BENCH– Arun Mishra, Vineet Saran, S. Ravindra Bhat
INTRODUCTION
The present case law is dealing with the challenge upon insertion of section 18- A in the prevention of atrocities act 1989, which has been amended by parliament in 2018. This case is an initiative with a writ petition before Supreme Court challenging section 18-A on the ground that the same was inserted to nullify the supreme court guidelines framed in Subhash Kashinath Mahajan v. State of Maharashtra & Anr[1] At the very first instance, Division Bench has heard the matter but later on referred to 3 judge bench headed by Arun Mishra, Vineet Saran, S. Ravindra Bhat. The Supreme court in the present case upheld the validity of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act,2018 which inserted section 18-A.
BACKGROUND
OF THE CASE
In
Subhash Kashinath Mahajan v. State of Maharashtra & Anr (2018) Supreme
Court passed some safeguards to prevent the misuse of protection given to SC/ST
people through SC/ST Act, 1989.
Guidelines
are as follows-
Conduct of preliminary inquiry before registration of First Information Report
Investigating officers should receive approval before arrest.
Anticipatory bail to the accused, notwithstanding any judgment or order or direction of any court.
After this judgment, there was hue and cry among Dalits and scheduled castes people and they condemned these very safeguards, then in the month of August parliament overturned the guidelines by introducing an amendment named prevention of atrocities act 2018 which inserted section 18-A in the act wherein it was mentioned that no preliminary enquiry is needed under this act when there is an offence, also anticipatory bail is not available to the offender. In short, this amendment diluted the effect of safeguards given in Kashinath Mahajan case. This was further challenged in the honorable Supreme Court through a writ petition.
CONTENTIONS OF PETITIONERS
Right to anticipatory bail under section 438
of CrPC is a part of personal liberty if that is being taken it would be clear
violation of Art 21 and even the accused has the right to get anticipatory
bail.
Safeguards which have been provided in
kashinath case is justifiable because they prevent abuse of prevention of
atrocities act.
It was the contention of petitioners that court
has already struck down 66A of IT Act on the basis of violation of fundamental
rights, on the same anvil section 18-A of prevention of atrocities act 2018
deserves to be struck down.
CONTENTIONS
OF RESPONDENT
On the behalf of Central Government Attorney General KK Venugopal has contended that the amendment was made due to a large number of acquittal cases and because of more checks and safeguards police somehow failed to investigate and implement the act itself which defeated the purpose of enacting same and rendered the act ineffective for dalits and Schedule caste.
The respondent further argued that the amendment is in accordance with the object of the act which ensures the protection of the SC/ST section of the society.
OBSERVATIONS
OF SUPREME COURT (Arun Mishra ,Vineet Saran)
The Honorable Court has observed that is important to consider some aspects of our society. It is a well known fact that as the members of the Scheduled Castes and Scheduled Tribes are suffering way long, although the protective discrimination has been contemplated under Article 15 of the Constitution of India and the provisions of the atrocities act is assisting one for making them equal.
Offences under 1989 act are Cognizable and the guidelines of Subhash Mahajan case may put riders on the right to arrest. An accused cannot be arrested in atrocities cases without the consultance of the superior Authorities or appointing authority. As per the provisions of 1989 act power to grant sanction to arrest public servant is not mentioned.
Also, National Commission for Scheduled Castes Annual Report 2015-16, has suggested for quick registration of FIRs.
The Commission has observed that there are instances of procedural lapses while dealing atrocity cases by both police as well as civil administration, also there are laches in the judicial scrutiny. The Commission, therefore, recognized loopholes during police investigation. NCSC suggested the correct and timely application of SC/ST (prevention of atrocities) Amendment Act, 2015 and Amendment Rules of 2016 as well as the following for the protection of oppressed class i.e. Registration of FIRs – The Commission has noticed that the police generally choose preliminary investigation on receiving a complaint in writing before filing an FIR. Consequently, the Schedule class victims have to take recourse of court for registering an FIRs under section 156(3) of Cr.P.C, which again defeats the purpose and object of the SC/ST Act, Furthermore, Supreme Court time and again stressed about registration of FIR first. This Commission again emphasized that Government should enforce immediate registration of FIRs.
