Dr. Subhash Kashinath Mahajan Vs The State of Maharashtra and ANR. [MARCH 20, 2018]
2018 Latest Caselaw 191 SC

Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and ANR.

[Criminal Appeal No.416 of 2018 arising out of Special Leave Petition (CRL.) No.5661 of 2017]

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against the order dated 5th May, 2017 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 1 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 be acted upon, the proceedings can result in arrest or prosecution of the person and have serious consequences on his right to liberty even on a false complaint which may not be intended by law meant for protection of a bona fide victim.

The question is whether this will be just and fair procedure under Article 21 of the Constitution of India or there can be procedural safeguards so that provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not abused for extraneous considerations. Issue notice returnable on 10th January, 2018. In the meanwhile, there shall be stay of further proceedings. Issue notice to Attorney General of India also as the issue involves interpretation of a central statute. Mr. Amrendra Sharan, learned senior counsel is requested to assist the Court as amicus. Mr. Sharan will be at liberty to have assistance of Mr. Amit Anand Tiwari, Advocate. ... ..."

3. Though certain facts are stated while framing the question already noted, some more facts may be noted. The appellant 2 herein is the original accused in the case registered at City Police Station, Karad for the offences punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as also Sections 182, 192, 193, 203 and 219 read with 34 of the Indian Penal Code, 1860 (IPC). He was serving as Director of Technical Education in the State of Maharashtra at the relevant time.

4. The second respondent - the complainant is an employee of the department. He was earlier employed as a Store Keeper in the Government College of Pharmacy, Karad. He was later posted at Government Distance Education Institute, Pune. Dr. Satish Bhise and Dr. Kishor Burade, who were his seniors but nonscheduled caste, made adverse entry in his annual confidential report to the effect that his integrity and character was not good. He lodged FIR with Karad Police Station against the said two officers under the Atrocities Act on 4th January, 2006 on that ground.

The concerned Investigating Officer applied for sanction under Section 197 Cr.P.C. against them to the Director of Technical Education on 21st December, 2010. The sanction was refused by the appellant on 20th January, 2011. Because of this, 'C' Summary Report was filed against Bhise and 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 u/s 3(1)9, 3(2)(7)6 of S.C. & S.T. (Preention of Atrocities) Act and the investigation was done by Shri Bharat Tangade, then D.Y.S.P. Karad division Karad in the investigation

1) Satish Balkrushna Bhise, then Principal Pharmacy College Karad,

2) Kishor Balkrishna Burade, then Professor, Pharmacy College Karad has been realized as accused in the present crime. Investigation officer collect sufficient evidence against both the accused, but both the accused are from Govt. Technical Education department Class 1 Public Servant, so before filing charge sheet against them he wrote the letter to the senior office of the accused u/s 197 of Cr.P.C. to take the permission at that time Mr. Subhash Kashinath Mahajan was working as incharge director of the office. Today also he is working as same post.

Mr. Mahajan does not belongs to S.C. & S.T. but he knew that I belongs to S.C. and S.T. In fact both the accused involved in crime No. 3122/09 are working on class 1 post and to file a charge sheet against them the permission has to be taken according to Cr.P.C. Section 197. This fact known to Shri Mahajan and Mr. Mahajan knew that this office did not have such right to give permission.

So Mr. Mahajan send letter to Mumbai Office. Infact to give the required permission or to refuse the permission is not comes under the jurisdiction of incharge direction, Technical Education Mumbai. But, Mr. Mahajan misused his powers so that, accused may be benefited, he took the decision and refused the permission to file the charge sheet against the accused. So that, investigation officer Shri Bharat Tangade fails to submit the charge sheet against the both the accused, but he complain to submit 'C' summary report."

6. The appellant, after he was granted anticipatory bail, applied to the High Court under Section 482 Cr.P.C. for quashing the proceedings on the ground that he had merely passed a bonafide administrative order in his official capacity. His action in doing so cannot amount to an offence, even if the order was erroneous. The High Court rejected the petition.

