anticipatory bail

Case BriefsHigh Courts

Gujarat High Court: Dr A.P. Thaker, J. passed an order to grant anticipatory bail for the offences punishable under Section 3(1)(r)(s) and 3(2)(v-a) of the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

An appeal was made to the court after an application for anticipatory bail was rejected by the Special Judge (Atrocity), City Session Court, Ahmedabad.

The fact of the case was that the complainant had a fight with the appellant and during the fight, the appellant assaulted the complainant who suffered some injuries. Thereafter, the complainant lodged an FIR against the appellant under the provisions of the Indian Penal Code and Atrocity Act.  

The learned Counsel for the Appellant, Mahesh Bariya and Pooja Baswal, prayed for the grant of an anticipatory bail which was vehemently opposed by the respondent’s counsel, Monali Bhatt on the ground that the offence was made out under Atrocity Act and thus was a grave offence. 

The court placed reliance on the law laid down by the apex court in Gorige Pentaiah v. State of A.P., (2008) 12 SCC 531 which laid down that the preliminary inquiry shall be conducted by Deputy Superintendent of Police to find out whether allegation made out under the said act before registering an FIR relating to the commission of an offence and approval of appropriate authority shall be obtained before arrest of any person in connection with such offence.

The Court thus held that in the present case, it is doubtful as to commission of offence under Atrocity Act. Further, it appears from the affidavit of the complainant that the matter has been amicably settled between the parties and complainant has also tendered the affidavit for quashing the same FIR.  Considering the facts and circumstances of the case, without discussing the evidence in details, prima facie, this court is of the considered opinion that the discretion under Section 438 of the Code of Criminal Procedure is required to be exercised. 

The anticipatory bail was thus granted with the condition that appellant shall remain present before the Magistrate on the first day of hearing of the application and after all the subsequent occasions as may be directed by the Magistrate. It was also clarified that the appellant, even if, remanded to police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of the anticipatory bail order.[Vipul Maganbhai Patel v. State of Gujarat, 2019 SCC OnLine Guj 832, decided on 10-05-2019]

Case BriefsHigh Courts

Karnataka High Court: A Bench of B.A. Patil, J., allowed an application for the anticipatory bail filed by an accused, an engineering student to appear for the examination.

The petition was filed by the accused-petitioner under Section 438 of Code of Criminal Procedure to release him on anticipatory bail for the offences punishable under Sections 323, 324, 504, 506, 354-B read 34 of the Penal Code and Sections 8 and 12 of POCSO Act.

The fact of the case are that the complainant was in her house with her husband and daughter, the accused-petitioner due to some old rivalry went near the house, took a stone and started quarrelling. The accused-petitioner also caused grievous injury by biting middle finger of the complainant’s daughter.

The learned counsel for the petitioner, Paksha Keerthana K., submitted that there was a delay in the filing of the complaint. It was further submitted that the petitioner-accused was not present at the time of the alleged incident and the injuries suffered by the complainant are simple in nature, thus prayed for the bail under the statutory provision.

The learned counsel for the respondent, Namitha Mahesh, vehemently argued and submitted that petitioner-accused tried to molest the daughter of the complainant and caused grievous injuries and is not available for the investigation or interrogation, thus prayed for the dismissal of the petition.

High Court on noting the submissions of the parties held that the offences under POCSO were not made on the accused-petitioner and thus in the interest of justice the anticipatory bail application was granted.[Pramod D.M. v. State of Karnataka, Criminal Petition No. 2616 of 2019, decided on 16-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. dismissed a bail application filed by an individual under Section 438 CrPC, for being involved in acts of vandalism during hartal called by a political party.

Facts of the case were that a political party had declared a hartal in Kerala. The uncle of de facto complainant opened his shop despite the call for hartal. Defacto complainant went to the shop in the morning. Petitioner along with other persons abused him and caused damage to the movables in the shop. When the defacto complainant intervened, petitioner hit him on the head injuring his right eye. A case was registered against petitioner for offences punishable under Sections 143, 147, 294(b), 308, 323, 324 and 427 read with Section 149 of the Penal Code, 1860. Apprehending arrest, petitioner approached this court seeking anticipatory bail.

