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TMI Blog2018 (3) TMI 2005X X X X Extracts X X X X X X X X Extracts X X X X ..... orcement 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 2 against the Petitioner under the said provisions. The quashing of the said complaint has been declined by the High Court. The question which has arisen in the course of consideration of this matter is whether any unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity and if such allegation is falsely made what is protection available against such abuse. Needless to say that if the allegation is to be acted upon, the proceedings can result in arrest or prosecution of the person and have serious consequences on his right to liberty even on a false complaint which may not be intended by law meant for protection of a bona fide victim. The question is whether this will be just and fair procedure Under Article 21 of the Constitution of India or there can be procedural safeguards so that provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not abused for extraneous considerations. Issue notice returnable on 10th January, 2018. In the meanwhile, there shall be stay of further proceedings. Issue notice to Attorney General of India also as the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(1)9, 3(2)(7)6 of S.C. S.T. (Prevention of Atrocities) Act and the investigation was done by Shri Bharat Tangade, then D.Y.S.P. Karad division Karad in the investigation 1) Satish Balkrushna Bhise, then Principal Pharmacy College Karad, 2) Kishor Balkrishna Burade, then Professor, Pharmacy College Karad has been realized as Accused in the present crime. Investigation officer collect sufficient evidence against both the accused, but both the Accused are from Govt. Technical Education department Class 1 Public Servant, so before filing charge sheet against them he wrote the letter to the senior office of the Accused Under Section 197 of Code of Criminal Procedure to take the permission at that time Mr. Subhash Kashinath Mahajan was working as incharge director of the office. Today also he is working as same post. Mr. Mahajan does not belongs to S.C. S.T. but he knew that I belongs to S.C. and S.T. In fact both the Accused involved in crime No. 3122/09 are working on class 1 post and to file a charge sheet against them the permission has to be taken according to Code of Criminal Procedure Section 197. This fact known to Shri Mahajan and Mr. Mahajan knew that this office did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings. He submitted the following table to explain his point: table 1 11. It was submitted by learned amicus that FIR was lodged after five years of the order passed by the Appellant. The order was passed on 20th January, 2011 while the FIR was lodged on 28th March, 2016 which further strengthened the case for quashing in addition to the facts and legal contentions noted in the previous para. Moreover, in absence of any allegation of malafides, even if order passed by the Appellant was erroneous proceedings against him are not called for. 12. Learned amicus submitted that under the scheme of the Atrocities Act, several offences may solely depend upon the version of the complainant which may not be found to be true. There may not be any other tangible material. One sided version, before trial, cannot displace the presumption of innocence. Such version may at times be self serving and for extraneous reason. Jeopardising liberty of a person on an untried unilateral version, without any verification or tangible material, is against the fundamental rights guaranteed under the Constitution. Before liberty of a person is taken away, there has to be fair, reasonable and ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a preliminary enquiry may be made mandatory. Reasons should be required to be recorded that information was credible and arrest was necessary. In the case of public servant, approval of disciplinary authority should be obtained and in other cases approval of Superintendent of Police should be necessary. While granting such permission, based on a preliminary enquiry, the authority granting permission should be satisfied about credibility of the information and also about need for arrest. If an arrest is effected, while granting remand, the Magistrate must pass a speaking order as to correctness or otherwise of the reasons for which arrest is effected. These requirements will enforce right of concerned citizens Under Articles 14 and 21 without in any manner affecting genuine objects of the Act. 15. Learned amicus further submitted that Section 18 of the Atrocities Act, which excludes Section 438 Code of Criminal Procedure, violates constitutional mandate Under Articles 14 and 21 and is ultra vires the Constitution. The said provision was upheld in State of M.P. v. Ram Krishna Balothia (1995) 3 SCC 221 but the said judgment was in ignorance of the Constitution Bench judgment in Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on such conditions as the case may warrant..... 21........A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.... 26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est and thus, this Court must incorporate safeguards against unreasonable and arbitrary power of arrest in such cases without following just fair and reasonable procedure which may be laid down by this Court. Such requirement, it was submitted, was implicit requirement of law but was not being followed. 