7. Dealing with the contention that if such cases are not quashed, recording of genuine adverse remarks against an employee who is a member of SC/ST or passing a legitimate administrative order in discharge of official duties will become difficult and jeopardise the administration, the High Court observed that no public servant or reviewing authority need to apprehend any action by way of false or frivolous prosecution but the penal provisions of the Atrocities Act could not be faulted merely because of possibility of abuse. It was observed that in the facts and circumstances, inherent power to quash could not be exercised as it may send a wrong signal to the downtrodden and backward sections of the society.

8. We have heard Shri Amrendra Sharan, learned 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:

Provisions of the SC/ST Act invoked in this case

Applicability of the provisions in the facts of the case

3. Punishment for offences atrocities. - 3 [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(ix): gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;

The provision mandates a "false and frivolous information given by the public servant", however in the present case, the Petitioner has denied sanction for prosecution which clearly does not amount to false or frivolous information. Thus, a case under Section 3(1)(ix) of the SC/ST Act is not made out.

3(2)(vi): knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence;

Section 3(2)(vi) requires causing of disappearance of evidence with the intention of screening the offender from legal punishment, however, in the present case, there is no allegation that the petitioner has caused disappearance of any evidence. Therefore the ingredients of Sections 3(2)(vi) is not made out.

(vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.

Since no offence under section 3 of the SCST is made out this section cannot be attracted.

Provisions of IPC alleged

Applicability of the provisions in the facts of instant case

182. False information, with intent to cause public servant to use his lawful power to the injury of another person. - Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant -

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

A false information is an information which has been given deliberately with an intention to deceive.

However, in this case denial of sanction for prosecution cannot be construed as a false information in any way. It is an order of administrative authority. Therefore no case is made out under Section 182 of the code.

192. Fabricating false evidence. - whoever causes any circumstance to exist or *[makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence".

The ingredients of Section 192 IPC is not made out therefore this section will not apply in the present case. It was not a judicial proceeding and the petitioner has neither fabricated false evidence nor made any false entry in any book, record or electronic data.

Mere exercising of administrative power cannot be construed as fabricating false evidence.

193. Punishment for false evidence. - Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, an shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable.

Since there was no 'false evidence', therefore the possibility of punishment accruing to false evidence is ruled out.

203. Giving false information respecting an offence committed.

- Whoever knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

For the reasons already stated hereinabove, the present case does not meet the ingredients of this section, therefore is precluded from being prosecuted here. A mere opinion of a senior officer in an ACR does not amount to giving false information.

219. Public servant in judicial proceeding corruptly making report, etc., contrary to law. -

Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

The denial of sanction to prosecute the two government servants against whom the Complainant/ Respondent no. 2 had originally filed an FIR cannot be construed as making corrupt report therefore the case of the petitioner does not fall within the ambit of this provision.

11. It was submitted by learned amicus that FIR was lodged after five years of the order passed by the appellant. The order was passed on 20th January, 2011 while the FIR was lodged on 28th March, 2016 which further strengthened the case for quashing in addition to the facts and legal contentions noted in the previous para. Moreover, in absence of any allegation of malafides, even if order passed by the appellant was erroneous proceedings against him are not called for.

12. Learned amicus submitted that under the scheme of the Atrocities Act, several offences may solely depend upon the version of the complainant which may not be found to be true. There may not be any other tangible material. One sided version, before trial, cannot displace the presumption of innocence. Such version may at times be self serving and for extraneous reason. Jeopardising liberty of a person on an untried unilateral version, without any verification or tangible material, is against the fundamental rights guaranteed under the Constitution.

Before liberty of a person is taken away, there has to be fair, reasonable and just procedure. Referring to Section 41(1)(b) Cr.P.C. it was submitted that arrest could be effected only if there was 'credible' information and only if the police officer had 'reason to believe' that the offence had been committed and that such arrest was necessary. Thus, the power of arrest should be exercised only after complying with the safeguards intended under Sections 41 and 41A Cr.P.C. It was submitted that the expression 'reason to believe' in Section 41 Cr.P.C. had to be read in the light of Section 26 IPC and judgments interpreting the said expression.

