AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (3) TMI 2005
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....erred 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 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 aga....
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....pellant 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 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....
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....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: 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 previo....
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....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 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 permissi....
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....reasonable 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....
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.... 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 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 w....
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....vel 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 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 betwe....
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.... 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 in....
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....se 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.....
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....nd 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 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....
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....hould 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, 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/Serva....
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....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. 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 ....
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....5. 32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is 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 rights Bandhua Mukti Morcha vs. UOI (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 D....
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....n 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 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 ....
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....dia (2017) 9 SCC 766; guidelines have been issued for the welfare of a child accompanying his/her mother in imprisonment R.D. Upadhyay versus State of A.P. (2007) 15 SCC 337; directions for checking trafficking of women and children Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1; for night shelters for the homeless Union for Civil Liberties versus UOI (2010)5 SCC 318; directions to check malnutrition in children People's Union for Civil 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 arre....
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....ves about the necessity for arrest under the parameters laid down above flowing from Section 41 Code of Criminal Procedure; 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 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....
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....graphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee 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 an....
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....s of reasonableness, this Court observed that ultimate impact of rights has to be determined. This was different from abuse or misuse of legislation. Proportionality of restraint has to be kept in mind while determining constitutionality. Concept of public interest and social interest determine the needs of the society Para 130. After referring to Maneka Gandhi (supra), it was observed that it is the duty of this Court to strike a balance in the right of speech and right to protect reputation Para 144. The restriction of law should be rational and connected to the purpose for which it is necessary. 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....
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.... Article 9 provides: 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10 says: 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." [As to its legal effect, see M. v. United Nations & Belgium (1972) 45 Inter LR 446 (Inter LR at pp. 447, 451.)] 86. According to the Report of the National Police Commission, when the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined Under Article 21 of the Constitution, then the courts need to take 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 ....
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.... from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw "no justification" to require a person to submit to custody, remain in prison for some days and then apply for bail even when there are reasonable grounds for holding that the person Accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this Court in Sibbia case (1980)2 SCC 565 and Joginder Kumar v. State of U.P. (1994)4 SCC 260. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (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'....
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.... record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available. Irrational and indiscriminate arrests are gross violation of human rights 115. In Joginder Kumar case (supra) a three-Judge Bench of this Court has referred to the 3rd Report of the National Police Commission, in which it is mentioned that the quality of arrests by the police in India mentioned the power of arrest as one of the chief sources of corruption 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....
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....ce of personal liberty vis-a-vis social interests. They must learn to maintain fine balance between the personal liberty and the social interests. 41. It is, thus, too late in the day to accept an objection that this Court may not issue any direction which may be perceived to be of legislative nature even if it is necessary to enforce fundamental rights Under Articles 14 and 21 of the Constitution. Further consideration of potential impact of working of Atrocities Act on spreading casteism 42. In the light of submissions made, it is necessary to express concern that working of the Atrocities Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values. Such concern has also been expressed by this Court on several occasions. Secularism is a basic feature of the Constitution. Irrespective of caste or religion, the Constitution guarantees 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 Consti....
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....o all its citizens justice, social, economic and political, equality of status and of opportunity. 45. In the Report of the National Commission to Review the Working of the Constitution one of the failures of the working of the Constitution noted was that the elections continued to be fought on caste lines. The said observations have been quoted in People's Union for Civil Liberties (PUCL) and Anr. Etc. v. Union of India and Anr. (2003)4 SCC 399 as follows: 20. It is to be stated that similar views are expressed in the Report submitted in March 2002 by the National Commission to Review the Working of the Constitution appointed by the Union Government for reviewing the working of the Constitution. Relevant recommendations are as under: Successes and failures 4.4. During the last half-a-century, there have been thirteen general elections to the Lok Sabha and a much large number to various State Legislative Assemblies. We can take legitimate pride 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 quar....
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....s of the political parties have lost meaning in the present system of governance due to lack of accountability. 47. We are thus of the view that interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require check on false implications of innocent citizens on caste lines. Issue of anticipatory bail 48. In the light of the above, we first consider the question whether there is an absolute bar to the grant of anticipatory bail in which case the contention for revisiting the validity of the said provision may need consideration in the light of decisions of this Court relied upon by learned amicus. 49. Section 18 of the Atrocities Act containing bar against grant of anticipatory bail is as follows: Section 438 of the Code not to apply to persons committing an offence under the Act.-Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. 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 S....
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....ving the arrest of any person on an accusation of having committed an offence punishable under the provisions of this Act...". Section 17(5) of the TADA Act put further restriction on a person Accused of an offence punishable under the TADA Act being released on regular bail and one of the conditions was: Where the Public Prosecutor opposes the application for grant of bail, the court had to be satisfied that there were reasonable grounds for believing that the Accused was not guilty of such offence and that he was not likely to commit any such offence while on bail. The provisions of the Unlawful Activities (Prevention) Act, 1967 (for short "the UAPA Act"), namely Under Section 43D(4) and 43D(5) are similar to the aforesaid Sections 17(4) and 17(5) of the TADA Act. Similarly the provisions of Maharashtra Control of Organised Crime Act, 1999 (for short "MCOC Act"), namely, Sections 21(3) and 21(4) are also identical in terms. Thus the impact of release of a person Accused of having committed the concerned 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 t....
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.... said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime. 54. In view of decisions in Vilas Pandurang Pawar (supra) and Shakuntla Devi (supra), learned ASG has rightly stated that there is no absolute bar to grant anticipatory bail if no prima facie case is made out inspite of validity of Section 18 of the Atrocities Act being upheld. 55. In Hema Mishra v. State of U.P. (2014) 4 SCC 453-paras 21, 34 to 36, it has been expressly laid down that inspite of the statutory bar against grant of anticipatory bail, a Constitutional Court is not debarred from exercising its jurisdiction to grant relief. This Court considered the issue of anticipatory bail where such provision does not apply. Reference was made to the view in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and Ors. (2009) 4 SCC 437 to the effect that interim bail can be granted even in such cases without Accused 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 ....