18. Laying down safeguards to enforce constitutional guarantee Under Article 21 was necessary in view of the Sixth Report dated 19th December, 2014 of the Standing Committee on Social Justice and Empowerment (2014-15) on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 rejecting the stand of the Ministry to the effect that there was no need to provide for action against false or malafide implication under the Atrocities Act. It was observed therein: 3 .9 The Committee are not inclined to accept the contention of the Ministry that those who are found to be misusing the provisions of the Act can be tried as per normal law of the land under the relevant Sections of the Indian Penal Code. The Committee are of the firm view that the PoA Act, being a special law, should be wholesome to the extent that it must contain an inbuilt provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities) Act, 1989 against people of other community. This is another example of misuse of the Act. The purpose of bringing SC ST Act is to put down the atrocities committed on the members of the scheduled castes and scheduled tribes. The law enforcing authorities must bear in mind that it cannot be misused to settle other disputes between the parties, which is alien to the provisions contemplated under the Act. An Act enacted for laudable purpose can also become unreasonable, when it is exercised overzealously by the enforcing authorities for extraneous reasons. It is for the authorities to guard against such misuse of power conferred on them. (ii) Judgment of Gujarat High Court in Dr. N.T. Desai v. State of Gujarat (1997) 2 GLR 942 observing: But then having closely examined the complaint more particularly in the context and light of the backdrop of the peculiar facts situation highlighted by the Petitioner leading ultimately to filing of the complaint, this Court prime facie at the very outset is at some doubt about the complainant's story and yet if it readily, mechanically like a gullible child accepts the allegations made in the complaint at its face value, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose?!! Should the Court proclaiming doing justice stand befooled at the hands of some mischievous complainant with head-down in shame !! Supposing for giving false evidence before the Court, the complainant is ordered to be prosecuted, but then will such prosecutions of complainant bring back the damage already done to an innocent !! Bearing in mind this most embarrassing and excruciating situation created by the complainant when, this Court as a Constitutional functionary is duty bound to zealously protect the liberty of citizen, should it be helplessly watching and passively surrendering itself to sometimes prima facie ex-facie malicious complaint denying simple bail to the accused? In this regard, perhaps, it may be idly said that Accused can be given compensation for the malicious prosecution and ultimate refusal of bail or anticipatory bail !! True, but then in that case what compensation can any Court would be in a position to give when the complainant is a person who is poor enough unable to pay a single pie?!! Not only that but in case complainant is rich and able to pay compensation then even can any monetary compensation ever adequately compensate the wrong Accused s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e citizen is put to stake as immediately after the said orders are passed, innocent citizens are turned as accused. One should not overlook the fact that there is Section-18 in the Atrocities Act, which imposes a bar so far as the grant of anticipatory bail is concerned, if the offence is one under the Atrocities Act. If a person is Accused having committed murder, dacoity, rape, etc., he can pray for anticipatory bail Under Section--438 of the Code of Criminal Procedure on the ground that he is innocent and has been falsely involved, but if a person alleged to have committed an offence under the Atrocities Act, cannot pray for an anticipatory bail because of the bar of Section-18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provisions of the Atrocities Act. (iv) Judgment of Gujarat High Court in Pankaj D Suthar v. State of Gujarat (1992)1 GLR 405 observing: 4. ...But then, what according to this Court is the most welcome step by way of collective wisdom of the Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreak some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision. (v) Judgment of Bombay High Court in Sharad v. State of Maharashtra 2015(4) BomCR(Crl) 545 observing: 12. We hasten to add that such type of complaints for rampant misuse of the provisions of Section 3(1)(x) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989, are largely being filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests. We think the learned Members of the Bar have enormous social responsibility and obligation to ensure that the social fabric of the society is not damaged or ruined. They must ensure that exaggerated versions should not be reflected in the criminal complaints having the outrageous effect of independence of judicial and quasi judicial authorities so also the public servants. We cannot tolerate putting them in a spooked, chagrined and fearful state while performing their public duties and functions. We also think that a serious re-look at the provisions of the Act of 1989 which are being now largely misused is warranted by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1955 against Maharashtra Members of Parliament, Member of Legislative Assembly, Zilla Parishad Adhyaksha, Gramsevak, Talathi, B.D.O., Collector, Palakmantri, Chief Minister, Home Minister, IPS, IAS, IRS, IFS, MNP Commissioner, MNP Assistant Commissioner, other Government Officer/Servant, other non-Government Officers/Servants (numeric data prepared on the basis of information available). 