The said expression was not at par with suspicion. Reference has been made in this regard to Joti Prasad versus State of Haryana1, Badan Singh @ Baddo versus State of U.P. & Ors.2, Adri Dharan Das versus State of West Bengal3, Tata Chemicals Ltd. versus Commissioner of Customs4 and Ganga Saran & Sons Pvt. Ltd. versus Income Tax Officer & Ors.5 In the present context, to balance the right of liberty of the accused guaranteed under Article 21, which could be taken away only by just fair and reasonable procedure and to check abuse of power by police and injustice to a citizen, exercise of right of arrest was required to be suitably regulated by way of guidelines by this Court under Article 32 read with Article 141 of the Constitution. Some filters were required to be incorporated to meet the mandate of Articles 14 and 21 to strengthen the rule of law.

13. Learned amicus submitted that this Court has generally acknowledged the misuse of power of arrest and directed that arrest should not be mechanical. 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 versus State of U.P. 6, M.C. Abraham versus State of Maharashtra7,

D. Venkatasubramaniam versus M. K. Mohan Krishnamachari8, Arnesh Kumar versus State of Bihar 9 and Rini Johar & Ors. versus State of M.P. & Ors.

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, the Magistrate must pass a speaking order as to correctness or otherwise of the reasons for which arrest is effected. These requirements will enforce right of concerned citizens under Articles 14 and 21 without in any manner affecting genuine objects of the Act.

15. Learned amicus further submitted that Section 18 of the Atrocities Act, which excludes Section 438 Cr.P.C. , violates constitutional mandate under Articles 14 and 21 and is ultra vires 13 the Constitution. The said provision was upheld in State of M.P. versus Ram Krishna Balothia11 but the said judgment was in ignorance of the Constitution Bench judgment in Gurbaksh Singh Sibbia etc. versus State of Punjab12.

If a Court is not debarred from granting anticipatory bail even in most heinous offences including murder, rape, dacoity, robbery, NDPS, sedition etc., which are punishable with longer periods depending upon parameters for grant of anticipatory bail, taking away such power in respect of offences under the Act is discriminatory and violative of Article 14. Exclusion of court's jurisdiction, even where the court is satisfied that arrest of a person was not called for, has no nexus with the object of the Atrocities Act. In this regard, reliance has been placed on following observations in Sibbia (supra).

"10. Shri V.M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said that since the denial of bail amounts to deprivation of personal liberty, courts should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that section. The learned Counsel added a new dimension to the argument by invoking Article 21 of the Constitution. He urged that Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must therefore be presumed to be innocent.

The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violative of Article 21. Therefore, 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 section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 15 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.

The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein."

16. Reliance has also placed on recent judgment of this Court in Nikesh Tarachand Shah versus Union of India and Anr.13 declaring Section 45 of the Prevention of Money Laundering Act, 2002 unconstitutional. This Court held that fetters on grant of bail under the said provision when such fetters were not applicable to other offences punishable in like manners was discriminatory and against the principle of fair just and reasonable procedure.

Submissions of counsel for intervenor supporting the appeal

17. Ms. Manisha T. Karia, counsel appearing for intervenor on behalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be victim of a false complaint, submitted that respondent No. 2 lodged a false FIR No. 3210 of 2017 dated 2nd November, 2017 against her at Khadki police station alleging that she, in collusion with the appellant herein, pressurized respondent no. 2 to withdraw the FIR No.164 of 2016 registered with Karad Police Station and she falsely implicated respondent no. 2 in a sexual harassment case. She is working as an Assistant Professor in the Department of Instrumentation and Control in College of Engineering, Pune since last eight years where respondent No. 2 was 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 Cr.P.C. 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 Tribes (Prevention of Atrocities) Amendment Bill, 2014 rejecting the stand of the Ministry to the effect that there was no need to provide for action against false or malafide implication under the Atrocities Act. It was observed therein:- "3.9 The Committee are not inclined to accept the contention of the Ministry that those who are found to be misusing the provisions of the Act can be tried as per normal law of the land under the relevant sections of the IPC.

The Committee are of the firm view that the PoA Act, being a special law, should be wholesome to the extent that it must contain an inbuilt provision for securing justice for those too who are falsely implicated with mala fide under it. More so, when the law makers have shown such perspicacity in addressing such issues/misgivings when they inserted 18 clause 14 (Punishment for false or malicious complaint and false evidence) in 'The Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013."

