Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and Sanjiv Khanna, JJ, on Friday, granted protection to activist lawyer Prashant Bhushan from any coercive action in an FIR lodged against him at Rajkot in Gujarat for allegedly hurting religious sentiments of the Hindus. In the proceedings conducted through video conferencing, the Court issued notice to the Gujarat Police and listed Bhushan’s plea after two weeks.

“In the meantime, no coercive action be taken against the petitioner in First Information Report No. 11209052200180 lodged on 12th April 2020 under Sections 295A/505(1)(b), 34 and 120B of the IPC registered at the Police Station Bhaktinagar, Rajkot, Gujarat.

The FIR was lodged by former Army personnel Jaidev Rajnikant Joshi at Rajkot alleging that Bhushan hurt religious sentiments of Hindus by tweeting against re-telecast of the Ramayana and the Mahabharata serials on DD during the coronavirus lockdown in the country.

While granting interim relief and protection to Bhushan, the apex court said,

“anybody can watch anything on TV” and questioned as to how one can ask people not to watch a particular programme.”

Senior advocate Dushyant Dave, appearing for Bhushan, sought quashing of the FIR lodged against the activist lawyer and sought interim protection against any coercive measure for the time being. He said he was not on the issue of as to what people should watch on TV, but was arguing against registration of the FIR.

In his complaint, Joshi had accused Bhushan of using word ‘opium’ for Ramayana and Mahabharata in a tweet on March 28 which hurt the sentiments of many Hindu people.

Bhushan had tweeted

“As crores starve & walk hundreds of miles home due to forced lockdown, our heartless ministers celebrate consuming & feeding the opium of Ramayana & Mahabharata to the people.”

Bhushan had filed the plea on Thursday and it was listed a day after the bench.

[Prashant Bhushan v. Jaidev Rajnikant Joshi, Writ Petition(s)(Criminal) No(s). 131/2020, order dated 01.05.2020]

(With inputs from PTI)

Case BriefsCOVID 19High Courts

Kerala High Court: A Full Court comprising of S. Manikumar, C.J., and C.K. Abdul Rehim and C.T. Ravikumar, JJ. issued certain directions taking suo motu cognizance of the public announcement of imposing a total lockdown in the wake of COVID-19 outbreak resulting in immobilization of public at large.

Notably, on 24th March, the Prime Minister announced a complete lockdown throughout the country and consequently, the Ministry of Home Affairs issue guidelines on the measures to be taken by the Governments and departments for containment of COVID-19.

Directions issued by the High Court in exercise of powers under Articles 226 and 227 of the Constitution are delineated here:

(i) Interim orders granted by District Judiciary and Tribunals: All the interim orders passed by all the Courts/Tribunals upon which High Court exercises supervisory jurisdiction under Article 227, which are due to expire during the lock down period of 21 days, are extended by by one month from 25-3-2020.

Also, if any application is filed for extending/vacating an interim order and pending for orders in this Court, the interim orders will be extended for one month.  

(ii) Recovery proceedings under State laws: In all recovery matters, such as electricity, water, Abkari and other matters, Council of Ministers, Government of Kerala has already taken a decision that payment will be deferred upto 30-4-2020, and therefore, no recovery proceedings would be initiated or recovery proceedings already initiated would not be proceeded further until 30-4-2020.

(iii) Recovery proceedings by Government of India and Public Sector Undertakings: Taking note of the submission of the Government of India before the Supreme Court that a proper mechanism will be evolved, in exercise of the powers under Articles 226 and 227 of the Constitution, the High Court also deemed it fit to state that until such time it hoped that no action would be taken.

(iv) Bail/Anticipatory bail in criminal matters already provided and due to expire during the lockdown period: Orders of bail or anticipatory bail, restricted for a limited period, which may expire in the lock down period, have to be extended. Therefore, the interim orders in such matters will stand extended for one month from 25-3-2020.

(v) Contagion of COVID-19 in prisons: Directions issued by the Supreme Court in its order dated 23-3-2020 passed in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] were reiterated. Notification dated 25-3-2020 [GO(Rt) No. 970/2020/HOME] issued by the Government of Kerala taken note of, which inter alia states ?

1. A High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) Additional Chief Secretary (Home & Vigilance), and (iii) Director General of Prison(s), is constituted to determine which class of prisoners can be released on parole or on interim bail.

2. Physical presence of all the undertrial prisoners before the Courts shall be stopped forthwith and recourse to video conferencing for all purposes.

