil which the statute
sought to remedy. In the Statement of Objects and Reasons, it is
stated:
"Despite various measures to improve the socio-economic
conditions of the Scheduled Castes and the Scheduled Tribes,
they remain vulnerable. They are denied number of civil rights.
They are subjected to various offences, indignities, humiliations,
and harassment. They have, in several brutal incidents, been
deprived of their life and property. Serious crimes are committed
against them for various historical, social, and economic
reasons.
2. … When they assert their rights and resist practices of
untouchability against them or demand statutory minimum wages or
refuse to do any bonded and forced labour, the vested interests try to
cow them down and terrorise them. When the Scheduled Castes and
the Scheduled Tribes try to preserve their self-respect or honour of
their women, they become irritants for the dominant and the mighty.
Occupation and cultivation of even the Government allotted land by
the Scheduled Castes and Scheduled Tribes is resented, and more
often, these people become victims of attacks by the vested interests.
Of late, there has been an increase in the disturbing trend of
commission of certain atrocities like making the Scheduled Caste
persons eat inedible substances like human excreta and attacks on and
mass killings of helpless Scheduled Castes and Scheduled Tribes and
rape of women belonging to the Scheduled Castes and the Scheduled
14
Tribes…. A special legislation to check and deter crimes against them
committed by non-Scheduled Castes and non-Scheduled Tribes has,
therefore, become necessary."
The above statement graphically describes the social conditions which
motivated the said legislation. It is pointed out in the above Statement
of Objects and Reasons that when members of the Scheduled Castes
and Scheduled Tribes assert their rights and demand statutory
protection, vested interests try to cow them down and terrorise them.
In these circumstances, if anticipatory bail is not made available to
persons who commit such offences, such a denial cannot be
considered as unreasonable or violative of Article 14, as these offences
form a distinct class by themselves and cannot be compared with other
offences.
7. We have next to examine whether Section 18 of the said Act
violates, in any manner, Article 21 of the Constitution, which protects
the life and personal liberty of every person in this country. Article 21
enshrines the right to live with human dignity, a precious right to
which every human being is entitled; those who have been, for
centuries, denied this right, more so. We find it difficult to accept the
contention that Section 438 of the Code of Criminal Procedure is an
integral part of Article 21. In the first place, there was no provision
similar to Section 438 in the old Criminal Procedure Code. The Law
Commission in its 41st Report recommended introduction of a
provision for grant of anticipatory bail. It observed:
“We agree that this would be a useful advantage. Though we
must add that it is in very exceptional cases that such power
should be exercised.” In the light of this recommendation,
Section 438 was incorporated, for the first time, in the Criminal
Procedure Code of 1973. Looking to the cautious
recommendation of the Law Commission, the power to grant
anticipatory bail is conferred only on a Court of Session or the
High Court. Also, anticipatory bail cannot be granted as a matter
of right. It is essentially a statutory right conferred long after the
coming into force of the Constitution. It cannot be considered as
an essential ingredient of Article 21 of the Constitution. And its
non-application to a certain special category of offences cannot
be considered as violative of Article 21.
9. Of course, the offences enumerated under the present case are very
different from those under the Terrorists and Disruptive Activities
(Prevention) Act, 1987. However, looking to the historical background
relating to the practice of ‘untouchability’ and the social attitudes
which lead to the commission of such offences against Scheduled
Castes and Scheduled Tribes, there is justification for an apprehension
that if the benefit of anticipatory bail is made available to the persons
who are alleged to have committed such offences, there is every
likelihood of their misusing their liberty while on anticipatory bail to
terrorise their victims and to prevent a proper investigation. It is in this
context that Section 18 has been incorporated in the said Act. It cannot
be considered as in any manner violative of Article 21.