19. Thus, unless this Court laid down appropriate guidelines, there will be no protection available against arbitrary arrests or false implications in violation of Article 21 of the Constitution. The intervenor submitted that preliminary enquiry must be held before arrest with regard to the following factors:

"a. Date and time of the incident and provocation.

b. Preexisting dispute between the parties or rivalry.

c. Gravity of the issue involved.

d. Nature of allegations by both the parties.

e. Necessary documents and evidence by the victim and accused to substantiate their case to be placed before committee.

f. The proceedings may be recorded to avoid allegations of bias and non-transparency."

20. The following further safeguards have been suggested by the counsel for the intervenor: "Arrest specifically in connection with offences under POA Act should only be made with the prior sanction of the Magistrate. However this may not apply in case arrest has to be made in connection with other offences under IPC. Further the gravity of offence also needs to be seen since most of the cases at the institutional level are only on the basis of mere altercations or action by the public servants in their official capacity. Secondly if the Accused under the POA Act surrenders with prior notice to the Public Prosecutor, then his bail Application should 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 versus State14 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 14 2004 SCC OnLine Mad 922: 2004 CriLJ2755 20 is for the authorities to guard against such misuse of power conferred on them."

(ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs. State of Gujarat15 observing : "But then having closely examined the complaint more particularly in the context and light of the backdrop of the peculiar facts situation highlighted by the petitioner leading ultimately to filing of the complaint, this Court prime facie at the very outset is at some doubt about the complainant's story and yet if it readily, mechanically like a gullible child accepts the allegations made in the complaint at its face value, it would be surely blundering and wandering away from the path of bail-justice, making itself readily available in the hands of the scheming complainant who on mere asking will get arrested accused on some false allegations of having committed non-bailable offence, under the Atrocity Act, meaning thereby the Court rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary prudence with no perception for justice, denying the rightful protection to the accused becoming ready pawn pliable in the hands of sometime scheming, unscrupulous complainants !!!

This sort of a surrender to prima facie doubtful allegation in the complaint is not at all a judicial approach, if not unjudicial !! At the cost of repetition, 1 make it clear that these observations are only preliminary, at this stage only in peculiar background of the case highlighted by petitioner-accused and for that purpose may be even in future be so highlighted by the accused in some other cases to the satisfaction of the Court !

The reason is having regard to the basic cardinal tenets of the criminal jurisprudence more particularly in view of the peculiar circumstances highlighted by the accused which allegedly actuated complainant to victimise him, in case if ultimately at the end of trial what the accused has submitted in defence is accepted as probable or true and as a result, the accused is given a clean bill, holding that the complaint was nothing else but false, concoction by way of spite to wreck the personal vengeance then in that case what indeed would be the remedy and redresses in the hands of the petitioner, who in the instant case is Doctor by profession and for that purpose in other cases an innocent citizen? He stands not only stigmatised by filing of a false complaint against him but he shall 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 itself to sometimes prima facie ex-facie malicious complaint denying simple bail to the accused?

In this regard, perhaps, it may be idly said that accused can be given compensation for the malicious prosecution and ultimate refusal of bail or anticipatory bail !! True, but then in that case what compensation can any Court would be in a position to give when the complainant is a person who is poor enough unable to pay a single pie?!!

Not only that but in case complainant is rich and able to pay compensation then even can any monetary compensation ever adequately compensate the wrong accused suffered at the hands of the malicious complainant? It is here that the conscience of this Court stands pricked and terribly perturbed and indeed will have a sleepless night if what ought we do not know where the petitioner, in the facts and circumstances of the case be quite innocent and accordingly a needy consumer of bail justice and yet is unnecessarily subjected to arrest taken to the police custody and then before Court because of denial of bail to him at this stage !!"

