2018 (3) TMI 2005 - SC - Indian Laws

Seeking grant of anticipatory bail - Director of Technical Education was competent to grant/refuse sanction or not - appellant claims that he had merely passed a bonafide administrative order in his official capacity - whether directions can be issued by this Court to protect fundamental right Under Article 21 against uncalled for false implication and arrests? - HELD THAT - The jurisdiction of this Court to issue appropriate orders or directions for enforcement of fundamental rights is a basic feature of the Constitution. This Court, as the ultimate interpreter of the Constitution, has to uphold the constitutional rights and values. Articles 14, 19 and 21 represent the foundational values which form the basis of the Rule of law. Contents of the said rights have to be interpreted in a manner which enables the citizens to enjoy the said rights - Enforcement of a legislation has also to be consistent with the fundamental rights. Undoubtedly, this Court has jurisdiction to enforce the fundamental rights of life and liberty against any executive or legislative action. The expression 'procedure established by law' Under Article 21 implies just, fair and reasonable procedure. 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. This Court noted the 3rd Report of the National Police Commission to the effect that power of arrest was one of the chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arrest could be 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. This Court observed that no arrest can be made merely because it is lawful to do so. It is, thus, too late in the day to accept an objection that this Court may not issue any direction which may be perceived to be of legislative nature even if it is necessary to enforce fundamental rights Under Articles 14 and 21 of the Constitution. Potential impact of working of Atrocities Act on spreading casteism - HELD THAT - The 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. Anticipatory bail - whether there is an absolute bar to the grant of anticipatory bail in which case the contention for revisiting the validity of the said provision may need consideration? - HELD THAT - In Balothia 1995 (2) TMI 469 - SUPREME COURT , Section 18 was held not to be violative of Articles 14 and 21 of the Constitution. It was observed that exclusion of Section 438 Code of Criminal Procedure in connection with offences under the Act had to be viewed in the context of prevailing social conditions and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders, if they are granted anticipatory bail - the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation. 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. There are no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. 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. Issue of safeguards against arrest and false implications - HELD THAT - There is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court. 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. Appeal allowed.

Summary

Issues Involved:

1. Whether unilateral allegations of mala fide can justify the prosecution of officers acting in their official capacity.
2. The protection available against false allegations under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. The validity and interpretation of Section 18 of the Atrocities Act concerning anticipatory bail.
4. The necessity of procedural safeguards to prevent the misuse of the Atrocities Act.
5. The requirement of preliminary inquiry before arrest under the Atrocities Act.
6. The role of constitutional courts in issuing directions to protect fundamental rights against false implications and arrests.

Detailed Analysis:

1. Unilateral Allegations of Mala Fide:
The Supreme Court examined whether unilateral allegations of mala fide can justify the prosecution of officers acting in their official capacity. It was noted that such allegations, if false, could have serious consequences on an individual's right to liberty. The Court emphasized that if acted upon, these allegations could lead to arrest or prosecution, which would be unjust and unfair under Article 21 of the Constitution of India.

2. Protection Against False Allegations:
The Court highlighted the need for procedural safeguards to prevent the misuse of the Atrocities Act for extraneous considerations. It acknowledged the potential for abuse of the Act and emphasized the necessity of protecting individuals from false implications. The Court referred to various judgments acknowledging the misuse of the Act and the need for safeguards against arbitrary arrests and false implications.

3. Validity and Interpretation of Section 18 of the Atrocities Act:
Section 18 of the Atrocities Act, which excludes the application of Section 438 of the Code of Criminal Procedure (anticipatory bail), was scrutinized. The Court clarified that the exclusion of anticipatory bail under Section 18 applies only when a prima facie case of commission of an offense under the Act is made. It held that if allegations are prima facie motivated and false, the exclusion of anticipatory bail would not apply. The Court emphasized that the bar on anticipatory bail should not be absolute and must be interpreted to protect innocent individuals from false allegations.

4. Necessity of Procedural Safeguards:
The Court underscored the importance of procedural safeguards to prevent the misuse of the Atrocities Act. It referred to the need for a preliminary inquiry before arrest to ascertain the credibility of the allegations. The Court directed that no arrest should be made without written permission from the appointing authority or the Senior Superintendent of Police, depending on whether the accused is a public servant or not. The reasons for granting such permission must be recorded and scrutinized by the Magistrate.

5. Requirement of Preliminary Inquiry:
The Court mandated a preliminary inquiry by the Deputy Superintendent of Police (DSP) to determine whether the allegations make out a case under the Atrocities Act and whether they are not frivolous or motivated. This inquiry should be time-bound and completed within seven days. The Court emphasized that arrest is not mandatory upon registration of an FIR and must be justified by credible information and necessity.

6. Role of Constitutional Courts in Issuing Directions:
The Supreme Court asserted its jurisdiction to issue directions for the enforcement of fundamental rights under Articles 14 and 21 of the Constitution. It emphasized that the Court has the power to fashion new tools and strategies to check injustice and violation of fundamental rights. The Court issued directions to ensure that the Atrocities Act is not misused and that innocent individuals are protected from false allegations and arbitrary arrests.

Conclusion:
The Supreme Court quashed the proceedings against the appellant, holding that they were an abuse of the process of the court. It concluded that there is no absolute bar against the grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or if the complaint is found to be mala fide. The Court directed that in cases under the Atrocities Act, arrest of a public servant can only be made with the approval of the appointing authority, and of a non-public servant with the approval of the Senior Superintendent of Police. A preliminary inquiry must be conducted to determine the credibility of the allegations. Any violation of these directions will be actionable by way of disciplinary action and contempt. The directions are prospective.