10. It was submitted before us that while Section 438 is available for
graver offences under the Penal Code, it is not available for even
“minor offences” under the said Act. This grievance also cannot be
justified. The offences which are enumerated under Section 3 are
offences which, to say the least, denigrate members of Scheduled
Castes and Scheduled Tribes in the eyes of society and prevent them
from leading a life of dignity and self-respect. Such offences are
committed to humiliate and subjugate members of Scheduled Castes
and Scheduled Tribes with a view to keeping them in a state of
servitude. These offences constitute a separate class and cannot be
compared with offences under the Penal Code.
11. A similar view of Section 18 of the said Act has been taken by the
Full Bench of the Rajasthan High Court in the case of Jai Singh v.
Union of India, AIR 1993 Raj 177, and we respectfully agree with its
findings.”
6. This Court in Vilas Pandurang Pawar and Anr. v. State of
Maharashtra and Ors., (2012) 8 SCC 795, has observed thus:
“10. The scope of Section 18 of the SC/ST Act read with Section 438
of the Code is such that it creates a specific bar in the grant of
anticipatory bail. When an offence is registered against a person under
the provisions of the SC/ST Act, no court shall entertain an application
for anticipatory bail, unless it prima facie finds that such an offence is
not made out. Moreover, while considering the application for bail,
scope for appreciation of evidence and other material on record is
limited. The court is not expected to indulge in critical analysis of the
evidence on record. When a provision has been enacted in the Special
Act to protect the persons who belong to the Scheduled Castes and the
Scheduled Tribes and a bar has been imposed in granting bail under
Section 438 of the Code, the provision in the Special Act cannot be
easily brushed aside by elaborate discussion on the evidence.”
7. This Court in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC
521, has observed thus:
“4. The High Court has not given any finding in the impugned order
that an offence under the aforesaid Act is not made out against the
respondent and has granted anticipatory bail, which is contrary to the
provisions of Section 18 of the aforesaid Act as well as the aforesaid
decision of this Court in Vilas Pandurang Pawar case, (2012) 8 SCC
795. Hence, without going into the merits of the allegations made
against the respondent, we set aside the impugned order of the High
Court granting bail to the respondent.”
8. Concerning the provisions contained in section 18A, suffice it to
observe that with respect to preliminary inquiry for registration of FIR,
we have already recalled the general directions (iii) and (iv) issued in
Dr. Subhash Kashinath’s case (supra). A preliminary inquiry is
permissible only in the circumstances as per the law laid down by a
Constitution Bench of this Court in Lalita Kumari v. Government of
U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed
by this Court in the review petitions on 1.10.2019 and the amended
provisions of section 18A have to be interpreted accordingly.
9. The section 18A(i) was inserted owing to the decision of this
Court in Dr. Subhash Kashinath (supra), which made it necessary to
obtain the approval of the appointing authority concerning a public
servant and the SSP in the case of arrest of accused persons. This
Court has also recalled that direction on Review Petition (Crl.) No.228
of 2018 decided on 1.10.2019. Thus, the provisions which have been
made in section 18A are rendered of academic use as they were
enacted to take care of mandate issued in Dr. Subhash Kashinath
(supra) which no more prevails. The provisions were already in section
18 of the Act with respect to anticipatory bail.
17
10. Concerning the applicability of provisions of section 438 Cr.PC, it
shall not apply to the cases under Act of 1989. However, if the
complaint does not make out a prima facie case for applicability of the
provisions of the Act of 1989, the bar created by section 18 and 18A (i)
shall not apply. We have clarified this aspect while deciding the
review petitions.
11. The court can, in exceptional cases, exercise power under
section 482 Cr.PC for quashing the cases to prevent misuse of
provisions on settled parameters, as already observed while deciding
the review petitions. The legal position is clear, and no argument to
the contrary has been raised.
12. The challenge to the provisions has been rendered academic. In
view of the aforesaid clarifications, we dispose of the petitions.
…………………………J.
(Arun Mishra)
………………….……..J.