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....in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between a definition of the expression "Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (42 of 1955), with particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. 58. In the present context, wisdom of legislatu....
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....e truthful and genuine one, there cannot be any two views about the strictest possible view taken in such matter. Not only that but if the complaint is also found to be prima facie dependable one that is to say, free from doubt, then as a warranted Under Section 18 of the Atrocities Act, even the anticipatory bail to such Accused has got to be refused. In fact, the Parliament in its utmost wisdom has rightly evidenced great concern and anxiety over the atrocities which are going on unabatedly on S. Cs. & S. Ts. by inserting the provisions Under Section 18 of the Atrocities Act disabling the Accused from obtaining the anticipatory bail Under Section- 438 of the Code. This indeed is a welcome step and in accordance with the axiomatic truth, viz., 'the disease grown desperately must be treated desperately else not'. The disease of commission of offences by way of atrocities against the members of S.Cs. and S.Ts. are unabatedly going on since last hundreds of years and in the recent past have become alarmingly increasing and has become so rampant, breath taking and has reached such a desperate pass that it indeed needed a very stringent and desperate legislation which could hel....
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....avour 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. 5. Now reverting to the contents of the complaint and attending circumstances highlighted by Mr. Pardiwala, the learned Advocate for the Petitioner-accused, the same prima facie clearly demonstrates that at this stage the story revealed by the complainant does not appear to be free from doubt. If that is so, very applicability of the Atrocities Act is rendered doubtful. If that is the situation, then to refuse th....
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.... A.P.P. Taking into consideration the facts and circumstances of this particular case, and in view of the aforesaid discussion, this Misc. Criminal Application for anticipatory bail deserves to be allowed and is allowed accordingly. 62. The above view was reiterated in Dr. N.T. Desai (supra), after considering the judgment of this Court in Balothia (supra). It was observed that even taking Section 18 of the Atrocities Act to be valid, if the Court, prima-facie, found the story of complainant to be doubtful, the Accused could not be allowed to be arrested. Doing so would be unjudicial. It was observed;- 8. To deal first with the preliminary objection raised by the learned A.P.P. Mr. Desai, it may be stated that the Supreme Court's decision rendered in the case of State of M.P. & Anr. v. Ramkishan Balothia (supra) stands on altogether quite different footing where the vires of Section 18 of the Act came to be decided. The Apex Court has ultimately held that Section 18 of the Act was not ultra vires. This Court is indeed in respectful agreement with the aforesaid decision of the Supreme Court.......... ... ... ... ... But then having closely examined ....
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.... 52. True, our Constitution has no 'due process' Clause or the Eighth Amendment; but, in this branch of law, after Cooper [Rustom Cavasjee Cooper v. UOI (1970) 1 SCC 248] and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. XXX XXXX XXXX 84. The principle of "due process" is an emanation from the Magna Carta doctrine. This was accepted in American jurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p. 90: US p. 142). Again this was acknowledged in Planned Parenthood of Southeastern Pennsylvania v. Casey [120 L Ed 2d 674] wherein the American Supreme Court observed as follows: The guarantees of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny', have in this country 'become bulwarks also against arbitrary legislation'. 85. All these concepts of "due proc....
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....e 11(1) of the Universal Declaration of Human Rights (1948) it is stated: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.... Similar provisions have been made in Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966). Xxx xxxx xxx xxx 47. We may notice that Sachs, J. in State v. Coetzee [1997(2) LRC 593] explained the significance of the presumption of innocence in the following terms: There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the Accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book.... Hence t....
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....on of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty Under Article 21 of the Constitution. 68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention. 69. In Lal Kamlendra Pratap (supra), this Court held that even if there is no provision for anticipatory bail, the Court can grant interim bail in suitable cases. It was observed: 6. Learned Counsel for the Appellant apprehends that....
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.... for the parties were more concerned with the adverse effect of the Section on the powers of the judiciary. Impliedly conceding that the Section was valid so far as it pertained to the appropriate Government, it was argued that the legislature is not competent to take away the judicial powers of the court by statutory prohibition as is shown to have been done vide the impugned section. Awarding sentence, upon conviction, is concededly a judicial function to be discharged by the courts of law established in the country. It is always a matter of judicial discretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a criminal court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal. 73. On the above reasoning, it is difficult to hold that the le....
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....itutional guarantee and law of arrest laid down by this Court. 77. We are conscious that normal Rule is to register FIR if any information discloses commission of a cognizable offence. There are however, exceptions to this rule. In Lalita Kumari v. State of U.P. (2014) 2 SCC 1, it was observed: 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all the cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. xxxx xxxx xxxx 117. In the context of offences relating to corruption, this Court in P. Sirajuddin [(1970) 1 SCC 595] expressed the need for a preliminary inquiry before proceeding against public servants. xxxx xxxx xxxx 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend o....
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....responsible officer. The lodging of such a report against a person, specially one who like the Appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can of taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner....... 79. We are of the view that cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held. Such inquiry must be time-bound and should not exceed seven days in view of directions in Lalita Kumari (supra). 80. Even if preliminary inquiry is held and case is registered, arrest is not a must as we have already noted. In Lalita Kumari (supra) it was observed: 107. While registration of FIR is mandatory, arrest of the Accused immediately on registration of FIR is not at all mandatory. In fact, registration of FIR and arrest of an Accused person....