The Court noted that the aforesaid criminal acts were done by the petitioner under the cover of hartal called by a political party. Petitioner and his group’s act was nothing but sheer vandalism, under the guise of hartal. Call for hartal by any political party only gives the right to the members of that political party to withdraw themselves from their work as a protest. They may also persuade their fellow workers to withdraw from their work. But that does not empower them to commit criminal acts, much less, any act intended to interfere in the exercise of the fundamental right of any person to move freely anywhere in India and to carry on his trade or business anywhere in India. Reliance was placed on Full Bench decision of this Court in George Kurian v. State of Kerala, 2004 SCC OnLine Ker 42 where it was held that nobody can be compelled to participate in hartal and general strike.

Further, the Court also relied on the decision of the Supreme Court in Kodungallur Film Society v. Union of India, (2018) 10 SCC 713 where it was held that any mob violence and crime by self-appointed keepers of public morality, terrorizing common man without legal sanction and causing loss of life and destruction of property, should be dealt with seriously. It was opined that bail applications filed by persons charged with such offence should be dealt with circumspection.

In view of the above, anticipatory bail was rejected.[Vinod. P v. State of Kerala, 2019 SCC OnLine Ker 1012, Order dated 20-02-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. allowed the bail application filed by a member of a political party involved in protests against the entry of women in Sabarimala, on the ground that his custodial interrogation did not seem necessary for the investigation.

Petitioner herein was accused of offences punishable under Sections 143, 147, 148, 294(b), 506(ii), 324, 427, 332 and 307 read with Section 149 of Penal Code, 1860 and Section 3(2)(e) of Prevention of Damage to Public Property Act, 1984. Allegation of the prosecution was that on 02-01-2019, petitioner along with 350 people conducted a procession protesting against the entry of women in Sabarimala. They pelted stones at the office of a political party, on police officers, and also attacked the defacto complainant.

The Court noted that the earlier bail application filed by petitioner – leader of the political party – was dismissed by this Court considering that he had committed the main overt acts. He seems to be the. However, even though his earlier bail application was dismissed, the investigating agency had not arrested him till the date of this hearing. It seemed that the investigation had progressed considerably.

Considering the change of circumstances, it was opined that custodial interrogation of the petitioner may not be absolutely essential at that point of time. Hence, he was granted the benefit of pre-arrest bail.[Sivan v. State of Kerala, 2019 SCC OnLine Ker 1006, Order dated 26-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Vinod Kumar Sinha, J. allowed a criminal appeal granting anticipatory bail to persons who were apprehending their arrest under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Appellants herein were apprehending their arrest in connection with a police case registered for offences punishable under Sections 147, 341, 323, 354, 504, 506 of the Penal Code, 1860 and Sections 3(1)(s) of the SC/ST (Prevention of Atrocities) Act. Allegation against them was that they arrived, heavily armed, at informant’s house, thrashed his wife, assaulted her and made her semi-naked.

Submission of the learned counsel for the appellants, Mr Ashok Kumar Jha, was that Appellant 1 had filed a title suit pertaining to a land which the defendant (in title suit) tried to sell to the informant. However, the Court granted an injunction in favour of the appellants. Holding the same grudge against appellants, a fabricated police case had been lodged against appellants.

In view of facts and circumstances, the Court allowed the appellants to be released on bail in the event of their arrest, on furnishing a bail bond of Rs 25,000 each with two sureties of the like amount to the satisfaction of the learned Special Judge, SC/ST Act, Sitamarhi. [Bhikhari SK v. State of Bihar, 2019 SCC OnLine Pat 257, Order dated 27-02-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner filed before the bench of Gurvinder Singh Gill, J., an application for grant of anticipatory bail where FIR was registered under Sections 307, 326, 324, 325, 148 and 149 of Penal Code.

The FIR was filed alleging petitioner that he inflicted a blow with kirch in the stomach of the complainant and his nephew was also injured in the process. Petitioner submitted that genesis of occurrence was suppressed as he himself had received 7 injuries. Further, the incident occurred in a shop possessed by the petitioner which shows that complainant was the aggressor. Whereas the respondent submitted that since petitioner was specifically mentioned in the FIR and allegations against him were duly established in the Medico-Legal Report thus no case for anticipatory bail was made out.

