Date: March 20, 2018 Pages: 89
Adarsh Kumar Goel, J.
The appellant herein is the original accused in a case registered at City Police Station, Karad for offences punishable u/s 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Atrocities Act. He was serving as Director of Technical Education in Maharashtra at that time.
The complainant is an employee of the department. He was earlier employed as a Store Keeper in Government College of Pharmacy, Karad. Dr. Bhise and Dr. Burade, who were his seniors but non-scheduled 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 Investigating Officer applied for sanction under Section 197 Cr.P.C. against them to the Director of Technical Education in 2010. The sanction was refused by the appellant in 2011.
The complainant then lodged the present FIR against the appellant. According to him, Director of Technical Education was not competent to grant/refuse sanction as the above two persons were 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.
The quashing of the said complaint has been declined by the High Court. This appeal has been preferred against order dated 5th May, 2017 of the High Court of Bombay.
The question is whether any unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity.
Further, whether this will be just and fair procedure under Article 21 of the Constitution 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.
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. 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. Power to declare law carries with it, within the limits of duty, to make law when none exists.
It is 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.
Section 18 of the Atrocities Act containing bar against grant of anticipatory bail:
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.”
If a person is able to show that, prima facie, he has not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, we do not see any justification for applying Section 18 in such cases.
60. We hold that the exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the Atrocities Act is made. On the other hand, if it can be shown that the allegations are prima facie motivated and false, such exclusion will not apply.
65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court.
An accused is certainly entitled to show to the Court, if he apprehends arrest, that the case of the complainant was motivated. If it can be so shown, there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent.
67. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. The Act is also not intended to deter public servants from performing their bona fide duties. Thus, unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case, there will be no protection available to innocent citizens. Thus, limiting the exclusion 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. 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.
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.
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.
80. Even if preliminary inquiry is held and case is registered, arrest is not a must. In Lalita Kumari it was observed :
“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 are two entirely different concepts under the law, and there are several safeguards available against arrest.”
81. Accordingly, we direct that in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated.
83. Our conclusions are as follows:
i) Proceedings in the present case are clear abuse of the process of court and are quashed.
ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.