3. The transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

4. The Director General of Prisons & Correctional Services shall develop Prison specific readiness and response plans in consultation with medical experts.

5. The Director General of Prisons and Correctional Services is empowered to grant Ordinary leave to eligible prisoners in a single spell of 60 days, subject to all other conditions of leaves, in relaxation to Rule 397(b) of Kerala Prisons and Correctional Services (Management) Rules, 2014 to reduce the number of prisoners in prisons.

6. Due to the lack of public transport system as the prisoners cannot report back in prison after the expiry of their period of leave in time, such overstayal period upto April 15 shall be considered as bail (shall not be considered as sentence undergone), provided that such prisoners shall report to the police station nearby and the Station House Officer shall report the position to prison authorities concerned.

(vi) Bail applications of convicts and undertrial prisoners: The High Court, on the administrative side, had taken a decision to hear applications seeking bail/anticipatory bails/suspension of sentence, as the case may be, and posted some of the cases for hearing on 26-3-2020. Now, the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020] has issued directions to the State Governments/Union Territories to constitute a High Powered Committee in respect of bail matters, which has already been done. Hence, the High Court deemed it fit that those applications need not be taken up for hearing and it is left to the High Powered Committee to decide.

(vii) Applications pending for anticipatory bail: Right of personal liberty guaranteed under Article 21 of the Constitution should not, at any rate, be infringed by arresting an accused, except in matters where arrest is inevitable. However, the State is at liberty to take appropriate decision in respect of heinous/serious offences and in rest of the cases, State may act accordingly.  

(viii) Events of arrest: In the event of any arrest, the Constitutional obligation under Article 20(2) shall be followed in letter and spirit. Over-crowding in prisons is one of the issues taken up by the Supreme Court in Contagion of COVID-19 virus in prisons, In re [Suo Motu WP(C) No. 1 of 2020]. Therefore, Magistrates/Judges before whom the accused is produced, depending upon the nature of offence, shall consider as to whether judicial/police custody is required or not. Needless to state that, bail is the rule and jail is an exception. It was made clear that the above said directions stand excluded to subjects relating public order/law and order and any action taken by the State Government to combat the outbreak of COVID-19 and actions taken thereof.

(ix) No coercive action by Local Self Government Institutions: It is sincerely expected that due to the outbreak of COVID-19, State Government, LSG Institutions, Government of India, and Public Sector Undertakings owned and controlled by the State/Central Governments that no coercive action be taken since there is no opportunity to the persons to approach the Courts at present. [Suo motu Writ Petition – COVID-19 – taken up by the High Court,  2020 SCC OnLine Ker 1229, decided on 25-3-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J., addressed a bail application for release of the petitioner arrested under Sections 420, 467, 468, 471 and 120-B of the penal Code, 1860.

The present application for bail states that the petitioner is innocent and has been falsely implicated. It has also been stated that he is neither in a position to tamper with the evidence nor in a position to flee from justice.

According to the police report, prosecution story which had led to the filing of FIR under the above-mentioned Sections was that,

“Promila Devi, Pradhan, Gram Panchayat Bhadarnu/complainant, got registered a complaint against the petitioner, alleging therein that the Department of NSFDC had imparted training for fruit processing to the women belonging to the Scheduled Caste. As per the said training programme, a sum of Rs. 5,000 towards Kaushal Vikaas Bhatta, per women, was to be paid to them; however, only Rs. 2,000 per women by way of Cheque was paid to them. As per the allegations,  Him. Con. Ltd. was found to have shown another training programme having been organized at Karsog, however, which as a matter of fact, was not at all organized. Consequently, FIR under Sections 420, 467, 468, 471 and 120-B IPC came to be registered against the petitioner.”

Additional Advocate Generals, Shiv Pal Manhans and P.K. Bhatti, contended that the petitioner was found involved in non-cognizable offences and in the case at this stage he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice.

High Court on noting the facts and circumstances of the case stated that, petitioner being the resident of the place and joining the investigation is neither in a position to tamper with the prosecution nor to flee from justice.

Thus, the Court held that the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of arrest, is required to be exercised in his favour. Bail granted subject to conditions. [Bhumi Nand v. State of H.P., 2019 SCC OnLine HP 2167, decided on 16-12-2019]

Case BriefsSupreme Court

Supreme Court: Holding that the Court should not have encroached upon the field reserved for the legislature, the 3-judge bench has partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018. The 3-jduge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that some portions of the said verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.