26. As per data (Crime in India 2016-Statistics) compiled by the National Crime Records Bureau, Ministry of Home Affairs under the headings Police Disposal of Crime/Atrocities against SCs cases (State/UT-wise)-2016 (Table 7A.4) and Police Disposal of Crime/Atrocities against STs Cases (State/UT-wise)-2016 (Table 7C.4) it is mentioned that in the year 2016, 5347 cases were found to be false cases out of the investigated out of SC cases and 912 were found to be false cases out of ST cases. It was pointed out that in the year 2015, out of 15638 cases decided by the courts, 11024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4119 cases resulted in conviction. (Reference: Annual Report 2016-2017 published by the Department of Social Justice Empowerment, Ministry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 of 2016 which provides for creation of Special Courts as well as Exclusive Special Courts. Referring to the data submitted by the National Crime Records Bureau (NCRB) it was further submitted that out of the total number of complaints investigated by the police in the year 2015, both for the persons belonging to the SC category and also belonging to the ST category, in almost 15-16% cases, the competent police authorities had filed closure reports. Out of the cases disposed of by the courts in 2015, more than 75% cases have resulted in acquittal/withdrawal or compounding of the cases. It was submitted that certain complaints were received alleging misuse of the Atrocities Act and a question was also raised in Parliament as to what punishment should be given against false cases. The reply given was that awarding punishment to members of SCs and STs for false implication would be against the spirit of the Act. A press statement dated 19th March, 2015 was issued by the Central Government to the effect that in case of false cases, relevant Sections of Indian Penal Code can be invoked. It was submitted that no guideline should be laid down by this Court which may be legislative i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute Supreme Court Bar Asson. V. UOI (1998) 4 SCC 409, para 48 . Power to declare law carries with it, within the limits of duty, to make law when none exists Dayaram vs. Sudhir Batham (2012) 1 SCC 333, para 18 . 33. Constitution Bench of this Court in Union of India v. Raghubir Singh (1989(2) SCC 754, observed: 7....It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior Courts. There was a time, observed Lord Reid, When it was thought almost indecent to suggest that Judges make law-They only declare it.... But we do not believe in fairly tales anymore. The Judge as Law Maker , p. 22. In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the constitutional structure of the State, the role played by judicial law-making is limited. In the first place the function of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indira Nehru. Gandhi v. Raj Narain [1976]2SCR347], Minerva Mills Ltd. v. Union of India [1981]1SCR206] and recently in S.P. Sampath Kumar v. Union of India [(1987)ILLJ128SC]. With this impressive expanse of judicial power, it is only right that the superior Courts in India should be conscious of the enormous responsibility which rests on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all Courts within the territory of India. 34. The law has been summed up in a decision in Rajesh Kumar v. State (2011) 13 SCC 706 as follows: 62. Until the decision was rendered in Maneka Gandhi (supra), Article 21 was viewed by this Court as rarely embodying the Diceyian concept of Rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example given by Justice S.R. Das in his judgment in A.K. Gopalan (supra) that if the law provided the Bishop of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f directions to regulate the power of arrest has also been the subject matter of decisions of this Court. In Joginder Kumar v. State of U.P. (1994) 4 SCC 260, this Court 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. 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. The exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A Code of Criminal Procedure be served on the Accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. 37. In D.K. Basu v. State of W.B. (1997) 1 SCC 416, this Court, to check abuse of arrest and drastic police power, directed as follows: 35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. 36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en away. It was observed: Relevance and importance of personal liberty 36. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why liberty is called the very quintessence of a civilised existence.... 52. The fundamental rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the Framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclusion of a chapter in the Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes.... 54. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rudence that the Accused is presumed to be innocent till he is found guilty by the competent court. 