(Vineet Saran)
New Delhi;
February 10, 2020.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 1015 OF 2018
PRATHVI RAJ CHAUHAN ...PETITIONER(S)
VERSUS
UNION OF INDIA & OTHERS ...RESPONDENT(S)
WITH
WRIT PETITION (C) No. 1016 OF 2018
J U D G M E N T
S. RAVINDRA BHAT, J.
1. I am in agreement with the judgment proposed by Justice Arun Mishra as well as
its conclusions that the challenge to the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) (Amendment) Act, 2018 must fail, with the qualifications
proposed in the judgment with respect to the inherent power of the court in granting
anticipatory bail in cases where prima facie an offence is not made out. I would
however, supplement the judgment with my opinion.
2. The Constitution of India is described variously as a charter of governance of the
republic, as a delineation of the powers of the state in its various manifestations vis-à-vis
inalienable liberties and a document delimiting the rights and responsibilities of the
Union and its constituent states. It is more: it is also a pact between people, about the
relationships that they guarantee to each other (apart from the guarantee of liberties visà-
vis the state) in what was a society riven1 along caste and sectarian divisions. That is
why the preambular assurance that the republic would be one which guarantees to its
people liberties, dignity, equality of status and opportunity and fraternity.
3. It is this idea of India, - a promise of oneness of and for, all people, regardless of
caste, gender, place of birth, religion and other divisions that Part III articulates in four
salient provisions: Article 15, Article 17, Article 23 and Article 24. The idea of fraternity
occupying as crucial a place in the scheme of our nation’s consciousness and polity, is
one of the lesser explored areas in the constitutional discourse of this court. The
fraternity assured by the Preamble is not merely a declaration of a ritual handshake or
cordiality between communities that are diverse and have occupied different spaces: it is
far more. This idea finds articulation in Article 15.1 That provision, perhaps even more
than Article 14, fleshes out the concept of equality by prohibiting discrimination and
discriminatory practices peculiar to Indian society. At the center of this idea, is that all
people, regardless of caste backgrounds, should have access to certain amenities,
services and goods so necessary for every individual. Article 15 is an important
guarantee against discrimination. What is immediately noticeable is that whereas Article
15 (1) enjoins the State (with all its various manifestations, per Article 12) not to
discriminate on the proscribed grounds (religion, race, caste, sex (i.e. gender), place of
birth or any of them), Article 15 (2) is a wider injunction: it prohibits discrimination or
subjection to any disability of anyone on the grounds of religion, caste, race, sex or place
of birth in regard to access to shops, places of public entertainment, or public restaurants
1 The relevant parts of Article 15 are extracted below:
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly
out of State funds or dedicated to the use of the general public…”
(3) Nothing in this article shall prevent the State from making any special provision for women and
children”
(Article 15 (2) (a)). Article 15(2)(b) proscribes the subjection of anyone to any disability
on the proscribed grounds (i.e. discrimination on grounds of religion, caste, race, sex or
place of birth) with regard to “the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or dedicated to the use of
the general public..”
4. The making of this provision- and others, in my view, is impelled by the trinity of
the preambular vision that the Constitution makers gave to this country. Paeans have
been sung about the importance of liberty as a constitutional value: its manifest
articulation in the (original) seven “lamps” -i.e. freedoms under Article 19 of the
Constitution; the other rights to religion, those of religious denominations, etc. Likewise,
the centrality of equality as an important constitutional provision has been emphasized,
and its many dimensions have been commented upon. However, the articulation of
fraternity as a constitutional value, has lamentably been largely undeveloped. In my
opinion, all the three - Liberty, Equality and Fraternity, are intimately linked. The right
to equality, sans liberty or fraternity, would be chimerical - as the concept presently
known would be reduced to equality among equals, in every manner- a mere husk of the
grand vision of the Constitution. Likewise, liberty without equality or fraternity, can
well result in the perpetuation of existing inequalities and worse, result in license to
indulge in society’s basest practices. It is fraternity, poignantly embedded through the
provisions of Part III, which assures true equality, where the state treats all alike, assures
the benefits of growth and prosperity to all, with equal liberties to all, and what is more,
which guarantees that every citizen treats every other citizen alike.
