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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 ..... 017 of the High Court of Judicature at Bombay in Criminal Application No. 1015 of 2016. 2. On 20th November, 2017 the following order was passed by this Court: "Heard learned Counsel for the parties. Certain adverse remarks were recorded against Respondent No. 2-Bhaskar Karbhari Gaidwad by the Principal and Head of the Department of the College of Pharmacy where Respondent No. 2 was employed. Respondent No. 2 sought sanction for his prosecution under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and for certain other connected offences. The said matter was dealt with by the Petitioner and sanction was declined. This led to another complaint by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Burade which was not accepted by the court. He then lodged the present FIR against the Appellant. According to the complainant, the Director of Technical Education was not competent to grant/refuse sanction as the above two persons are Class-I officers and only the State Government could grant sanction. Thus, according to him, the Appellant committed the offences alleged in the FIR dated 28th March, 2016 by illegally dealing with the matter of sanction. 5. The complaint is fully extracted below: "In the year 2009 I was working as store keeper in the Govt. Pharmacy College Karad, at that time I have registered complaint to Karad City Police Station Cr. No. 3122/09 Under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior Counsel, appearing as amicus, Shri Maninder Singh, learned Additional Solicitor General, appearing for the Union of India, Shri C.U. Singh, learned senior Counsel and the other learned Counsel appearing for the intervenors and learned Counsel for the parties and perused the record. 9. We may refer to the submissions put forward before the Court: Submissions of learned Amicus 10. Learned amicus submitted that in facts of the present case, no offence was made out Under Sections 3(1)(ix), 3(2)(vi) and 3(2) (vii) of the Atrocities Act and Sections 182, 192, 193, 203 and 219 of the Indian Penal Code and, thus, the High Court ought to have quashed the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echanical. It has been laid down that the exercise of power of arrest requires reasonable belief about a person's complicity and also about need to effect arrest. Reliance has been placed on Joginder Kumar v. State of U.P. (1994) 4 SCC 260, M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649, D. Venkatasubramaniam v. M.K. Mohan Krishnamachari (2009) 10 SCC 488, Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Rini Johar and Ors. v. State of M.P. and Ors. (2016) 11 SCC 703. 14. It was submitted that in the context of the Atrocities Act, in the absence of tangible material to support a version, to prevent exercise of arbitrary power of arrest, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision. 13.......The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case 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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as working as a storekeeper. She had made a complaint against him for her sexual harassment and as a reaction, the FIR was lodged by Respondent No. 2 by way of the Atrocities Act. Her anticipatory bail application was rejected by the session court but the High Court, vide order dated 23rd November, 2017, granted interim protection against arrest. Thereafter, Respondent No. 2 initiated proceedings Under Section 107 Code of Criminal Procedure and the intervenor received notice dated 2nd December, 2017 from the Magistrate. It was submitted that there was no safeguard against false implication, undue harassment and uncalled for arrest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be considered on the same day and if not the regular bail, then at the least interim bail should be granted in the interest of justice. This requirement may be read into Section 18 of the POA Act. 21. In support of the submission that courts have acknowledged the misuse of law, reliance has also been placed on the following Judgments: (i) Judgment of the Madras High Court in Jones v. State 2004 SCC OnLine Mad 922 2004 CriLJ 2755 wherein the High Court observed: This Court recently has brought to light the misuse of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand further subjected to trial !! Not only that but before that even subjected to arrest before the public eye and taken to Special Court where only he could pray for bail ! Thus, subjected to all sort of agonies, pains and sufferings lowering his image and esteem in the eye of public because the Court when approached adopted the helpless attitude? Under such bewildering circumstances, what indeed would be the face of the Court and the fate of the Administration of Justice denying bail to some victimised innocent Accused at crucial stage when he surrenders to the Court custody for the 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 itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the provisions contemplated under the laudable Act. An Act enacted for laudable purpose can also become unreasonable, when it is exercised over-zealously by the enforcing authorities for extraneous reasons. It is for the authorities to guard against such misuse of power conferred on them. 49. Passing mechanically orders by the Court of Magistrates in complaint and/or registration of the F.I.R. at the Police Station, which do not have any criminal element, causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons the reputation of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the Rules made thereunder are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of 'judicial consideration-discretion' and therefore neither mere allegations made in the complainant by themselves nor bare denials by the Accused can either automatically vest or divest the Court from discharging its ultimate judicial function-duty to closely scrutinise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuine victims but, there being no safeguard even against a false case being registered only to get the monetary incentive, such false cases may be filed without any remedy to the affected person. 