The honorable court has also observed that SCs/STs are still struggling for equality and for enforcing their civil rights in many parts of the country. These people are still in fact discriminated against. Despite of reservation scheme in the constitution, the fruits of development have not reached to them, to a large extent; they are left unequal and vulnerable in the society even after incorporation of laws in favor of them. The classes of Scheduled Castes and Scheduled Tribes have been suffering humiliation and exploitation, and they have been boycotted socially for the centuries. The efforts for their upliftment should have been drip down to eradicate their suffering.
Although, Article 17 of the Constitution clearly prohibits untouchability, but that doesn’t mean that it is abolished. The sorrow of untouchables is that they are still deprived of many civil rights, their condition is worst in the villages, remote areas where fruits of development have not been reached. They cannot enjoy civil rights which the other stratum of society does. As far as now, we have not been able to provide them modern methods of scavenging due to shortage of resources, proper planning and apathy.
Important to notice that there is no presumption that the people of the Scheduled Castes and Scheduled Tribes may abuse the provisions of law and the said law is not resorted by upper class members of the society. For filing a false report, it cannot be presumed that the caste of a person is the cause. Caste is not a factor attributable to the law. Quite the opposite, members of the Scheduled Castes and Scheduled Tribes does not have the courage to even report a crime under this Act, so there are more than less possibilities of act being abused or the false case being filed, But in any case the same is found it might be because of faulty investigation or for other reasons except caste factor. There may be cases which may be false, those cases can be definitely interfered by the Court, but the law cannot be changed because of possibility of such misuse that too on the basis of caste factor. In such a cases, of course court cannot ignore such abuse and it is supposed to be considered at the time of proceedings under section 483 of CrPC.
CASES
CITED BY THE COURT
In
Khadak Singh vs. State of Himachal Pradesh[2],
In this very case Supreme Court has observed
that the right to life does not mean a mere animal’s existence. The right to life under
Article 21 includes the right to live with human dignity. All the people
irrespective of his class be treated equal and not as downtrodden, inferior,
untouchable and they are not meant for serving upper class people. Caste is no
doubt one of the causes for discrimination and also it is so deep rooted that
it needs consistent efforts to eliminate it from the society.
Hinch Lal Tiwari v. Kamla
Devi[3] it was held that quality life is the essence
of Art 21.
In
People’s Union for Civil Liberties v. Union of India[4]
it was observed by this court that Gender injustice, pollution, environmental
degradation, malnutrition, social ostracism of Dalits are examples of human
rights violations.
In State of M.P. & Anr. v. Ram Kishna Balothia & Anr.[5] this Court has upheld the validity of section 18 of the Act of 1989 wherein the court observed that there is no doubt that section 438 of CrPC which is available to the accused in respect of IPC is not available under 1989 Act but can it be considered as violative of art 14? If we read the purpose of the act it is clear that it is enacted to forbid the practice of untouchability so section 438 of CrPC has to be interpreted in consonance with the act otherwise it could lead to dilusion of the purpose of act.
JUDGEMENT
(RATIO DECEDENDI)
Considering the provisions of section 18-A, the court with respect to preliminary inquiry for registration of FIR has recalled direction no. (iii) and (iv) issued in the Subhash Kashinath’s case which were-
(iii)
In view of considering abuse of law of arrest in cases under the Atrocities
Act, arrest of a public servant can only be done after prior approval of the
appointing authority and of a non-public servant after approval by the S.S.P.
which may be given in appropriate cases if considered necessary for reasons
recorded. Such reasons must be examined carefully by the Magistrate for
allowing further detention.[6]
(iv) To avoid false incrimination of an innocent, a preliminary enquiry should be conducted by the DSP to figure out whether the allegations made in a case under the Atrocities Act are genuine or not.[7]
Now
these directions are modified in the sense that a preliminary inquiry is
permissible only as per the law laid down by constitution bench in lalita
kumara v union of India[8]
and the amendment of 2018 which inserted section 18-A have to be interpreted
accordingly.