5. When the framers of the Constitution began their daunting task, they had before
them a formidable duty and a stupendous opportunity: of forging a nation, out of several
splintered sovereign states and city states, with the blueprint of an idea of India. What
they envisioned was a common charter of governance and equally a charter for the
people. The placement of the concept of fraternity, in this context was neither an
accident, nor an idealized emulation of the western notion of fraternity, which finds
vision in the French and American constitutions and charters of independence. It was a
unique and poignant reminder of a society riven with acute inequalities: more
specifically, the practice of caste discrimination in its virulent form, where the essential
humanity of a large mass of people was denied by society- i.e. untouchability.
6. The resolve to rid society of these millennial practices, consigning a large segment
of humanity to the eternal bondage of the most menial avocations creating inflexible
social barriers, was criticized by many sages and saints. Kabir, the great saint poet, for
instance, in his composition, remarked:
“If thou thinkest the maker distinguished castes:
Birth is according to these penalties for deeds.
Born a Sudra, you die a Sudra;
It is only in this world of illusion that you assume the sacred thread.
If birth from a Brahmin makes you a Brahmin,
Why did you not come by another way?
If birth from a Turk makes you a Turk,
Why were you not circumcised in the womb?
…
Saith Kabir, renounce family, caste, religion, and nation,
And live as one.”
7. There were several others who spoke, protested, or spoke against the pernicious
grip of social inequity due to caste oppression of the weakest and vulnerable segments of
society. Guru Nanak, for instance, stated2
“Caste and dynastic pride are condemnable notions,
the one master shelters all existence.
Anyone arrogating superiority to himself halt be disillusioned. Saith
Nanak:
2 Guru Granth Saheb p.83
superiority shall be determined by God”
The Guru Granth Saheb also states that
“All creatures are noble, none low,
One sole maker has all vessels fashioned;
In all three worlds is manifest the same light…”
8. The preamble to the Constitution did not originally contain the expression
“fraternity”; it was inserted later by the Drafting Committee under the chairmanship of
Dr. Ambedkar. While submitting the draft Constitution, he stated, on 21 February, 1948,
that the Drafting Committee had added a clause about fraternity in the Preamble even
though it was not part of the Objectives Resolution because it felt that “the need for
fraternal concord and goodwill in India was never greater than now, and that this
particular aim of the new Constitution should be emphasized by special mention in the
Preamble”3. Pandit Thakur Das Bhargava expressed a “sense of gratitude to Dr.
Ambedkar for having added the word “fraternity” to the Preamble”. Acharya Kripalani
also emphasized on this understanding, in his speech on 17 October, 1949:
“Again, I come to the great doctrine of fraternity, which is allied
with democracy. It means that we are all sons of the same God,
as the religious would say, but as the mystic would say, there is
one life pulsating through all of us, or as the Bible says, “We are
one of another”. There can be no fraternity without this.”
9. This court too, has recognized and stressed upon the need to recognize fraternity
as one of the beacons which light up the entire Constitution. Justice Thommen, in Indira
Sawhney v Union of India4 said this:
“The makers of the Constitution were fully conscious of the
unfortunate position of the Scheduled Castes and Scheduled
Tribes. To them equality, liberty and fraternity are but a dream;
3 B. Shiva Rao: Framing of India’s Constitution Vol III, page 510 (1968)
4 1992 Supp (3) SCR 454
an ideal guaranteed by the law, but far too distant to reach; far
too illusory to touch. These backward people and others in like
positions of helplessness are the favoured children of the
Constitution. It is for them that ameliorative and remedial
measures are adopted to achieve the end of equality. To permit
those who are not intended to be so specially protected to
compete for reservation is to dilute the protection and defeat the
very constitutional aim.”