(iii) Dealing with the same issue, the Gujarat High Court in Dhiren Prafulbhai Shah versus State of Gujarat16 observed as under:

"48. In the course of my present sitting, I have come across various cases wherein the provisions of Atrocities Act are misused. I find that various complaints are filed immediately after elections, be it Panchayat, Municipal or Corporation, alleging offence under the Atrocities Act. I have no hesitation in saying that in most of the cases, it was found that the F.I.R.s/Complaints were filed only to settle the score with their opponents after defeat in the elections. I have also come across various cases, wherein, private civil disputes arising out of property, monetary 16 2016 CriLJ 2217 23 matters, dispute between an employee and employer, dispute between the subordinate and his superior - are given penal and the complaints are being filed either under Section 190 r/w. 200 or F.I.Rs. at the police station. The matter in hand is one another example of misuse of the Act. As observed by me earlier, the purpose of bringing SC and 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 like the case one in hand, which is alien 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 Cr.P.C. on the ground that he is innocent and has been falsely involved, but if a person alleged to have committed an offence under the Atrocities Act, cannot pray for an anticipatory bail because of the bar of Section-18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provisions of the Atrocities Act."

(iv) Judgment of Gujarat High Court in Pankaj D Suthar versus State of Gujarat17 observing :

"4. ...But then, what according to this Court is the most welcome step by way of collective wisdom of the Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreak some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are-Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent?

The very same fundamental question arises in the facts and circumstances of this case also, viz., 'whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?' The answer to this question is undoubtedly and obviously 'No'. Under such circumstances, if the Courts are to apply such provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinising and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice.

Virtually, it would be tantamount to abdicating and relegating its judicial duty, function of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own 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 versus State of Maharashtra18 observing:

"12. We hasten to add that such type of complaints for rampant misuse of the provisions of Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, are largely being filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests. We think the learned Members of the Bar have enormous social responsibility and obligation 18 2015(4) BomCR(Crl) 545 26 to ensure that the social fabric of the society is not damaged or ruined.

They must ensure that exaggerated versions should not be reflected in the criminal complaints having the outrageous effect of independence of judicial and quasi judicial authorities so also the public servants. We cannot tolerate putting them in a spooked, chagrined and fearful state while performing their public duties and functions. We also think that a serious re-look at the provisions of the Act of 1989 which are being now largely misused is warranted by the Legislature, of course, on the basis of pragmatic realities and public opinion. A copy of this Judgment is directed to be sent to the Law Commission for information."

22. It was, thus, submitted that above judgments are merely illustrations to show that the abuse of law was rampant. If mere accusations are treated as sufficient, it may unfairly damage the personal and professional reputation of a citizen. There is a need to balance the societal interest and peace on the one hand and the protection of rights of victims of such false allegations on the other. If allegations are against an employee, a committee should be formed in every department as follows:-

"i. The employer or Head of every institution may be directed to constitute an internal committee to look into the matters and specific grievances related to atrocities committed on the members of SC/ST. ..............

ii. That before proceeding to lodge any FIR or criminal complaint, a written complaint should made to the internal committee of the institution along with supportive evidence.

iii. Such committee may be given the power to conduct a preliminary inquiry into the matter by hearing both the parties and other evidence, so as to ascertain the existence of a prima facie case under the POA Act."

23. It has been further suggested that Magistrate must verify the averments in a Complaint/FIR to ascertain whether a prima facie case is made out and whether arrest was necessary and only then arrest should be made or continued.

24. It is further submitted by the counsel for the intervenor that the Atrocities Act is also prone to misuse on account of monetary incentive being available merely for lodging a case under Rule 12(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Such incentive may encourage not only 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, Zill Parishad Adhyaksha, Gramsevak, Talathi, B.D.O., Collector, Palakmantri, Chief Minister, Home Minister, IPS, IAS, IRS, IFS, MNP Commissioner, MNP Assistant Commissioner, other Government Officer/Servant, other non- Government Officers/Servants (numeric data prepared on the basis of information available).

26. As per data (Crime in India 2016 - Statistics) compiled by the National Crime Records Bureau, Ministry of Home Affairs under the headings "Police Disposal of Crime/Atrocities against SCs cases (State/UT-wise)-2016" (Table 7A.4) and "Police Disposal of Crime/Atrocities against STs Cases (State/UTwise) - 2016" (Table 7C.4) it is mentioned that in the year 2016, 29 5347 cases were found to be false cases out of the investigated out of SC cases and 912 were found to be false cases out of ST cases.

It was pointed out that in the year 2015, out of 15638 cases decided by the courts, 11024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4119 cases resulted in conviction. (Reference: Annual Report 2016-2017 published by the Department of Social Justice & Empowerment, Ministry of Social Justice and Empowerment, Government of India).

