Dr. Subhash Kashinath Mahajan vs The State of Maharashtra and Anr.

Code of Criminal Procedure, 1973 – ss.41, 41A – Power of arrest – Held: Enforcement of a legislation has to be consistent with the fundamental rights – Power of arrest is to be exercised with caution – Mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot deprive a person of his liberty without an independent scrutiny – Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989.

Interpretation of Statutes – Literal interpretation vis-à-vis purposive interpretation – Held: A statute is to be read in the context of the background and its object – Exclusion of provision for anticipatory bail cannot possibly, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated – Doctrines/Principles – Doctrine of proportionality.

Criminal Trial – Presumption of innocence – Held: Presumption of innocence is a human right – Placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty – Protection of innocent is as important as punishing the guilty – Human rights.

Constitution of India – Powers/Role of Supreme Court to issue appropriate orders or directions for enforcement of fundamental rights – Held: Role of Supreme Court travels beyond merely dispute settling and directions can be issued which are not directly in conflict with a valid statute – Power to declare law carries with it, within the limits of duty, to make law when none exists. Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Purpose and object of – Discussed. Allowing the appeal, the Court

HELD: Consideration of the issue whether directions can be issued by this Court to protect fundamental right under Article

21 against uncalled for false implication and arrests

1.1 Jurisdiction of Supreme Court to issue appropriate orders or directions for enforcement of fundamental rights is a basic feature of the Constitution. Supreme Court, as the ultimate interpreter of the Constitution, has to uphold the constitutional rights and values. Articles 14, 19 and 21 of the Constitution represent the foundational values which form the basis of the rule of law. Contents of the said rights have to be interpreted in a manner which enables the citizens to enjoy the said rights. Right to equality and life and liberty have to be protected against any unreasonable procedure, even if it is enacted by the legislature. The substantive as well as procedural laws must conform to Articles 14 and 21. Any abrogation of the said rights has to be nullified by this Court by appropriate orders or directions. Power of the legislature has to be exercised consistent with the fundamental rights. Enforcement of a legislation has also to be consistent with the fundamental rights. Undoubtedly, the Supreme Court has jurisdiction to enforce the fundamental rights of life and liberty against any executive or legislative action. The expression ‘procedure established by law’ under Article 21 implies just, fair and reasonable procedure. [Para 31] [913-G-H; 914-A-D]

1.2 The Supreme Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights. Role of Supreme Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute. Power to declare law carries with it, within the limits of duty, to make law when none exists. There are innumerable occasions when Supreme Court has issued directions for enforcement of fundamental rights e.g., directions regarding functioning of caste scrutiny Committee; directions to regulate appointment of law officers; directions to regulate powers of this Court and High Courts in designating Senior Advocates; guidelines have been issued for the welfare of a child accompanying his/her mother in imprisonment; directions for checking trafficking of women and children; for night shelters for the homeless; directions to check malnutrition in children; directions to provide medical assistance by Government run hospitals; directions for protection of human rights 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] 2 SCR 621 – followed.

1.3 In Joginder Kumar, it was observed that horizon of human rights is expanding. There are complaints of violation of human rights because of indiscriminate arrests. The law of arrest is of balancing individual rights, liberties and privileges, duties, obligations and responsibilities. On the one side is the social need to check a crime, on the other there is social need for protection of liberty, oppression and abuse by the police and the other law enforcing agencies. The 3rd Report of the National Police Commission was noted to the effect that power of arrest was one of the chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arrest could be justified only in grave offences to inspire the confidence of the victim, to check the accused from committing further crime and to prevent him from absconding. The National Police Commission recommended that the police officer making arrest should record reasons. It was observed that no arrest can be made merely because it is lawful to do so. The exercise of power must be for a valid purpose. Except in heinous offences arrest must be avoided. This requirement was read into Article 21. In Arnesh Kumar, it was observed that arrest brings humiliation, curtails freedom and casts scars forever. It is considered a tool for harassment and oppression. The drastic power is to be exercised with caution. Power of arrest is a lucrative source of corruption. Referring to the amendment of law in Section 41 Cr.P.C., in the light of recommendations of the Law Commissions, it was directed that arrest may be justified only if there is ‘credible information’ or ‘reasonable suspicion’ and if arrest was necessary to prevent further offence or for proper investigation or to check interference with the evidence. Reasons are required to be recorded. However, compliance on the ground is far from satisfactory for obvious reasons. The scrutiny by the Magistrates is also not adequate. [Para 36] [918-A-F]

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 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 on spreading casteism