10. In Raghunathrao Ganpatrao v. Union of India5 this court held:
“In our considered opinion this argument is misconceived and
has no relevance to the facts of the present case. One of the
objectives of the Preamble of our Constitution is 'fraternity
assuring the dignity of the individual and the unity and integrity
of the nation.' It will be relevant to cite the explanation given by
Dr. Ambedkar for the word 'fraternity' explaining that 'fraternity
means a sense of common brotherhood of all Indians.' In a
country like ours with so many disruptive forces of regionalism,
communalism and linguism, it is necessary to emphasise and reemphasise
that the unity and integrity of India can be preserved
only by a spirit of brotherhood. India has one common
citizenship and every citizen should feel that he is Indian first
irrespective of other basis. In this view, any measure at bringing
about equality should be welcome.”
11. In a similar vein, the court in Nandini Sundar v. State of Chhatisgarh6 again
commented on this aspect and said that “t(T)he Constitution itself, in no uncertain
terms, demands that the State shall strive, incessantly and consistently, to promote
fraternity amongst all citizens such that dignity of every citizen is protected, nourished
and promoted.”
12. It was to achieve this ideal of fraternity, that the three provisions- Articles 15, 17
and 24 were engrafted. Though Article 17 proscribes the practice of untouchability and
pernicious practices associated with it, the Constitution expected Parliament and the
5 1993 (1) SCR 480
6 2011 (7) SCC 457
legislatures to enact effective measures to root it out, as well as all other direct and
indirect, (but virulent nevertheless) forms of caste discrimination. Therefore, in my
opinion, fraternity is as important a facet of the promise of our freedoms as personal
liberty and equality is. The first attempt by Parliament to achieve that end was the
enactment of the Untouchability (Offences) Act, 1955. The Act contained a significant
provision that where any of the forbidden practices “is committed in relation to a
member of a Scheduled Caste” the Court shall presume, unless the contrary is proved,
that such act was committed on the ground of “Untouchability”. This implied that the
burden of proof lies on the accused and not on the prosecution. The Protection of Civil
Rights Act, 1955, followed. This too made provision for prescribing “punishment for the
preaching and practice of - "Untouchability" for the enforcement of any disability
arising therefrom”. The enforcement of social practices associated with untouchability
and disabilities was outlawed and made the subject matter of penalties. After nearly 35
years’ experience, it was felt that the 1955 Act (which was amended in 1976) did not
provide sufficient deterrence to social practices, which continued unabated and in a
widespread manner, treating members of the scheduled caste and tribe communities in
the most discriminatory manner, in most instances, stigmatizing them in public places,
virtually denying them the essential humanity which all members of Society are entitled
to.
13. It was to address this gulf between the rights which the Constitution guaranteed
to all people, particularly those who continued to remain victims of ostracism and
discrimination, that the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereafter “the Act”) was enacted. Rules under the Act were
framed in 1995 to prevent the commission of atrocities against members of Schedules
Castes and Tribes, to provide for special courts for the trial of such offences and for the
relief and rehabilitation of the victims of such offences and for matters connected
therewith or incidental thereto. The Statement of Objects and Reasons appended to the
Bill, when moved in the Parliament, observed that despite various measures to improve
the socio-economic conditions of Scheduled Castes and Scheduled Tribes, they
remained vulnerable. They are denied a number of civil rights and are subjected to
various offences, indignities, humiliation and harassment. They have been, in several
brutal instances, deprived of their life and property. Serious atrocities were committed
against them for various historical, social and economic reasons. The Act, for the first
time, puts down the contours of ‘atrocity’ so as to cover the multiple ways through
which members of scheduled castes and scheduled tribes have been for centuries
humiliated, brutally oppressed, degraded, denied their economic and social rights and
relegated to perform the most menial jobs.