Interventions against the appellant

27. Intervention application has also been filed by one Ananda Sakharam Jadhav who claims to be convenor of the Bahujan Karmachari Kalyan Sangh. Shri C.U. Singh, learned senior counsel appearing for the said intervenor, submitted that where law is clear no guideline should be issued by the Court. Reliance has been placed on State of Jharkhand and Anr. Versus Govind Singh19 and Rohitash Kumar and Ors versus Om Prakash Sharma and Ors.20 It was submitted that this Court could not lay down guidelines in the nature of legislation.

28. Shri C.U. Singh submitted that the Section 18 of the Atrocities Act has already been upheld in Balothia (supra) and Manju Devi versus Onkarjit Singh Ahluwalia21. He also relied upon Statement of Objects and Reasons of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2013 dated 14th July, 2014. Therein it is stated that there are procedural hurdles such as non-registration of cases, procedural delays in investigation, arrests and filing of charge-sheets and delays in trial and low conviction rate on account of which in spite of deterrent provisions, atrocities against SC/ST continues at disturbing level which necessitated amendment in the Act.

29. Further intervention has been sought by one Yogendra Mohan Harsh. Learned counsel for the said intervenor submitted that atrocities against SCs and STs are increasing and if submissions of amicus are to be accepted, the Act will be rendered ineffective and teethless. Submissions of learned Additional Solicitor General (ASG)

30. Learned ASG submitted that in view of decisions in Balothia (supra) and Manju Devi (supra) there is no occasion to go into the issue of validity of provisions of the Atrocities Act. He also submitted that decisions of this Court in Vilas Pandurang Pawar and Anr. versus State of Maharashtra and Ors.22 and Shakuntla Devi versus Baljinder Singh23 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 misuse of the Atrocities Act and a question was also raised in Parliament as to what punishment should be given against false cases. The reply given was that awarding punishment to members of SCs and STs for false implication would be against the spirit of the Act. A press statement dated 19th March, 2015 was issued by the Central Government to the effect that in case of false cases, relevant Sections of IPC can be invoked. It was submitted that no guideline should be laid down by this Court which may be legislative in nature. Consideration of the issue whether directions can be issued by this Court to protect fundamental right under Article 21 against uncalled for false implication and arrests

31. We may, at the outset, observe that jurisdiction of this Court to issue appropriate orders or directions for enforcement of fundamental rights is a basic feature of the Constitution. This Court, as the ultimate interpreter of the Constitution, has to 33 uphold the constitutional rights and values. Articles 14, 19 and 21 represent the foundational values which form the basis of the rule of law. Contents of the said rights have to be interpreted in a manner which enables the citizens to enjoy the said rights. Right to equality and life and liberty have to be protected against any unreasonable procedure, even if it is enacted by the legislature.

The substantive as well as procedural laws must conform to Articles 14 and 21. Any abrogation of the said rights has to be nullified by this Court by appropriate orders or directions. Power of the legislature has to be exercised consistent with the fundamental rights. Enforcement of a legislation has also to be consistent with the fundamental rights. Undoubtedly, this Court has jurisdiction to enforce the fundamental rights of life and liberty against any executive or legislative action. The expression 'procedure established by law' under Article 21 implies just, fair and reasonable procedure24.

32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is 24 Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 to 85 34 observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights25. 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 enacted26. Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute27. Power to declare law carries with it, within the limits of duty, to make law when none exists28.

33. Constitution Bench of this Court in Union of India versus Raghubir Singh29, observed : "7. ... It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior Courts.

"There was a time," observed Lord Reid, "When it was thought almost indecent to suggest that Judges make law - They only declare it.... But we do not believe in fairly tales any more." "The Judge as Law Maker", p. 22. In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the constitutional structure of the State, the role played by judicial law-making is limited. In the first place the function of the Courts is restricted to the interpretation of laws made by Parliament, and the Courts have no power to question the validity of Parliamentary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful.

In the second place, the law enunciated in every decision of the Courts in England can be superseded by an Act of Parliament. As Cockburn C.J. observed in Exp. Canon Selwyn (1872) 36 JP Jo 54: There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An act of the Legislature is superior in authority to any Court of Law. And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All ER 779 referred to a Parliamentary statute as "the highest form of law...which prevails over every other form of law." The position is substantially different under a written Constitution such as the one which governs us.