The guidelines laid down in the March, 2018 verdict were:

(i) Proceedings in the present case are clear abuse of 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) 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 the direction of the Court will be actionable by way of disciplinary action as well as contempt.

Challenging the said verdict, the Union of India argued that Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst member of Scheduled Castes and Scheduled Tribes. It submitted,

“any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases.  With a view to object apprehended misuse of the law, no such direction can be issued.”

Accepting the contention, the Court held that the guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221.

“The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above.”

It further said that directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules.

Considering the plight of the members of the Scheduled Castes and Scheduled Tribes, the Court said that the SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. It said,

“if we cannot provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality and against the very spirit of our Constitution. It would be against the basic human dignity to treat all of them as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt.”

The Court also noticed that there is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. It said that the members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor.

“There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the Cr.PC.”

The Court, hence, held,

“we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes.”

[Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, decided on 01.10.2019]

Hot Off The PressNews

Supreme Court: Former Indian skipper Mahendra Singh Dhoni on Tuesday approached the Court seeking its direction to Amrapali  group for payment of his pending dues allegedly amounting to Rs 40 crore towards his services to the real-estate company.

His lawyer argued:

“The embattled real estate group owes Rs 40 crore to the former cricket captain over his services to the group while acting as a brand ambassador,”

In the case relating to non-delivery of around 42,000 flats to homebuyers by the beleaguered Amrapali Group, the Court has allowed Delhi Police to arrest Amrapali Group chairman and managing director Anil Sharma in relation to a criminal complaint filed against him. The top court also said that the Economic Offence Wing (EOW) of Delhi Police can also arrest Amrapali directors Shiv Priya and Ajay Kumar in the case.


Also read:

Amrapali Group of Companies| 7 premises sealed; directors  in police custody till the ‘cataloguing’ of the documents

SC directs arrest of Amrapali Group CMD, Anil Sharma and two other directors

Hot Off The PressNews

Supreme Court: In the case relating to non-delivery of around 42,000 flats to homebuyers by the beleaguered Amrapali Group, the Court has allowed Delhi Police to arrest Amrapali Group chairman and managing director Anil Sharma in relation to a criminal complaint filed against him. The top court also said that the Economic Offence Wing (EOW) of Delhi Police can also arrest Amrapali directors Shiv Priya and Ajay Kumar in the case.

Ordering seizure of personal properties of Sharma and the other directors, the court also directed forensic auditors to complete their probe on divergence of homebuyers’ money by the Amrapali Group before March 22.

The bench of Arun Mishra and UU Lalit, JJ said:

“We had never stopped any agency from arresting the directors, who are presently housed at a hotel under the detention of UP police.”

In December, the Supreme Court had ordered seizure of assets of the company, asking as to why criminal proceedings should not be initiated. It even called the company the “worst kind of cheater in the world” and “a perfect liar” for not complying with its direction. It has already ordered seizure of the company’s 100-bed multi-speciality hospital, bank accounts, the building which houses its office, certain firms and a benami villa in Goa.

The next hearing in the case will be on March 26.

(Source: NDTV)

Legislation UpdatesStatutes/Bills/Ordinances

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 has been passed by the Parliament and notified on 19-09-2018, as signed by the President for promulgation. The ordinance is directed towards protection of married Muslim women and prohibition of pronouncement of talaq by their husbands and any other matter incidental thereto. This ordinance has been promulgated with a view that despite the holding in the matter of Shayara Bano v. UOI, (2017) 9 SCC 1 where triple talaq was declared unconstitutional the practice still continued.

 

Highlights of the Ordinance:

  • Definition of talaqSection 2(b) of the ordinance definestalaqas talaq-e-biddat or talaq of similar form, pronounced by a Muslim husband having effect of instantaneous and irrevocable divorce.
  • Talaq to be void and illegal — This ordinance declares pronouncement of talaq by Muslim husband to be void and illegal and penalizes the commission of same with imprisonment which may extend to 3 years and fine under Section 3 and Section 4 respectively.
  • Allowance — According to the ordinance under Section 5 a Muslim husband who pronounces triple talaq to his wife will be liable to pay to her and dependent children subsistence allowance as may be determined by Magistrate.
  • Custody of Minor Children — In case a Muslim husband pronounces triple talaq to his Muslim wife the custody of their minor children will be with the married Muslim women i.e. his wife provided under Section 6.
  • Cognizable Offence — The offence under this ordinance has been declared as cognizable under Section 7(a).
  • Who can report? — Any commission of offence under this act can be informed to the officer in charge of a police station directly by the married Muslim woman on whom the talaq was pronounced and by any other person related to her by blood or marriage.
  • Compoundable Offence — According to Section 7(b) offence of pronouncing talaq is stated to be compoundable at the instance of married Muslim woman on whom talaq was pronounced but only with the permission of Magistrate.
  • Grant of Bail— Under Section 7(c) bail can be granted only when the Magistrate is satisfied after perusing the application of the accused and hearing married Muslim women upon whom the talaq was pronounced that reasonable ground for granting bail exists.
Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., while disposing of a writ petition related to Section 498-A IPC, modified the directions concerning registration of FIR, arrest and bail under the said section as given in a recent judgment in Rajesh Sharma v. State of U.P.2017 SCC OnLine SC 821.

The writ petition, under Article 32 of the Constitution, was filed seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer was made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC. It is worthy to note here that during the pendency of the instant petition, the judgment was pronounced in Rajesh Sharma. During the course of proceedings, learned Amicus Curiae submitted that the said decision requires reconsideration.

The Supreme Court, in order to adjudicate on the petition, perused scheme and object of Section 498-A as well as guidelines laid down in D.K. Basu v. State of W.B., (1997) 1 SCC 416 and also Lalita Kumari v. State of U.P, (2014) 2 SCC 1 wherein the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. On perusal of directions in Rajesh Sharma, the Court found that it directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, in Court’s view, were beyond the Code and the same did not really flow from any provision of the Code. It was stated that there could be no denial that there has to be just, fair and reasonable working of a provision. The legislature, in its wisdom, has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. In the aforesaid analysis, the Court declared the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, it is appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar v. State of U.P., (1994) 4 SCC 260; D.K. Basu; Lalita Kumari and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. It was thought appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by the Court relating to arrest. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole was not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the directions given by the Court. Direction No. 19(iii) was modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 CrPC and the High Court, keeping in view the law laid down in Gian Singh v. State of Punjab, (2012) 10 SCC 303 , shall dispose of the same. The petition was accordingly disposed of. [Social Action Forum for Manav Adhikar v. Union of India,2018 SCC OnLine SC 1501, decided on 14-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, J., ordered a marine vessel to be arrested while deciding on the affidavit of arrest filed in an admiralty suit.

The plaintiff prayed for arrest of a marine vessel M.T. Aquarius, flying with Barbados flag, lying at Haldia Dock within the jurisdiction of Calcutta High Court. Plaintiff alleged to have a maritime claim against the defendant vessel of Rs 28,06,31,328 on account of her failure to deliver the cargo of gas oil to the plaintiff at the port of Mukalla, Yemen. It was the case of the plaintiff that the defendant vessel, instead of delivering the said gas oil cargo at Makalla, delivered the same to a third party at Hamriyah, UAE.

The High Court, considering all the facts and circumstances, was of the view that the plaintiff had made a prima facie case and balance of convenience also lie in its favour. The Court also found favour with the submission of the plaintiff that its claim gave rise to a maritime claim under Section 4(1)(f) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. It was also noted that the defendant’s vessel was likely to leave Indian Territorial Waters during the next few days. Accordingly, the Court ordered arrest of the defendant vessel, M.T. Aquarius, along with her tackle, hull, engine, equipments, apparels, furniture and all movables lying on board. However, it was clarified that on payment of the amount stated hereinabove as security with the Registrar of the Court, the order of arrest shall stand vacated. The application was made returnable on a further date.  [Quick Time General Trading LLC v. Owners and Parties Interested in the Vessel M.T. Aquarius,2018 SCC OnLine Cal 5363, dated 10-08-2018]

Hot Off The PressNews

Supreme Court:  Attorney General KK Venugopal, seeking stay on the Supreme Court order on the SC/ST Act, said that the Court cannot make rules or guidelines which go against the law passed by the legislature. He said that  the SC/ST verdict had resulted in loss of life and hence, the matter should be referred to a larger bench.

The Bench of AK Goel and UU Lalit, JJ, however, said that it was 100 per cent in favour of protecting the rights of these communities and punishing those guilty of atrocities against them. It said that while deciding on the verdict on the SC/ST Act, it had considered every aspect and all the judgments before reaching a conclusion.