87. The complaint filed against the Accused needs to be thoroughly examined including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the Accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. 88. The gravity of charge and the exact role of the Accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the Accused in the case diary In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. 89. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the Accused very carefully. The court must also clearly comprehend the exact role of the Accused in the case. The cases in which the Accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. 117. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the Accused in a routine manner. These suggestions are only illustrative and not exhaustive: (1) Direct the Accused to join the investigation and only when the Accused does not cooperate with the investigating agency, then only the Accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the fixed deposit receipts/share certificates of the accused. (3) Direct the Accused to execute bonds. (4) The Accused may be directed to furnish sureties of a number of persons which according to the prosecution are necessary in view of the facts of the particular case. (5) The Accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. (6) Bank accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1949, on conclusion of deliberations of the Constituent Assembly, stated: These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy Liberty cannot be divorced from equality, equality cannot be divorced from liberty Nor can liberty and equality be divorced from fraternity Without equality, liberty would produce the supremacy of the few over the many Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them....... ... ... ... ... .. In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity, equality and liberty will be no deeper than coats of paint. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cern in many quarters. There are constant references to the unhealthy role of money power, muscle power and mafia power and to criminalisation, corruption, communalism and casteism. 46. The speech of the then Prime Minister Shri Atal Behari Vajpayee on this aspect was also noted in para 48 of the above judgment which is as follows: Mr. Divan in course of his arguments, had raised some submissions on the subject--'Criminalisation of Politics' and participation of criminals in the electoral process as candidates and in that connection, he had brought to our notice the order of the Election Commission of India dated 28-8-1997....--'Whither Accountability', published in The Pioneer, Shri Atal Behari Vajpayee had called for a national debate on all the possible alternatives for systematic changes to cleanse our democratic governing system of its present mess. He has expressed his dissatisfaction that neither Parliament nor the State Vidhan Sabhas are doing, with any degree of competence or commitment, what they are primarily meant to do: legislative function. According to him, barring exceptions, those who get elected to these democratic institutions are neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Referring to the Statement of Objects and Reasons, it was observed that members of SC and ST are vulnerable and are denied number of civil rights and they are subjected to humiliation and harassment. They assert their rights and demand statutory protection. Vested interests try to cow them down and terrorise them. There was increase in disturbing trend of commission of atrocities against members of SC and ST. Thus, 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. 51. Though we find merit in the submission of learned amicus that judgment of this Court in Ram Krishna Balothia (supra) may need to be revisited in view of judgments of this Court, particularly Maneka Gandhi (supra), we conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arrest at the stage of grant of regular bail as well. The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act) 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 the Code may be rejected by the Court because of express restrictions in Section 18 of the Act but the very same court can grant bail under the provisions of Section 437 of the Code, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 226 is not barred even in such cases. 56. 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. 57. A Constitution Bench of this Court in Kedar Nath v. State of Bihar AIR 1962 SC 955: 1962 Supp (2) SCR 769 observed: 26. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal Immunity Co. Limited v. State of Bihar [1955 2 SCR 603] and (2) R.M.D. Chamarbaugwala v. Union of India [1957 SCR 930]. Viewed in that light, we have no hesitation in so construing the provisions of the Sections impugned in these cases as to limit their application to acts involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature 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. 59. 