The Constitution of India, which represents the Supreme Law of the land, envisages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. Broadly, while Parliament and the State Legislature fin India enact the law and the Executive Government implements it, the judiciary sits in judgment not only on the implementation of the law by the Executive but also on the validity of the Legislation sought to be implemented One of the functions of the superior judiciary in India is to examine the competence and validity of legislation, both in point of legislative competence as well as its consistency with the Fundamental Rights.

In this regard, the Courts in India possess a power not known to the English Courts. Where a statute is declared invalid in India it cannot be reinstated unless constitutional sanction is obtained therefore by a constitutional amendment of an appropriately modified version of the statute is enacted which accords with constitutional 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 AIR1973SC1461), 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 versus State30 as follows: 30 (2011) 13 SCC 706 37 "62. Until the decision was rendered in Maneka Gandhi (supra), Article 21 was viewed by this Court as rarely embodying the Diceyian concept of rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example given by Justice S.R. Das in his judgment in A.K. Gopalan (supra) that if the law provided the Bishop of Rochester 'be boiled in oil' it would be valid under Article 21.

But after the decision in Maneka Gandhi (supra) which marks a watershed in the development of constitutional law in our country, this Court, for the first time, took the view that Article 21 affords protection not only against the executive action but also against the legislation which deprives a person of his life and personal liberty unless the law for deprivation is reasonable, just and fair. and it was held that the concept of reasonableness runs like a golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The procedure for depriving a person of his life and personal liberty must be eminently just, reasonable and fair and if challenged before the Court it is for the Court to determine whether such procedure is reasonable, just and fair and if the Court finds that it is not so, the Court will strike down the same."

35. Apart from the above, there are enumerable occasions when this Court has issued directions for enforcement of fundamental rights e.g., directions regarding functioning of caste scrutiny Committee31; directions to regulate appointment of law officers32; Madhuri Patil v. Tribal Development (1994) 6 SCC 241 32 State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1 38 directions to regulate powers of this Court and High Courts in designating Senior Advocates33; guidelines have been issued for the welfare of a child accompanying his/her mother in imprisonment34; directions for checking trafficking of women and children35; for night shelters for the homeless36; directions to check malnutrition in children37; directions to provide medical assistance by Government run hospitals38; directions for protection of human rights of prisoners39; directions for speedy trial of under trials40.

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 versus State of U.P.41, this Court observed that horizon of human rights is expanding. There are complaints of violation of human rights because of indiscriminate arrests. The law of arrest is of balancing individual rights, liberties and privileges, duties, obligations and responsibilities. On the one

side is the social need to check a crime, on the other there is social need for protection of liberty, oppression and abuse by the police and the other law enforcing agencies. This Court noted the 3rd Report of the National Police Commission to the effect that power of arrest was one of the chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arrest could be unjustified only in grave offences to inspire the confidence of the victim, to check the accused from committing further crime and to prevent him from absconding. The National Police Commission recommended that the police officer making arrest should record reasons. This Court observed that no arrest can be made merely because it is lawful to do so.

The exercise of power must be for a valid purpose. Except in heinous offences arrest must be avoided. This requirement was read into Article 2142. In Arnesh Kumar versus State of Bihar43, this Court observed that arrest brings humiliation, curtails freedom and casts scars forever. It is considered a tool for harassment and oppression. The drastic power is to be exercised with caution. Power of arrest is a lucrative source of corruption.

Referring to the amendment of law in Section 41 Cr.P.C. , in the light of recommendations of the Law Commissions, it was directed that arrest may be justified only if there is 'credible information' or 'reasonable suspicion' and if arrest was necessary to prevent further offence or for proper investigation or to check interference with the evidence. Reasons are required to be recorded. However, compliance on the ground is far from satisfactory for obvious reasons. The scrutiny by the Magistrates is also not adequate. This Court issued the following directions:

"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC ;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further 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 CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

37. In D.K. Basu versus State of W.B.44, this Court, to check abuse of arrest and drastic police power, directed as follows:

"35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person