High Court perused a judgment passed by Civil Judge (Junior Division) Amritsar where an uncle of the complainant, had filed a civil suit against a petitioner seeking a permanent injunction to restrain the defendant from causing any damage to the shops. The aforementioned suit was dismissed where the petitioner had failed to establish entitlement towards a suit property. As stated by petitioner the appeal against the above was dismissed. However, the Court was of the view that since petitioner had 7 injuries whose aggressor was not certain anticipatory bail must be granted. [Raj Kumar v. State of Punjab, 2019 SCC OnLine P&H 151, dated 26-02-2019]

Case BriefsHigh Courts

Bombay High Court: K.K. Sonawane, J., while reversing the judgment passed by Additional Sessions Judge, allowed pre-arrest bail applications of appellants filed under Section 438 CrPC.

The appellants were accused of assaulting the complainant and abusing him using filthy language while referring to his caste “Adiwasi”. An FIR was lodged and a criminal case was registered under Sections 324, 504, 506 read with Section 34 IPC and under Section 3 (1)(r)(s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Apprehending arrest by Police, the appellants rushed to the court of Additional Sessions Judge for the relief of anticipatory bail under Section 438 CrPC. However, he rejected all the applications. This order was the subject matter of present appeals.

S.K. Chavan and R.J. Nirmal, Advocates representing the appellants submitted that they were students taking education in Agricultural College who had no concern with the alleged crime and were falsely implicated. Per contra, D.S. Jape, Assistant Public Prosecutor appearing for the State submitted that Section 18-A of SC/ST Act puts an embargo on the Court for exercising powers under Section 438 CrPC.

On perusing the FIR, the High Court was of the view that prima facie, ingredients of Section 3(1)(r)(s) did not match with factual score of the present case. Relying on its earlier decisions, the Court observed, “in spite of bar under Section 18 of the Act of 1989, for invocation of powers under Section 438 of the CrPC, it is still open to this Court to find out by looking to the FIR of the case itself is as to whether prima facie case is made out by the complainant against appellants.” Opining that incriminating circumstances to show that “intentional insult” or “intimidation with intent to humiliate” the complainant within public view on the part of appellants were lacking in this case, the High Court held it to be a fit case where anticipatory bail may be granted to them. Hence, the impugned order was quashed and the appeals were allowed. [Krishna v. State of Maharashtra, 2019 SCC OnLine Bom 341, decided on 27-02-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The application was filed before the Bench of S.C. Sharma, J. under Section 438 of Criminal Procedure Code for grant of anticipatory bail.

Applicants were apprehending their arrest for offences punishable under Section 498-A, 506 and 34 of the Penal Code registered with Police Station Pandrinath, Indore. Applicant 1 was the husband and other applicants were the father and mother-in-law of the complainant. Applicant 1 had stated that after 15-20 days of his marriage with complainant he came to Indore. Applicants were alleged for dowry demand and cruelty to complainant. Applicants contended that complainant was having an affair with someone and she was stopped from chatting with him. Even after efforts to peacefully end the marriage, a false complaint against applicants was made. Further, they submitted that they are respectable persons and they do not intend to abscond. It was brought before Court that FIR was lodged against the applicants only after a suit for divorce was filed.

High Court was of the view that bail ought to be granted to the applicants and the applicants should adhere to the conditions mentioned in Section 438(2) CrPC. [Kunal Bagdi v. State of M.P., 2019 SCC OnLine MP 215, Order dated 30-01-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of  Vipul M. Pancholi, J., allowed the application made for granting an anticipatory bail on the grounds that the applicant was a lady, she was a doctor having two minor children and had cooperated with the investigating officer. 

The facts of the case are that the applicant was booked for the offenses punishable under Sections 419, 420, 423, 465, 467, 468, 470, 471, 474, 477-A, 120-B of the Indian Penal Code for which this application was filed under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail. The counsel for applicant argued that the nature of allegations were such for which custodial interrogation at that stage was not necessary. Additional Public Prosecutor appearing on behalf of the respondent – State opposed grant of anticipatory bail by emphasizing on the gravity of the offence.

The Court allowed the application on the ground that the applicant was a lady; she was a Doctor having two minor children and had cooperated with the investigating officer thus granting her anticipatory bail. [Varsha Madhukar Wagh v. State of Gujarat, 2019 SCC OnLine Guj 127, decided on 22-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner had prayed for anticipatory bail in FIR registered under Sections 420, 465, 467, 471 and 120-B of the Penal Code before a Single Judge Bench of Arvind Singh Sangwan, J.