2. Working of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values. Secularism is a basic feature of the Constitution. Irrespective of caste or religion, the Constitution guarantees equality in its preamble as well as other provisions including Articles 14-16. The Constitution envisages a cohesive, unified and casteless society. Interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require check on false implications of innocent citizens on caste lines. [Paras 42, 47] [929-H; 930-A-B; 933-B-C]

Issue of anticipatory bail

3.1 Section 18 of the Atrocities Act contains bar against grant of anticipatory bail. Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. It cannot be read as being applicable to those who are falsely implicated for extraneous reasons and have not committed the offence on prima facie independent scrutiny. Access to justice being a fundamental right, grain has to be separated from the chaff, by an independent mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law. If the provisions of the Act are compared as against certain other enactments where similar restrictions are put on consideration of matter for grant of anticipatory bail or grant of regular bail, an interesting situation emerges. [Paras 49-52] [933D-E; 934-C-E]

3.2 Section 17(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (“TADA” - since repealed) stated “…nothing in Section 438 of CrPC shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the provisions of this Act…”. Section 17(5) of the TADA Act put further restriction on a person accused of an offence punishable under the TADA Act being released on regular bail and one of the conditions was: Where the Public Prosecutor opposes the application for grant of bail, the court had to be satisfied that there were reasonable grounds for believing that the accused was not guilty of such offence and that he was not likely to commit any such offence while on bail. The provisions of the Unlawful Activities (Prevention) Act, 1967, namely under Section 43D(4) and 43D(5) are similar to the aforesaid Sections 17(4) and 17(5) of the TADA Act. Similarly the provisions of Maharashtra Control of Organised Crime Act, 1999, namely, Sections 21(3) and 21(4) are also identical in terms. Thus the impact of release of a person accused of having committed the concerned of fences under these special enactments was dealt with by the Legislature not only at the stage of consideration of the matter for anticipatory bail but even after the arrest at the stage of grant of regular bail as well. The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 are however, distinct in that the restriction under Section 37 is at a stage where the matter is considered for grant of regular bail. No such restriction is thought of and put in place at the stage of consideration of matter for grant of anticipatory bail. On the other hand, the provisions of the Act are diametrically opposite and the restriction in Section 18 is only at the stage of consideration of matter for anticipatory bail and no such restriction is available while the matter is to be considered for grant of regular bail. Theoretically it is possible to say that an application under Section 438 of CrPC may be rejected by the Court because of express restrictions in Section 18 of the Atrocities Act but the very same court can grant bail under the provisions of Section

437 of CrPC, immediately after the arrest. There seems to be no logical rationale behind this situation of putting a fetter on grant of anticipatory bail whereas there is no such prohibition in any way for grant of regular bail. It is, therefore, all the more necessary and important that the express exclusion under Section

18 of the Atrocities Act is limited to genuine cases and 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 not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, no justification is seen for applying Section 18 in such cases. The perpetrators of atrocities should not be granted anticipatory bail so that they may not terrorise the victims. Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime. [Para 53] [935-F-H; 936-A]

3.4 It is well settled that a statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object of law. Doctrine of proportionality is well known for advancing the object of Articles

14 and 21. A procedural penal provision affecting liberty of citizen must be read consistent with the concept of fairness and reasonableness. In the present context, wisdom of legislature in creating an offence cannot be questioned but individual justice is a judicial function depending on facts. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently malafide version is put forward. Courts have inherent jurisdiction to do justice and this jurisdiction cannot be intended to be excluded. Thus, exclusion of Court’s jurisdiction is not to be read as absolute. There can be no dispute with the proposition that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny. Thus, exclusion of provision for anticipatory bail cannot possibly, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. If this interpretation is not taken, it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be blackmailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the scenario in a civilized society. Similarly, even a non public servant can be blackmailed to surrender his civil rights. This is not the intention of law. Such law cannot stand judicial scrutiny. It will fall foul of guaranteed fundamental rights of fair and reasonable procedure being followed if a person is deprived of life and liberty. Thus, literal interpretation cannot be preferred in the present situation. [Paras 56, 58 and 59] [936-D-E; 938-B-F]