Keeping in mind the applicability of provisions of section 438 Cr.PC, anticipatory bail should not be granted under the cases of the prevention of atrocities act 1989. Nevertheless, if the complaint does not show a prima facie case for applicability of the provisions of the Act of 1989, the bar created by sections 18 and 18A (i) shall not apply. The court in rare cases exercises its power under section 482 of Cr.PC for quashing the cases to prevent abuse of provisions.
S.
RAVINDRA BHAT, J. (CONCURRING OPINION)
This Judgement is in agreement with justice Arun Mishra, in his concurring opinion he added lines supplementing the above opinion of justice Mishra wherein he has stressed upon considering application seeking anticipatory bail ,the Courts has to harmonize the two interests i.e. that the power is not used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that should be used cautiously and in rare cases and such orders made in very exceptional cases where no prima facie offence under 1989 act is made out as shown in the FIR, and on the other hand if such orders are not made in genuine cases then it would be resulting to the miscarriage of justice to these class of people. So he considered on strict terms the concept of anticipatory bail as an essential part of liberty but giving frequent orders will somehow defeat the intention of the legislature[9]
ANALYSIS
I would like to mention the legal understanding behind the concept of anticipatory bail first. For understanding the whole concept on which the judgement is based, we need to go through some clarifications like why section 438 of Cr.P.C is inculcated in the criminal jurisprudence and what was its objective.
Anticipatory Bail became part of the Cr.P.C in 1973 after the recommendation of the 41st Law Commission Report (1969) which very first time suggested the incorporation of such provision so that to protect the arbitrary arrest which is a clear violation of the right to personal liberty of the person.
RESONS
FOR BRINGING SECTION 438 UNDER CRPC
Sometimes persons who are influential in society tries to incriminate their rivals in false cases for the purpose of disgracing them or for the purpose of humiliating them by getting them detained in jail.
As arbitrary arrest is a way to harassment and humiliation of citizens and a continued pervasive phenomenon in the country, consequently, the protection to people should be given. And this was the underlying reason for the inculcating Sec. 438 in the Cr.P.C, which even received Parliamentary acceptance as India is the country where democracy and freedom are crucial for personal liberty.
The
essence of anticipatory bail is well summarized by of Y.V. Chandrachud C.J, who
observed as: A person who has yet to lose his freedom by being arrested asks
for freedom in the event of arrest. That is the stage at which it is imperative
to protect his freedom so to give full play to the presumption that he is
innocent.[10]
The
Law Commission in its 41st report mentioned:
The
need of anticipatory bail arises mainly due to the influential people of the
society who tries to implicate their rivals in a fraud case for the purpose of
degrading and humiliating them, which consequently destroys the dignity and
reputation of these people.[11]
Having said that, the legal backing regarding the insertion of Section 438 is quite clear and the provision gives the right to an accused person to file for pre-arrest bail before session court or high court as the case may be. It was also declared as a part of liberty that cannot be taken away arbitrarily and there must be some safeguards for the people against whom fraud cases are registered. There ought to be a balance for both parties otherwise one can dominate over other by filing false reports. If no prima facie case is made out then accused should be granted anticipatory bail because that is a part of his liberty.
In addition to what is been said above I would like to discuss some natural justice principles which we have followed time and again.
Audi Alterem Partum
– The principle says that no person can be punished without being heard. This being
the part of Indian jurisprudence has been followed many times by courts and
should be continued because we get these principles by the nature itself. As we
have gone through the Judgment wherein court has declared 2018 amendment valid
which restricted the right of anticipatory bail which is clear infringement of
the liberty and freedom of a person.