14. The Report on the Prevention of Atrocities against Scheduled Castes7 vividly
described that despite enacting stringent penal measures, atrocities against scheduled
caste and scheduled tribe communities continued; even law enforcement mechanisms
had shown a lackadaisical approach in the investigation and prosecution of such
offences. The report observed that in rural areas, various forms of discrimination and
practices stigmatizing members of these communities continued. Parliament too enacted
an amendment to the Act in 2015, strengthening its provisions in the light of the
instances of socially reprehensive practices that members of scheduled caste and
scheduled tribe communities were subjected to. In this background, this court observed
in the decision in National Campaign on Dalit Human Rights v. Union of India8 that:
“The ever-increasing number of cases is also an indication to
show that there is a total failure on the part of the authorities in
complying with the provisions of the Act and the Rules. Placing
7 Published by the National Human Rights Commission (accessed at
https://nhrc.nic.in/publications/other-publicationss on 15 December, 2019 at 08:27 hrs)
8 (2017) 2 SCC 432
reliance on the NHRC Report and other reports, the Petitioners
sought a mandamus from this Court for effective implementation
of the Act and the Rules.
12. We have carefully examined the material on record and we
are of the opinion that there has been a failure on the part of the
concerned authorities in complying with the provisions of the Act
and Rules. The laudable object with which the Act had been made
is defeated by the indifferent attitude of the authorities. It is true
that the State Governments are responsible for carrying out the
provisions of the Act as contended by the counsel for the Union of
India. At the same time, the Central Government has an
important role to play in ensuring the compliance of the
provisions of the Act. Section 21(4) of the Act provides for a
report on the measures taken by the Central Government and
State Governments for the effective implementation of the Act to
be placed before the Parliament every year. The constitutional
goal of equality for all the citizens of this country can be achieved
only when the rights of the Scheduled Castes and Scheduled
Tribes are protected. The abundant material on record proves that
the authorities concerned are guilty of not enforcing the
provisions of the Act. The travails of the members of the
Scheduled Castes and the Scheduled Tribes continue unabated.
We are satisfied that the Central Government and State
Governments should be directed to strictly enforce the provisions
of the Act and we do so.”
15. In Subhash Kashinath Mahajan v. State of Maharashtra & Ors9, a two judge
bench of this court held that the exclusion of anticipatory bail provisions of the Code of
Criminal Procedure (by Section 18 of the Act) did not constitute an absolute bar for the
grant of bail, where it was discernable to the court that the allegations about atrocities or
violation of the provisions of the Act were false. It was also held, more crucially, that
public servants could be arrested only after approval by the appointing authority (of such
public servant) and in other cases, after approval by the Senior Superintendent of Police.
It was also directed that cases under the Act could be registered only after a preliminary
enquiry into the complaint. These directions were seen to be contrary to the spirit of the
9 2018 (4) SCC 454
Act and received considerable comment in the public domain; the Union of India too
moved this court for their review. In the review proceedings, a three judge bench of this
court, in Union of India v. State of Maharastra10 recalled and overruled those directions.
16. In the meanwhile, Parliament enacted the amendment of 201811 (by Act No. 27 of
2019), which is the subject matter of challenge in these proceedings. The clear intention
of Parliament was to undo the effect of this court’s declaration in Subhash Kashinath
Mahajan (supra). The provisions of the amendment expressly override the directions in
Subhash Kashinath Mahajan, that a preliminary inquiry within seven days by the
Deputy Superintendent of Police concerned, to find out whether the allegations make out
a case under the Act, and that arrest in appropriate cases may be made only after
approval by the Senior Superintendent of Police. The Parliamentary intent was to allay
the concern that this would delay registration of First Information Report (FIR) and
would impede strict enforcement of the provision of the Act.
