Decided on February 10, 2020
Coram – Arun Mishra, Vineet Saran and S. Ravindra Bhat JJ
Acts used – Scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 — Ss.18 and 18A
WHAT IS THE JUDGMENT –
- It is contended that S. 18A has been enacted to nullify the judgment in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra. Held, with respect to preliminary inquiry for registration of FIR, the general directions (iii) and (iv) issued in Subhash Kashinath’s case are recalled and a preliminary inquiry is permissible only in the circumstances as per the law laid down by a constitution bench in Lalita Kumari v. Government of U.P., (2014) shall hold good and the amended provisions of S.18A have to be interpreted accordingly.
- Held, S.482 of Cr.PC 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 Ss. 18 and 18A shall not apply.
(iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention.
(iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.—Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
“Section 18A. (i) For the purpose of this Act,-
(a) preliminary enquiry shall be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary,
of any person, against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.
(ii) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”
It is submitted that section 18A has been enacted to nullify the judgment of this Court in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra, (2018), in which following directions were issued:
83. Our conclusions are as follows:
- That arrest of a public servant can only be after approval of the appointing authority.
- The arrest of a non-public servant after approval by the Senior Superintendent of Police (SSP).
- The arrest may be in an appropriate case if considered necessary for reasons to be recorded;
- Reasons for arrest must be scrutinised by the Magistrate for permitting further detention;
- Preliminary enquiry to be conducted by the Dy. S.P. level officers to find out whether the allegations make out a case and that the allegations are not frivolous or motivated.
- Any violation of the directions mentioned above will be actionable by way of disciplinary action as well as contempt.
The above directions are prospective.
It is also submitted that the Court has struck down the provision of section 66A of the Information Technology Act on the ground of violation of fundamental rights; on the same anvil, the provisions of section 18A of the Act of 1989 deserve to be struck down.
The provisions in section 18A in the Act of 1989 had been enacted because of the judgment in Dr. Subhash Kashinath’s case, mainly because of direction Nos (iii) to (v) contained in para 83. The Union of India had filed review petitions, and the same have been allowed, and direction Nos (iii) to (v) have been recalled. Thus, in view of the judgment passed in the review petitions, the matter is rendered of academic importance as we had restored the position as prevailed by various judgments that were in vogue before the matter of Dr. Subhash Kashinathwas decided.
Review petitions (UoI v State of MH), 2019 –
- members of the Scheduled Castes and Scheduled Tribes have suffered for long; the protective discrimination has been envisaged under Article 15 of the Constitution of India and the provisions of the Act of 1989 to make them equals.
- All the offences under the Atrocities Act are cognizable. These directions put the riders on the right to arrest. An accused cannot be arrested in atrocities cases without the concurrence of the higher Authorities or appointing authority as the case may be. As per the existing provisions, the appointing authority has no power to grant or withhold sanction to arrest concerning a public servant.
- The National Commission for Scheduled Castes Annual Report 2015-16, has recommended for prompt registration of FIRs. The police often resort to preliminary investigation upon receiving a complaint in writing before lodging the actual FIRs. As a result, the SC victims have to resort to seeking directions from courts for registration of FIRs u/s 156(3) of Cr.P.C. Supreme Court has also on more than one occasion emphasized about registration of FIR first. This Commission again reemphasizes that the State/UT Governments should enforce prompt registration of FIRs
- SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached to them, by and large, they remain unequal and vulnerable section of the society. The classes of Scheduled Castes and Scheduled Tribes have been suffering ignominy and abuse, and they have been outcast socially for the centuries. The efforts for their upliftment should have been percolated down to eradicate their sufferings.
- In Khadak Singh v. State of Himachal Pradesh, 1963, this Court has observed that the right to life is not merely an animal’s existence. Under Article 21, the right to life includes the right to live with dignity. Basic human dignity implies that all the persons are treated as equal human in all respects and not treated as an untouchable, downtrodden, and object for exploitation.
- Hinch Lal Tiwari v. Kamla Devi, (2001) – The enjoyment of quality life by the people is the essence of guaranteed right under Article 21 of the Constitution
- Francis Coralie Mullin v. Union Territory Delhi, Administrator, (1981) and Olga Tellis v. Bombay Corporation, (1985) – Right to live with human dignity is included in the right to life
- People’s Union for Civil Liberties v. Union of India, (2005) – Gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits are instances of human rights violations
- Umesh Kumar v. State of Andhra Pradesh, (2013), Kishore Samrite v. State of Uttar Pradesh, (2013) and Subramanian Swamy v. Union of India, (2016) – A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property. Therefore, it has been held to be an essential element of the right to life of a citizen under Article 21
- The provisions of the Act of 1989 are, in essence, concomitants covering various facets of Article 21 of the Constitution of India.