25. Reference has also been made to Annual Report 2016-2017 of the Ministry of Social Justice and Empowerment and data compiled by the Government of Maharashtra for the years 1990 to 2013 (dated 30th April, 2013) in respect of offences registered under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Protection of Civil Rights 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 Disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Atrocities Act. He also submitted that decisions of this Court in Vilas Pandurang Pawar and Anr. v. State of Maharashtra and Ors. (2012) 8 SCC 795 and Shakuntla Devi v. Baljinder Singh (2014) 15 SCC 521 permit grant of anticipatory bail if no prima facie case is made out. Thus, in genuine cases anticipatory bail can be granted. He also submitted that the Government of India had issued advisories on 3rd February, 2005, 1st April, 2010 and 23rd May, 2016 and also further amended the Atrocities Act vide Amendment Act 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 misu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1984) 3 SCC 161, para 13. There are enumerable decisions of this Court where this approach has been adopted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such directions can certainly be issued and continued till an appropriate legislation is enacted Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional prescription. The range of judicial, review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which [violates the basic structure of the Constitution. See Kesavananda Bharati Sripadagalayaru v. State of Kerala AIR 1973 SC 1461), Smt. 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 Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Liberties versus UOI (2004) 12 SCC 104 and (2010) 15 SCC 57; directions to provide medical assistance by Government run hospitals Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4 SCC 37; directions for protection of human rights of prisoners Sunil Batra versus Delhi Admn. (1978) 4 SCC 494; directions for speedy trial of under trials Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98. The list goes on. 36. Issuance of 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r detention; 11.4. The Magistrate while authorising detention of the Accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It should not be arbitrary or excessive Para 194 and 195. 40. Again this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 laid down parameters for exercise of discretion of anticipatory bail having regard to the fundamental right of liberty Under Article 21 of the Constitution and the needs of the society where such liberty may be required to be taken 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) The nature and gravity of the accusation and the exact role of the Accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the Accused has previously undergone imprisonment on conviction by a court in respect of any cognizable 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 praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption in the police. The Report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. 116. Personal liberty is a very precious fundamental 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. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantees equality in its preamble as well as other provisions including Articles 14-16. The Constitution envisages a cohesive, unified and casteless society. 43. Dr. B.R. Ambedkar, in his famous speech on 25th November, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide in that these have been successful and generally acknowledged to be free and fair. But, the experience has also brought to the fore many distortions, some very serious, generating a deep concern 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing committed an offence under this Act. 50. In Balothia (supra), 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. 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 amicu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d offences 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 (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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused being actually arrested. Reference was also made to Kartar Singh v. State of Punjab (1994) 3 SCC 569-para 368 (17) to the effect that jurisdiction Under Article 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]. Viewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement to violence or intention or tendency to create public disorder or cause disturbance of public peace. 58. 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. 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rampant, breath taking and has reached such a desperate pass that it indeed needed a very stringent and desperate legislation which could help 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 instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from doubt. If that is so, very applicability of the Atrocities Act is rendered doubtful. If that is the situation, then to refuse the anticipatory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid decision of the Supreme Court.......... ... ... ... ... 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 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 unj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary legislation'. 85. All these concepts of "due process" and the concept of a just, fair and reasonable 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 burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nocence, which serves not only to protect a particular individual on 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no provision for anticipatory bail in the State 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: (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 doubt, Section 5A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 motivated. Consideration of present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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