17. The judgment of Mishra, J has recounted much of the discussion and reiterated the
reasoning which led to the recall and review of the decision in Subhash Kashinath
Mahajan (supra); I respectfully adopt them. I would only add that any interference with
the provisions of the Act, particularly with respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar against arrest of public servants
10 2019 (13) SCALE 280
11 The operative part of the amendment, a brief one, reads as follows:
" 2. After section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989, the following section shall be inserted, namely:—
“18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for
registration of a First Information Report against any person; or (b) the investigating officer shall
not require approval for the arrest, if necessary, of any person, against whom an accusation of
having committed an offence under this Act has been made and no procedure other than that
provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act,
notwithstanding any judgment or order or direction of any Court.".
accused of offences punishable under the Act, would not be a positive step. The various
reports, recommendations and official data, including those released by the National
Crime Records Bureau12, paint a dismal picture. The figures reflected were that for 2014,
instances of crimes recorded were 40401; for 2015, the crime instances recorded were
38670 and for 2016, the registered crime incidents were 40801. According to one
analysis of the said 2016 report13, 422,799 crimes against scheduled caste communities’
members and 81,332 crimes against scheduled tribe communities’ members were
reported between 2006 and 2016.
18. These facts, in my opinion ought to be kept in mind by courts which have to try
and deal with offences under the Act. It is important to keep oneself reminded that while
sometimes (perhaps mostly in urban areas) false accusations are made, those are not
necessarily reflective of the prevailing and wide spread social prejudices against
members of these oppressed classes. Significantly, the amendment of 2016, in the
expanded definition of ‘atrocity’, also lists pernicious practices (under Section 3)
including forcing the eating of inedible matter, dumping of excreta near the homes or in
the neighbourhood of members of such communities and several other forms of
humiliation, which members of such scheduled caste communities are subjected to. All
these considerations far outweigh the petitioners’ concern that innocent individuals
would be subjected to what are described as arbitrary processes of investigation and
legal proceedings, without adequate safeguards. The right to a trial with all attendant
safeguards are available to those accused of committing offences under the Act; they
remain unchanged by the enactment of the amendment.
12 http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf containing statistics
relating to crime against members of scheduled caste and scheduled tribe populations
13 Indiaspend https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-by-746-746/
19. As far as the provision of Section 18A and anticipatory bail is concerned, the
judgment of Mishra, J, has stated that in cases where no prima facie materials exist
warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest
bail.
20. I would only add a caveat with the observation and emphasize that while
considering any application seeking pre-arrest bail, the High Court has to balance the
two interests: i.e. that the power is not so used as to convert the jurisdiction into that
under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such
orders made in very exceptional cases where no prima facie offence is made out as
shown in the FIR, and further also that if such orders are not made in those classes of
cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I
consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely
essential, because a liberal use of the power to grant pre-arrest bail would defeat the
intention of Parliament.
21. It is important to reiterate and emphasize that unless provisions of the Act are
enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream
and ideal of a casteless society will remain only a dream, a mirage. The marginalization
of scheduled caste and scheduled tribe communities is an enduring exclusion and is
based almost solely on caste identities. It is to address problems of a segmented society,
that express provisions of the Constitution which give effect to the idea of fraternity, or
bandhutva (बनधधतव) referred to in the Preamble, and statutes like the Act, have been
framed. These underline the social – rather collective resolve – of ensuring that all
humans are treated as humans, that their innate genius is allowed outlets through equal
opportunities and each of them is fearless in the pursuit of her or his dreams. The
question which each of us has to address, in everyday life, is can the prevailing situation
of exclusion based on caste identity be allowed to persist in a democracy which is
committed to equality and the rule of law? If so, till when? And, most importantly, what
each one of us can do to foster this feeling of fraternity amongst all sections of the
community without reducing the concept (of fraternity) to a ritualistic formality, a tacit
acknowledgment, of the “otherness” of each one’s identity.
22. I am of the opinion that in the light of and subject to the above observations, the
petitions have to be and are, accordingly disposed of.
........................................J.
[S. RAVINDRA BHAT]
New Delhi,
February 10, 2020.
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