The Centre had moved the Supreme Court on April 2 seeking review of its judgement by which safeguards were put on the provisions for immediate arrest under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989. Centre said that the verdict has “diluted” the stringent provisions of the Act, resulting in great damage to the country by causing anger and a sense of disharmony among the people.

Several states were rocked by wide spread violence and clashes following a ‘Bharat Bandh’ call given by several SC/ST organisations protesting the top court’s March 20 order, that claimed eight lives. While hearing the Centre’s review petition on April 3, the Court had asserted that “no provisions of SC/ST Act have been diluted” and clarified that additional safeguards had been put in place “to protect the fundamental rights” of innocents. The Court said:

“A perusal of the order of this Court makes it clear that there is no bar to compensation or other immediate relief being given to the victim member of the SC/ST as per the provisions noted above without any delay whatsoever. There is also no bar to registration of F.I.R. under any provision of the penal code or any other law and the offences under the SC/ST Act being added later, if necessary. Thus, there is no dilution of any provision of the SC/ST Act relating to compensation, trial, punishment or otherwise.”

The Court has refused to stay the March 20 verdict till it decided the Centre’s review petition.

Source: PTI

Case BriefsHigh Courts

Madhya Pradesh High Court: While disposing off the present appeal wherein the appellant was charged under Section 3(2)(va) and 3(1)(d) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Bench of J.P. Gupta, J., reiterated the recent Supreme Court decision in Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 323, holding that a police officer, who intends to arrest a person, who is not a government servant and is accused of the offence punishable under the 1989 Act, such arrest should be made with prior approval of the S.S.P concerned, only after recording the reasons of arrest in writing.

As per the facts, the appellant was the owner of the bus on which the complainant was working as a Driver. It was alleged that when the complainant demanded arrears of salary, he was abused publicly by referring to his caste. The Complainant belongs to the Scheduled Tribe community. The appellant’s counsel Harshwardhan Singh Rajput refuted the allegations and prayed before the Court to issue directions in sync with the guidelines laid down in the aforementioned Supreme Court judgment.

On perusal of the facts, the Court observed that there is no evidence to show that the FIR against the appellant was filed with malafide intentions, therefore the appellant is not entitled to get anticipatory bail. The Court however also noted that the nature of the offence is not very severe and prima facie, the appellant’s arrest is not warranted for the purpose of investigation and his presence may be secured during trial by directing him to appear before the Magistrate/Court concerned in case of filing of the charge-sheet. Furthermore the Court stated that an accused, who is not entitled to get the benefit of anticipatory bail, cannot be denied the protection available under the law with regard to unjustified and unwarranted arrest, as before arresting an accused, it is the duty of the police officer to examine and record the reasons of arrest in writing subject to scrutiny of the Magistrate/Court. [Ajeet Jain v. State of Madhya Pradesh,2018 SCC OnLine MP 327, decided on 04-04-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: An appeal was filed under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 before a Single Judge Bench comprising of J.P. Gupta, J., wherein the appellant was granted anticipatory bail in a case registered under various provisions of IPC and the SC/ST Act, 1989.

The complainant belonged to the Scheduled Tribe community and worked as a driver of the bus owned by the appellant. It was alleged by the complainant that the appellant assaulted him and abused him by addressing his caste. The appellant was consequently booked under various provisions of SC/ST Act and was apprehending arrest in connection with the same. He applied for anticipatory bail before the Special Judge which was dismissed. Hence, this appeal under Section 14-A of the SC/ST Act.

While considering the instant appeal, the High Court referred to various decisions of the Supreme Court to observe that it is expected from a police officer, who intends to arrest a person, not being a government servant and is accused of the offence punishable under the Act of 1989, to arrest only with prior approval of the SSP concerned, and after recording the reasons of arrest in writing. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. Arrest and detention in police lock-up of a person can cause irreparable harm to the reputation and self-esteem of a person. Hence, arrest cannot be made in routine manner on a mere allegation of commission of an offence. It is expected from a police officer to act as a prudent man in the interest of protection of the constitutional rights of a citizen not to arrest a person without a reasonable satisfaction arrived after some investigation as to the genuineness and bonafides of a complaint and need of arrest and thereafter record genuine reasons showing that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided.