Innocent until proven guilty– As we abide by adversarial system in our legal
procedure which says judges should hear both the parties and accused is
presumed to be innocent until his guilt is proven beyond reasonable doubt so, a
person if arrested where there is a fraud allegations against him, he should be
given at least benefit of doubt so that an anticipatory bail can be granted
followed by the trial and proceedings. if any time an FIR is being registered ,
then police authorities first conduct a preliminary inquiry so that to know
whether any prima facie case is made or not and then the arrest can be done
otherwise an arbitrary arrest will impinge upon the liberty of a person and
also harms his reputation.
Bail
is the rule and jail is the exception
It
has been held in so many cases that bail is a matter of right in cognizable offences
and it is the rule and jail is an always an exception. In a landmark judgment
of supreme court in State of Rajasthan V. Balchand alias Baliay[12] V
Krishnaiyer while authoring his judgement held that ‘Bail
is the rule and Jail is an Exception’
Furthermore,
Arnesh Kumar V. State of Bihar[13]
needed mention here because in this case Supreme Court imposed some checks on
the power of police authorities to arrest. The court has directed all the State
Governments to direct the executives not to arrest an accused without
investigating the facts and circumstances of the case, and also directed to
conduct preliminary inquiry before arrest is made so that the personal liberty
of a person is not hampered in any case.
CONCLUSION
I must say that arbitrary arrest is antithesis to freedom and liberty of a person. More precisely, if we insist on arrest made under SC/ST Act 1989, the offences are cognizable and a right to get bail is sustainable, the directions earlier made out in Subhash Mahajan case were safeguards against the misuses of this act and those guidelines were checks and balances for those who tries to humiliate an innocent person. The Supreme Court in the present judgment considered LalitaKumari guidelines which is a good decision and appreciated well. Coming to the validity of Section 18-A, which was challenged through a writ petition, being upheld and court has declared the section valid which in my opinion is restrictive of right to apply for anticipatory bail and it is a violation of fundamental right where liberty of a person is infringed. By upholding the validity of section 18-A Supreme Court has overruled its own decision where safeguards were laid down. And I must say the safeguards laid down in Subhash Mahajan case were justified as those were imposed keeping in mind the prevention of abuse of SC/ST Act 1989 and insertion of section 18-A prohibited anticipatory bails under the act can be used by some influential persons to incriminate innocent people by lodging a false FIR. So, in my view the right to apply for anticipatory bail must sustain and law should be modified in the sense that genuine arrest be made and not the false one, this is what the purpose of act is.
*The Author is a student of LL.M at Faculty of Law, Delhi University.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the Author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code
Saurabh Kumar
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Author- Prachi Pareek**
CASE NO. – WP(C) 1015/2018
DATE – 10 February 2020
COURT– Supreme Court of India
BENCH– Arun Mishra, Vineet Saran, S. Ravindra Bhat
INTRODUCTION
The present case law is dealing with the challenge upon insertion of section 18- A in the prevention of atrocities act 1989, which has been amended by parliament in 2018. This case is an initiative with a writ petition before Supreme Court challenging section 18-A on the ground that the same was inserted to nullify the supreme court guidelines framed in Subhash Kashinath Mahajan v. State of Maharashtra & Anr[1] At the very first instance, Division Bench has heard the matter but later on referred to 3 judge bench headed by Arun Mishra, Vineet Saran, S. Ravindra Bhat. The Supreme court in the present case upheld the validity of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act,2018 which inserted section 18-A.
BACKGROUND OF THE CASE
In Subhash Kashinath Mahajan v. State of Maharashtra & Anr (2018) Supreme Court passed some safeguards to prevent the misuse of protection given to SC/ST people through SC/ST Act, 1989.