- The Constitution of India provides equality before the law under the provisions contained in Article 14. Article 15(4) of the Constitution carves out an exception for making any special provision for the advancement of any socially and educationally backward classes of citizens or SCs. and STs. Further protection is conferred under Article 15(5) concerning their admission to educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Historically disadvantageous groups must be given special protection and help so that they can be uplifted from their poverty and low social status as observed in Kailas & Ors. v. State of Maharashtra, 2011
- Act of 1989, has been enacted and has also been amended in 2016 to make its provisions more effective. Special prosecutors are to be provided for speedy trial of cases. The incentives are also provided for rehabilitation of victims, protection of witnesses and matters
- Adequate safeguards have been provided by a purposive interpretation in the case of State of M.P. v. R.K. Balothia, (1995) – The consistent view by the Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Upheld the validity of section 18 of the Act of 1989.
- In Kartar Singh, a Constitution Bench of this Court has laid down that taking away the said right of anticipatory bail would not amount to a violation of Article 21 of the Constitution of India.
In re: sanction of the appointing authority :
- The provision of S197 CrPC deals with prior sanction before initiating prosecution against a public servant. But the S197 is limited to taking cognizance alone and not at the time of arrest. Arrest is covered u/s41 which says police has a power to arrest. So if S197 applied to S41 (arrest) then the inherent power of the police to conduct the investigation will be compromised.
- State of Orissa v. Debendra Nath Padhi, (2005) – In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482.
- Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged; it is encroaching on a field which is reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the Courts. – Realist School
In ref: approval of arrest by the SSP in the case of a non-public servant:
- Approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, obviously arrest has to be made. For an arrest of accused such a condition of approval of SSP could not have been made a sine qua non, it may delay the matter in the cases under the Act of 1989.
Requiring the Magistrate to scrutinise the reasons for permitting further detention:
- the public servant can be arrested after approval by appointing authority and that of a non-public servant after the approval of SSP.
- The direction has also been issued that the Dy. S.P. should conduct a preliminary inquiry to find out whether allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognisable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari by a Constitution Bench.
- The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held.
- We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of down- trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.
- Direction Nos. (iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes.
- There was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.
- Vilas Pandurang Pawar v. State of Maharashtra, (2012) – The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out.
- Shakuntla Devi v. Baljinder Singh, (2014) – without giving any reasons for the offence being committed HC given anticipatory bail contrary to S18 and Vilas Pandurang case.
- 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.
- The section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath, which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath which no more prevails.
Section 3 are offences
Ravindra Bhatt –
That is why the preambular assurance that the republic would be one which guarantees to its people liberties, dignity, equality of status and opportunity and fraternity.
It is this idea of India, – a promise of oneness of and for, all people, regardless of caste, gender, place of birth, religion and other divisions that Part III articulates in four salient provisions: Article 15, Article 17, Article 23 and Article 24. The idea of fraternity occupying as crucial a place in the scheme of our nation’s consciousness and polity, is one of the lesser explored areas in the constitutional discourse of this court. The fraternity assured by the Preamble is not merely a declaration of a ritual handshake or cordiality between communities that are diverse and have occupied different spaces: it is far more.
Article 15 is an important guarantee against discrimination. What is immediately noticeable is that whereas Article 15 (1) enjoins the State (with all its various manifestations, per Article 12) not to discriminate on the proscribed grounds (religion, race, caste, sex (i.e. gender), place of birth or any of them), Article 15 (2) is a wider injunction: it prohibits discrimination or subjection to any disability of anyone on the grounds of religion, caste, race, sex or place of birth in regard to access to shops, places of public entertainment, or public restaurants (Article 15 (2) (a)). Article 15(2) (b) proscribes the subjection of anyone to any disability on the proscribed grounds (i.e. discrimination on grounds of religion, caste, race, sex or place of birth) with regard to “the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public..”
The making of this provision-and others, is impelled by the trinity of the preambular vision that the Constitution makers gave to this country. Paeans have been sung about the importance of liberty as a constitutional value: its manifest articulation in the (original) seven “lamps” -i.e. freedoms under Article 19 of the Constitution; the other rights to religion, those of religious denominations, etc.
All the three – Liberty, Equality and Fraternity, are intimately linked. The right to equality, sans liberty or fraternity, would be chimerical – as the concept presently known would be reduced to equality among equals, in every manner-a mere husk of the grand vision of the Constitution. Likewise, liberty without equality or fraternity, can well result in the perpetuation of existing inequalities and worse, result in license to indulge in society’s basest practices. It is fraternity, poignantly embedded through the provisions of Part III, which assures true equality, where the state treats all alike, assures the benefits of growth and prosperity to all, with equal liberties to all, and what is more, which guarantees that every citizen treats every other citizen alike.
Drafting Committee had added a clause about fraternity in the Preamble even though it was not part of the Objectives Resolution because it felt that “the need for fraternal concord and goodwill in India was never greater than now, and that this particular aim of the new Constitution should be emphasized by special mention in the Preamble
Justice Thommen, in Indira Sawhney v. Union of India said this –
“The makers of the Constitution were fully conscious of the unfortunate position of the Scheduled Castes and Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch. These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim.”
Nandini Sundar v. State of Chhatisgarh and Raghunathrao Ganpatrao v. Union of India
(T)he Constitution itself, in no uncertain terms, demands that the State shall strive, incessantly and consistently, to promote fraternity amongst all citizens such that dignity of every citizen is protected, nourished and promoted.
Added a caveat that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests:
- 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, 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