In the background of the aforesaid discussions, considering the facts and circumstances of the present case and the material available in the case diary, the Court was of the view that the nature of the offence was not very severe and prima facie, the appellant’s arrest was not warranted for the purpose of investigation. Hence, the appeal was allowed. [Ajeet Jain v. State of MP, Cr. A. No. 1757 of 2018, dated 04-04-2018]

Case BriefsSupreme Court

Supreme Court: While hearing the review petition filed by the Central Government against the judgement dated 20.03.2018, the Bench of AK Goel and UU Lalit refused to stay the SC/ST Act verdict. The Government has filed the review petition after the Dalit outfits called for a nationwide Bandh on Monday i.e. 02.04.2018 against the verdict of the Court. At least nine people have been killed across the country due to violent protests which marred the Bharat Bandh.

The grounds for review as pointed out by Attorney General KK Venugopal are:

  • as per Rule 12(4) and (4A) read with Annexure-I of the 2016 Amendment to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, immediate compensation or other assistance has to be given to victim belonging to Scheduled Castes and Scheduled Tribes. If there is delay in preliminary inquiry, payment of such compensation or other immediate relief may be delayed.
  • there may be offences under the provision of the Indian Penal Code or any other law and direction to hold preliminary inquiry may delay registration of case in respect of such other offences also.
  • the directions are in conflict with the provision of the Code of Criminal Procedure, 1973.

Stating that the order only safeguards abuse of power of arrest or of false implication of an innocent without in any manner affecting the rights of the members of the SC/ST, the Court said:

“A perusal of the order of this Court makes it clear that there is no bar to compensation or other immediate relief being given to the victim member of the SC/ST as per the provisions noted above without any delay whatsoever. There is also no bar to registration of F.I.R. under any provision of the penal code or any other law and the offences under the SC/ST Act being added later, if necessary. Thus, there is no dilution of any provision of the SC/ST Act relating to compensation, trial, punishment or otherwise.”

In it’s verdict, the Bench had acknowledged the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and had said that the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties. It was, hence, held that unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens. It said:

“mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny.”

During the hearing of the review petition, the Court again said:

“we are not against the Act but innocent should not be punished.”

Noticing that the matter may have to be heard and considered further, the Court asked all parties to submit detailed replies within two days and listed the matter after 10 days. [Union of India v. State of Maharashtra, 2018 SCC OnLine SC 323, order dated 03.04.2018]

Case BriefsSupreme Court

Supreme Court: Acknowledging the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), the bench of AK Goel and UU Lalit, JJ said that the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties. It was, hence, held that unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens.

The Court said:

“the Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. … Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution.”

Background:

The Court was hearing an appeal against the order of the Bombay High Court where it was held 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. In the present matter, certain adverse remarks were recorded under the Atrocities Act against the appellant who was serving as the Director of Technical Education in the State of Maharashtra at the relevant time. Apart from the facts of the present appeal, it was brought to the Court’s notice that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.

Conclusion:

The Court held:

“an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly.”

Holding that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny, the Court issued the following directions:

  • 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.
  • 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.
  • 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.
  • any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.

[Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018]

High Courts

Bombay High Court: Setting aside the order of arrest of an individual defaulter, a bench comprising of Ranjit More and Anuja Prabhudessai, JJ held that the order of the recovery officer of SEBI to be arbitrary, illegal and sheer abuse of power. In the instant case the SEBI officer had committed the petitioner to civil imprisonment for a period of six months or until the dues are paid, for defaulting on payment of monetary penalty imposed on him by SEBI in the past. 

The Counsel for the petitioner contended that that SEBI officer had failed to comply with the provisions of arrest under Rule 73 of the IT Act, 1961 and had not even written down the reasons for arrest as stipulated under Rule 74. The Counsel for SEBI argued that the writ petition was not maintainable as  the petitioner had the alternate remedy of approaching the Securities Appellate Tribunal. It was also contended that despite giving several opportunities to the defaulter to repay the dues, the petitioner had not complied which had necessitated the order of arrest and detention.

The Court observed that it was a well settled principle of law that the existence of an alternate remedy would not serve as an absolute bar for not exercising writ jurisdiction. Relying on the judgment of the Supreme Court in Jolly George Varghese v Bank of Cochin (1980) 2 SCC 360, the Court held that mere non-payment of dues does not amount to neglect or refusal to pay. The operative condition would be the failure to take steps to pay an amount due in spite of having the means to do so or dishonestly transferring property to obstruct execution of certificate. The Court ordered the release of the Petitioner and remitted the matter back to the tax recovery officer with directions to decide it afresh in accordance with the provisions of law.  Vinod Hinigorani vs. The Securities & Exchange Board of India, 2015 SCC OnLine Bom 166510-3-2015