Guidelines are as follows-
After this judgment, there was hue and cry among Dalits and scheduled castes people and they condemned these very safeguards, then in the month of August parliament overturned the guidelines by introducing an amendment named prevention of atrocities act 2018 which inserted section 18-A in the act wherein it was mentioned that no preliminary enquiry is needed under this act when there is an offence, also anticipatory bail is not available to the offender. In short, this amendment diluted the effect of safeguards given in Kashinath Mahajan case. This was further challenged in the honorable Supreme Court through a writ petition.
CONTENTIONS OF PETITIONERS
CONTENTIONS OF RESPONDENT
OBSERVATIONS OF SUPREME COURT (Arun Mishra ,Vineet Saran)
CASES CITED BY THE COURT
In Khadak Singh vs. State of Himachal Pradesh [2], In this very case Supreme Court has observed that the right to life does not mean a mere animal’s existence. The right to life under Article 21 includes the right to live with human dignity. All the people irrespective of his class be treated equal and not as downtrodden, inferior, untouchable and they are not meant for serving upper class people. Caste is no doubt one of the causes for discrimination and also it is so deep rooted that it needs consistent efforts to eliminate it from the society.
Hinch Lal Tiwari v. Kamla Devi[3] it was held that quality life is the essence of Art 21.
In People’s Union for Civil Liberties v. Union of India[4] it was observed by this court that Gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits are examples of human rights violations.
In State of M.P. & Anr. v. Ram Kishna Balothia & Anr.[5] this Court has upheld the validity of section 18 of the Act of 1989 wherein the court observed that there is no doubt that section 438 of CrPC which is available to the accused in respect of IPC is not available under 1989 Act but can it be considered as violative of art 14? If we read the purpose of the act it is clear that it is enacted to forbid the practice of untouchability so section 438 of CrPC has to be interpreted in consonance with the act otherwise it could lead to dilusion of the purpose of act.
JUDGEMENT (RATIO DECEDENDI)
Considering the provisions of section 18-A, the court with respect to preliminary inquiry for registration of FIR has recalled direction no. (iii) and (iv) issued in the Subhash Kashinath’s case which were-
(iii) In view of considering abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be done after prior approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be given in appropriate cases if considered necessary for reasons recorded. Such reasons must be examined carefully by the Magistrate for allowing further detention.[6]
(iv) To avoid false incrimination of an innocent, a preliminary enquiry should be conducted by the DSP to figure out whether the allegations made in a case under the Atrocities Act are genuine or not.[7]
Now these directions are modified in the sense that a preliminary inquiry is permissible only as per the law laid down by constitution bench in lalita kumara v union of India[8] and the amendment of 2018 which inserted section 18-A have to be interpreted accordingly.
Keeping in mind the applicability of provisions of section 438 Cr.PC, anticipatory bail should not be granted under the cases of the prevention of atrocities act 1989. Nevertheless, if the complaint does not show a prima facie case for applicability of the provisions of the Act of 1989, the bar created by sections 18 and 18A (i) shall not apply. The court in rare cases exercises its power under section 482 of Cr.PC for quashing the cases to prevent abuse of provisions.
S. RAVINDRA BHAT, J. (CONCURRING OPINION)
This Judgement is in agreement with justice Arun Mishra, in his concurring opinion he added lines supplementing the above opinion of justice Mishra wherein he has stressed upon considering application seeking anticipatory bail ,the Courts has to harmonize the two interests i.e. that the power is not used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that should be used cautiously and in rare cases and such orders made in very exceptional cases where no prima facie offence under 1989 act is made out as shown in the FIR, and on the other hand if such orders are not made in genuine cases then it would be resulting to the miscarriage of justice to these class of people. So he considered on strict terms the concept of anticipatory bail as an essential part of liberty but giving frequent orders will somehow defeat the intention of the legislature[9]
ANALYSIS
I would like to mention the legal understanding behind the concept of anticipatory bail first. For understanding the whole concept on which the judgement is based, we need to go through some clarifications like why section 438 of Cr.P.C is inculcated in the criminal jurisprudence and what was its objective.