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 black mailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lp save the situation by effectively providing the legal protection to such cursed, crushed and downtrodden members of S.Cs. S.Ts. communities. Under such circumstances, it is equally the paramount duty of every Court to see that it responds to legislative concern and call and ensure effective implementation of the Atrocities Act, by seeing that the provisions enshrined in the said Act are duly complied with. But then, what according to this Court is the most welcome step by way of collective wisdom of the Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreak some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are-Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nticipatory bail on mere accusations and assumptions that the Petitioner-accused has committed an offence under the Atrocities Act would be absolutely illegal, unjudicious, unjust and ultimately a travesty of justice. No Court can ever embark upon such hazards of refusing anticipatory bail on mere doubtful accusations and assumptions that Atrocities Act is applicable. No Court could and should be permitted to bo 'spoon-fed' by the complainant whatever he wants to feed and swallow whatever he wants the Court to gulp down to attain and secure his unjust mala fide motivated ends. Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but it does not and it certainly cannot whisk away the right of any Court to have a prima facie judicial scrutiny of the allegations made in the complaint. Nor can it under its hunch permit provisions of law being abused to suit the mala fide motivated ends of some unscrupulous complainant. In this case also if indeed this Court been satisfied with the story revealed by the complainant as truthful and genuine, then anticipatory bail would have been surely rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly in the context and light of the backdrop of the peculiar facts situation highlighted by the Petitioner leading ultimately to filing of the complaint, this Court prime facie at the very outset is at some doubt about the complainant's story and yet if it readily, mechanically like a gullible child accepts the allegations made in the complaint at its face value, it would be surely blundering and wandering away from the path of bail-justice, making itself readily available in the hands of the scheming complainant who on mere asking will get arrested Accused on some false allegations of having committed non-bailable offence, under the Atrocity Act, meaning thereby the Court rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary prudence with no perception for justice, denying the rightful protection to the Accused becoming ready pawn pliable in the hands of sometime scheming, unscrupulous complainants! This sort of a surrender to prima facie doubtful allegation in the complaint is not at all a judicial approach, if not unjudicial !!... 63. The above judgments correctly lays down the scope of exclusion as well as permissibility of anticipato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable law have been read by this Court into the guarantee Under Articles 14 and 21 of the Constitution.... 65. 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 Noor Aga v. State of Punjab (2008) 16 SCC 417, it was observed: 33. Presumption of innocence is a human right as envisaged Under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India). xxxx xxxx xxxx 35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases. 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. 66. We have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P. He placed reliance on a decision of the Allahabad High Court in Amarawati v. State of U.P. [2005 Crl LJ 755 (All)] in which a seven-Judge Full Bench of the Allahabad High Court held that the court, if it deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of the bail application. The Full Bench also observed that arrest is not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in Joginder Kumar v. State of U.P.[(1992) 4 SCC 260]. 7. We fully agree with the view of the High Court in Amarawati case and we direct that the said decision be followed by all courts in U.P. in letter and spirit, particularly since the provision for anticipatory bail does not exist in U.P. 8. In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation, as held by this Court in Joginder Kumar case. Also, arrest is not a must in all cases of cognizable offences, and in deciding whether to arrest or not the police officer must be guided and act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 74. 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. We approve the view of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra). We clarify the Judgments in Balothia (supra) and Manju Devi (supra) to this effect. Issue of safeguards against arrest and false implications 75. We may now deal with the issue as to what directions, if any, are necessary, apart from clarifying the legal position with regard to anticip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the Accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 78. The above view is consistent with earlier judgments in State of U.P. v. Bhagwant Kishore Joshi AIR 1964 SC 221 : 1964(3) SCR 221 and P. Sirajuddin v. State of Madras (1970) 1 SCC 595. In Bhagwant Kishore it was observed: .........In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused person also has a right to apply for anticipatory bail under the provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining an order from the court. 81. Accordingly, we direct 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 moti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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