Facts of the case are that petitioner had executed a sale deed and sold a house of the complainant on the basis of alleged forged Special Power of Attorney of the complainant. Later, petitioner was granted interim anticipatory bail. Whereas complainant submitted that huge amount was transferred in the account of the petitioner. Petitioner had not accounted for the same and had mis-utilized. On request of the petitioner, matter was referred to Mediation and Conciliation Centre of the High Court which was contested by the complainant by stating that petitioner was not inclined to any amicable settlement pertaining to the FIR. The state opposed grant of bail to petitioner alleging him of committing of a serious offence.

The High Court was of the view that petitioner had forged and fabricated power of attorney related to the property of the complainant. The Court considered the allegations on the petitioner to be of serious offence. Therefore, this petition for grant of anticipatory bail was dismissed. [Gurdeep Singh v. State of Punjab,2018 SCC OnLine P&H 1843, decided on 21-11-2018]

Case BriefsHigh Courts

Patna High Court: A Single judge bench comprising of Birendra Kumar, J. allowed the plea for anticipatory bail of a person apprehending arrest under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), on the ground of inconsistencies in statements of prosecution.

A police case was registered inter alia for poisoning the cow of a person who was purportedly the informant of offences committed by appellant under Sections 341, 323, 429, 506, 504 of the Indian Penal Code, 1860  as well as Sections 3(i)(x) of the SC/ST Act. The instant appeal was preferred under Section 14-A(2) of the SC/ST Act against trial court’s order refusing appellant’s prayer for grant of anticipatory bail.

The High Court noted that there were inconsistencies in statements made by the informant in first information report (FIR) and that of his daughter as recorded in the case diary. Informant was not the eyewitness of the occurrence alleged. His daughter was examined by the police and her statement recorded in case diary did not contain the name of the appellant. Rather, she had alleged some unknown persons to have poisoned the cow of the informant. Informant’s daughter had not supported other allegations disclosed in the FIR.

In view of the above, the appeal was allowed and anticipatory bail was granted to the appellant in the event of his arrest, subject to the condition of full cooperation in the investigation/trial of the case, failing which trial court would be at liberty to cancel his bail bond.[Brihaspati Sah v. State of Bihar,2018 SCC OnLine Pat 1994, decided on 02-11-2018]

Case BriefsHigh Courts

Patna High Court: A Single judge bench comprising of Birendra Kumar, J. allowed a criminal writ petition for anticipatory bail filed in relation to a police case under the SC/ST Act on the ground that there were infirmities in the prosecution allegations.

The appellant was allegedly involved, along with other ten to fifteen persons, in assaulting a person belonging to SC/ST community. He filed the instant appeal under Section 14(A)(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against trial judge’s refusal of prayer for his anticipatory bail.

The High Court noted that the doctor had found two simple injuries on non-vital parts of the informant’s body, and the medical report was inconsistent with the prosecution allegation of commission of assault by 10-15 persons. Further, in a criminal case filed against one of the co-accused a bench of this court had ordered no coercive step to be taken against the co-accused. The said order was still continuing.

Considering the aforesaid infirmity in the prosecution allegation and having regard to the order continuing in favour of a co-accused, the appellant was granted anticipatory bail on the condition of full cooperation with investigation/trial of the case, failing which the court would be at liberty to cancel his bail bond.[Md. Shafique v. State of Bihar,2018 SCC OnLine Pat 1995, decided on 02-11-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single judge bench comprising of B.A. Patil, J. while hearing a criminal petition under Section 438 of the Code of Criminal Procedure, 1973 allowed anticipatory bail of the petitioner since there was no material against him in the case.

Brief factual background of the matter was that a complaint was filed by one Ravishankar alleging that the petitioner herein had created fake documents and committed offences punishable under the company law. On a complaint filed by Ravishankar, police completed its investigation and filed a report on the basis of which summons were issued to the accused petitioner. The petitioner challenged the said investigation report.

Counsel for the petitioner pleaded that there were no specific allegations against the petitioner and no material against him on record. It was also contended that livelihood of the petitioner was in France and he regularly shuttled between India and France. In such a scenario if the present petition is not allowed, it would adversely affect his livelihood. Further, he was ready to abide by any terms and conditions that may be imposed on him by the Court and was also ready to offer surety, if released on bail.