Anticipatory Bail became part of the Cr.P.C in 1973 after the recommendation of the 41st Law Commission Report (1969) which very first time suggested the incorporation of such provision so that to protect the arbitrary arrest which is a clear violation of the right to personal liberty of the person.
RESONS FOR BRINGING SECTION 438 UNDER CRPC
The essence of anticipatory bail is well summarized by of Y.V. Chandrachud C.J, who observed as: A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom so to give full play to the presumption that he is innocent.[10]
The Law Commission in its 41st report mentioned:
The need of anticipatory bail arises mainly due to the influential people of the society who tries to implicate their rivals in a fraud case for the purpose of degrading and humiliating them, which consequently destroys the dignity and reputation of these people.[11]
Having said that, the legal backing regarding the insertion of Section 438 is quite clear and the provision gives the right to an accused person to file for pre-arrest bail before session court or high court as the case may be. It was also declared as a part of liberty that cannot be taken away arbitrarily and there must be some safeguards for the people against whom fraud cases are registered. There ought to be a balance for both parties otherwise one can dominate over other by filing false reports. If no prima facie case is made out then accused should be granted anticipatory bail because that is a part of his liberty.
In addition to what is been said above I would like to discuss some natural justice principles which we have followed time and again.
Bail is the rule and jail is the exception
It has been held in so many cases that bail is a matter of right in cognizable offences and it is the rule and jail is an always an exception. In a landmark judgment of supreme court in State of Rajasthan V. Balchand alias Baliay[12] V Krishnaiyer while authoring his judgement held that ‘Bail is the rule and Jail is an Exception’
Furthermore, Arnesh Kumar V. State of Bihar[13] needed mention here because in this case Supreme Court imposed some checks on the power of police authorities to arrest. The court has directed all the State Governments to direct the executives not to arrest an accused without investigating the facts and circumstances of the case, and also directed to conduct preliminary inquiry before arrest is made so that the personal liberty of a person is not hampered in any case.
CONCLUSION
I must say that arbitrary arrest is antithesis to freedom and liberty of a person. More precisely, if we insist on arrest made under SC/ST Act 1989, the offences are cognizable and a right to get bail is sustainable, the directions earlier made out in Subhash Mahajan case were safeguards against the misuses of this act and those guidelines were checks and balances for those who tries to humiliate an innocent person. The Supreme Court in the present judgment considered LalitaKumari guidelines which is a good decision and appreciated well. Coming to the validity of Section 18-A, which was challenged through a writ petition, being upheld and court has declared the section valid which in my opinion is restrictive of right to apply for anticipatory bail and it is a violation of fundamental right where liberty of a person is infringed. By upholding the validity of section 18-A Supreme Court has overruled its own decision where safeguards were laid down. And I must say the safeguards laid down in Subhash Mahajan case were justified as those were imposed keeping in mind the prevention of abuse of SC/ST Act 1989 and insertion of section 18-A prohibited anticipatory bails under the act can be used by some influential persons to incriminate innocent people by lodging a false FIR. So, in my view the right to apply for anticipatory bail must sustain and law should be modified in the sense that genuine arrest be made and not the false one, this is what the purpose of act is.
*The Author is a student of LL.M at Faculty of Law, Delhi University.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the Author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code
[1] (2018) 6 SCC 454
[2] AIR 1963 SC 1295
[3] (2001) 6 SCC 496
[4] (2005) 2 SCC 436
[5] (1995) 3 SCC 221
[6] https://www.livelaw.in/pdf_upload/pdf_upload-370065.pdf
[7] Ibid.
[8] (2014) 2 SCC 1
[9] https://www.livelaw.in/pdf_upload/pdf_upload-370065.pdf
[10] https://www.legalserviceindia.com/legal/article-6112-anticipatory-bail-section-438-crpc.html, accessed on 12/03/2022
[11] Ibid.
[12] 1977 AIR 2447, 1978 SCR (1) 535
[13] (2014) 8 SCC 273
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