Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.18A – Challenge to – Petitioners challenged s.18A which was enacted owing to the judgment of Supreme Court in Dr. Subhash Kashinath case reported as [2018] 4 SCR 877, mainly because of direction nos.(iii) to (v) contained in para 83 inter alia w.r.t holding preliminary inquiry for registration of FIR, necessity to obtain approval of the appointing authority concerning arrest of a public servant and of the SSP in other cases – Union of India filed review petitions – Allowed – Direction nos. (iii) to (v) recalled – Held: Per Arun Mishra and Vineet Saran, JJ. – Provisions made in s.18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath case which no more prevails – A preliminary inquiry is permissible only in the circumstances as per law laid down by Constitution Bench in Lalita Kumari case – Further, concerning the applicability of provisions of s.438, CrPC, it shall not apply to the cases under 1989 Act – However, if the complaint does not make out a prima facie case under 1989 Act, the bar created by s.18 & 18A(i) shall not apply – In exceptional cases, power can be exercised u/s.482, CrPC for quashing cases to prevent misuse of provisions on settled parameters, as observed in the review petitions – Per S. Ravindra Bhat, J. (Supplementing) 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 accused of offences punishable under the Act, would not be a positive step – Various reports, official data including those released by the National Crime Records Bureau, paint a dismal picture – 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 u/s.438, CrPC, 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 – Further also, if such orders are not made in those classes of cases, the result would inevitably be miscarriage of justice or abuse of process of law – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amednment Act, 2018 – Constitution of India – Arts.14, 15, 17, 21, 23 & 24 – Code of Criminal Procdure, 1973 – ss.438 and 482 – Untouchability (Offences) Act, 1955 – Civil Rights Act, 1955.
Disposing of the writ petitions, the Court
HELD: PER ARUN MISHRA, J. (for himself and VINEET SARAN, J.)
Concerning the provisions contained in section 18A, with respect to preliminary inquiry for registration of FIR, the general directions (iii) and (iv) issued in Dr. Subhash Kashinath’s case have already been recalled. A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of Supreme Court in Lalita Kumari case, shall hold good as explained in the order passed by Supreme Court in the review petitions on 1.10.2019 and the amended provisions of section 18A have to be interpreted accordingly. 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 which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail. 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. This aspect has been clarified while deciding the review petitions. 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 challenge to the provisions has been rendered academic. [Paras 8-11][750H; 751-A-H] Dr. Subhash Kashinath Mahajan v. The State of
Maharashtra & Anr. (2018) 6 SCC 454 : [2018] 4 SCR 877; State of M.P. & Anr. v. Ram Kishna Balothia & Anr. (1995) 3 SCC 221 : [1995] 1 SCR 897; Vilas Pandurang Pawar and Anr. v. State of Maharashtra & Ors. (2012) 8 SCC 795 : [2012] 8 SCR 270; Shakuntla Devi v. Baljinder Singh (2014) 15 SCC 521; Lalita Kumari v. Government of U.P. (2014) 2 SCC 1 : [2013]
14 SCR 713 – referred to.
PER S. RAVINDRA BHAT, J.
1.1 Any interference with the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, particularly w ith respect to the amendments precluding preliminary enquiry, or provisions which remove the bar against arrest of public servants 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 Bureau, 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 report, 422,799 crimes against scheduled caste communities’ members and 81,332 crimes against scheduled tribe communities’ members were reported between 2006 and 2016. These facts, 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. 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. [Paras 17-19][760-C-G; 761-A-C]
1.2 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. Such stringent terms, otherwise contrary to the philosophy of bail, are absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament. 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 ( cU/kqRo) 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. [Paras 20, 21][761-C-H]
Indira Sawhney v Union of India [1992] Suppl. 1 SCR 454; Raghunathrao Ganpatrao v. Union of India
[1993] 1 SCR 480; Nandini Sundar v. State of
Chhatisgarh (2011) 7 SCC 457; Dalit Human Rights v. Union of India (2017) 2 SCC 432 : [2016] 9 SCR 122; Subhash Kashinath Mahajan v. State of Maharashtra & Ors. (2018) 4 SCC 454 : [2018] 4 SCR 877; Union of India v. State of Maharastra 2019 (13) SCALE 280 – referred to.
Guru Granth Saheb p.83; B. Shiva Rao: Framing of India’s Constitution Vol.III, Page 510 (1968); Report on the Prevention of Atrocities against Scheduled Castes Published by the National Human Rights Commission (accessed at https://nhrc.nic.in/publications/otherpublicationss on 15 December, 2019 at 08:27 hrs); Reports, recommendations and official data released by National Crime Records Bureau (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);Indiaspend(https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-by-746746/) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.