Having regard to the facts and circumstances of this case, the petition was allowed by Court with a direction that the petitioner be released on anticipatory bail in the event of his arrest, subject to execution of a bond of Rs 2 lakh along with other conditions such as that of appearance in court when needed and non-tampering of prosecution evidence. [Sanjeev Rao v. State, Criminal Petition No. 5668 of 2018, decided on 03-10-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Sandeep Sharma, J. allowed a petition filed under Section 438 CrPC holding that freedom of an individual cannot be curtailed for an indefinite period without there being a finding of guilt.

The petitioner was accused of having disproportionate assets for which an FIR was registered. The petitioner, who was  Managing Director of H.P. State Forest Development Corpn. Ltd. apprehended arrest in the case which was registered under Sections 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 read with Section 120-B IPC. He prayed for grant of anticipatory bail.

The High Court perused the record and noted that the bail petitioner had already joined the investigation and was fully cooperating; the guilt of the petitioner, if any, was yet to be proved. The Court relied on Dataram v. State of U.P.,(2018) 3 SCC 22 wherein it was held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. The Court reiterated that object of bail is to secure the attendance of the accused in the trial, an object of bail is neither punitive not preventive. Considering the facts noted above, the Court found it a fit case to exercise jurisdiction in favour of the petitioner. Accordingly, the petition was allowed and the petitioner was enlarged on anticipatory bail. [Chandra Shekhar Singh v. State of H.P.,  2018 SCC OnLine HP 857, dated 06-07-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Dipak Misra, C.J. and A.M. Khanwilkar and D.Y. Chandrachud, JJ. upheld the bail granted to a rape offender by the Hon’ble Hyderabad High Court.

In the present petition, the learned bench of the Supreme Court Judges by emphasising on the essence of “consent” in a sexual relationship heard the contentions of the parties and arrived on a decision. The accused was charged under Sections 376, 342, 493, 506 and 354 (C) of the Indian Penal Code for which he was granted anticipatory bail by the sessions judge which was further cancelled on the ground that the accused had hidden the fact of his involvement in the 2G Spectrum case and the stated order was affirmed by the High Court.

The High Court on receipt of the bail application filed by the accused had granted bail with a bond of Rs. 50,000.  For the granted bail, the learned counsel of the appellant submitted that the allegations on the accused were of grave nature involving rape of an aspiring actress and on filing a complaint in that regard, she came across a large number of threats at her end in order to withdraw the filed complaint.

On considering the submissions of the parties, Supreme Court agreed and found “no fault” on the part of  the High Court in granting anticipatory bail to the accused as the ground of the complainant in the issue was of rape, though it had been noted that the complainant had visited the accused on her own will which lead the Court towards the “consensual” relationship between the complainant and the accused. Therefore, the Supreme Court without making any further delay in the present case stated that bail once granted should not be cancelled unless or a cogent case based on a supervening event is being made out. Further, bail granted was not cancelled, though the bond was modified to Rs. 10 lakhs. [X v. State of Telangana,2018 SCC OnLine SC 549, decided on 17-05-2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Kurian Jospeh, MM Shantanagoudan and Navin Sinha, JJ asked larger bench to authoritatively settle the following questions in a clear and unambiguous way:

  • Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
  • Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

The issue as to whether an anticipatory bail should be for a limited period of time was before the bench for consideration and it took note of the fact that there were conflicting views of the different Benches of varying strength on the said issue.

While the Constitution Bench verdict in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, holds that anticipatory bail should not be for a limited period, the 3-judge bench verdict in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, without referring to the aforementioned Constitution Bench verdict, holds that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

Amicus Curiae Harin P. Raval, hence, submitted before the Court that in the light of the two conflicting schools of thought the matter needs consideration by a larger Bench. According to him even the Constitution Bench in Sibbia Case does not, in so many words, lay down a proposition that the protection of anticipatory bail is available to an accused till the conclusion of the trial.

The Court noticed that in Sibbia case, the Court has only briefly dealt with the question of duration of anticipatory bail and has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever. Hence, the Bench referred the matter to a larger bench. [Sushila Aggarwal v. State (NCT of Delhi),  2018 SCC OnLine SC 531, decided on 15.05.2018]

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 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]