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

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

3.7 Innocent citizens are termed as accused, which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. The Act is also not intended to deter public servants from performing their bona fide duties. Thus, unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens. Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution. Accordingly, it is held that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, a well established principle of law is being reiterated that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. In doing so, the efficacy of Section 18 is not being diluted in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pretrial arrest and detention. Protection of innocent is as important as 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 exclusion of judicial function of going into correctness or otherwise of the allegation in a criminal case before liberty of a person is taken away. The legislature could not have intended that any unilateral version should be treated as conclusive and the person making such allegation should be the sole judge of its correctness to the exclusion of judicial function of courts of assessing the truth or otherwise of the rival contentions before personal liberty of a person is adversely affected. It is thus patent that in cases under the Atrocities Act, exclusion of right of anticipatory bail is applicable only if the case is shown to bona fide and that prima facie it falls under the Atrocities Act and not otherwise. Section

18 does not apply where there is no prima facie case or to cases of patent false implication or when the allegation is motivated for extraneous reasons. [Paras 73, 74] [949-E-H]

Issue of safeguards against arrest and false implications

4.1 The under privileged need to be protected against any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This Court must enforce such a guarantee. Law should not result in caste hatred. The preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity. There is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court. Normal rule is to register FIR if any information discloses commission of a cognizable offence. There are however, exceptions to this rule and cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held. Such inquiry must be time-bound and should not exceed seven days. Even if preliminary inquiry is held and case is registered, arrest is not a must. [Paras 75, 76, 77, 79 and 80] [950-B-E; 952-G]

4.2 Accordingly, it is directed that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated. [Para 81] [953-C-E] Consideration of present case

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

Conclusions

6. 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. The view taken and approach of the Gujarat High Court in Pankaj D Suthar and Dr. N.T. Desai is approved and the judgments of this Court in Balothia and Manju Devi are clarified;

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

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

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

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 Singh Ahluwalia (2017) 13 SCC 439 : [2017] 2 SCR 703 – clarified. Union of India v. Raghubir Singh (1989) 2 SCC 754 : [1989] 3 SCR 316; Indra Sawhney and Ors v. Union of 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 Pawar and Anr. v. State of Maharashtra and Ors. (2012) 8 SCC 795 : [2012] 8 SCR 270; Shakuntla Devi v. Baljinder Singh (2014) 15 SCC 521; Bandhua Mukti Morcha 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 of T.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 Satlingappa Mhetre 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 of U.P. (2014) 4 SCC 453 : [2014] 1 SCR 465; Noor Aga v. State of Punjab (2008) 16 SCC 417: [2008]

10 SCR 379; Dadu alias Tulsidas v. State of

Maharashtra (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 SCC 497; Badan Singh @ Baddo v. State of U.P. & Ors. 2002 CriLJ 1392; Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 : [2005] 2 SCR 188; Tata Chemicals Ltd. v. Commissioner of Customs (2015) 11 SCC 628 : [2015] 7 SCR 132; Ganga Saran & Sons Pvt. Ltd. v. Income Tax Officer & Ors. (1981) 3 SCC

143 : [1981] 3 SCR 564; M. C. Abraham v. State of Maharashtra (2003) 2 SCC 649 : [2002] 5 Suppl. SCR 677; D. Venkatasubramaniam v. M. K. Mohan Krishnamachari (2009) 10 SCC 488 : [2009] 14

SCR 441; Gurbaksh Singh Sibbia etc. v. State of Punjab [1980] 3 SCR 383; Nikesh Tarachand Shah v. Union of India and Anr. (2017) 13 SCALE 609 : 2017 SCC OnLine SC 1355; Jones v. State 2004 SCC OnLine Mad 922 : 2004 CriLJ 2755; Dhiren Prafulbhai Shah v. State of Gujarat 2016 CriLJ 2217; Sharad v. State of Maharashtra 2015(4) BomCR(Crl) 545; State of Jharkhand and Anr. v. Govind Singh (2005)10 SCC

437 : [2004] 6 Suppl. SCR 651; Rohitash Kumar and Ors v. Om Prakash Sharma and Ors. (2013) 11 SCC

451 : [2012] 13 SCR 47; Madhuri Patil v. Tribal Development (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 Liberties v. UOI (2010) 5 SCC 318; People’s Union for Civil Liberties v. UOI (2004) 12 SCC 104; Paschim Banga Khet 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; Hussainara Khatoon (IV) v. Home Secy. State of Bihar (1980) 1 SCC

98 : [1979] 3 SCR 532; People’s Union for Civil Liberties (PUCL) and Anr. Etc. v. Union of India and Anr. (2003) 4 SCC 399 : [2003] 2 SCR 1136; Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and Ors. (2009) 4 SCC 437 : [2009] 4 SCR 1027; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994]

2 SCR 375; State of Punjab v. Dalbir Singh (2012) 3 SCC 346 : [2012] 4 SCR 608 – referred to.