2018 Supreme(SC) 243

SUPREME COURT OF INDIA
ADARSH KUMAR GOEL, UDAY UMESH LALIT, JJ.
Dr. Subhash Kashinath Mahajan - Appellant
Versus
The State of Maharashtra & Anr. - Respondents
Criminal Appeal No. 416 of 2018 (Arising out of Special Leave Petition (Crl.) No. 5661 of 2017)
Decided On : 20-03-2018

IMPORTANT POINTS
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.
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 direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

Headnote:(a) Constitution of India – Article 136 – Jurisdiction of Supreme Court to issue appropriate orders or directions for enforcement of fundamental rights – A basic feature of the Constitution – Procedural technicality no impediment to enforcing fundamental rights – Power to declare law carries with it power to make law when none exists. (Para 31, 32, 33, 34)

       (1984) 3 SCC 161; (1998) 4 SCC 409; (1989) 2 SCC 754; (2011) 13 SCC 706 – Relied upon

       (1997) 6 SCC 241; (1983) 2 SCC 244; (1996) 1 SCC 753; (1996) 6 SCC 756; (2012) 1 SCC 333; (1994) 6 SCC 241; (2016) 1 SCC 1; (2017) 9 SCC 766; (2007) 15 SCC 337; (2011) 5 SCC 1; (2010) 5 SCC 318; (2004) 12 SCC 104 and (2010) 15 SCC 57; (1996) 4 SCC 37; (1978) 4 SCC 494; (1980) 1 SCC 98 – Referred

       (b) Code of Criminal Procedure, 1973 – Section 41 – Arrest – Regulation of power to arrest – Reading avoidance of arrest except in heinous crimes into Article 21, Constitution of India court issuing directions to regulate arrest – Similarly, issuing directions to regulate anticipatory bail – Held Court can issue directions even if it can be perceived to be of legislative nature. (Para 36, 37, 40, 41)

       (1994) 4 SCC 260; (2014) 8 SCC 273; (1997) 1 SCC 416; (2016) 11 SCC 703; (2016) 7 SCC 221; (2011) 1 SCC 694 – Relied upon

       (1978) 1 SCC 248 – Referred

       (c) Interpretation of statute – Interpretation of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Should promote constitutional values of fraternity and integration of the society – False implications of innocent citizens on caste lines may be required to be checked. (Para 47)

       1992 Supp(3) SCC 217; (2003) 4 SCC 399 – Relied upon

       (d) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 18 – Anticipatory bail – Section 18 excluding application of section 438, CrPC but no fetter on grant of regular bail u/s 437, CrPC – Ram Krishna Balothia holding section violative of Article 14 and 21, Constitution of India – Not need to refer to larger Bench in view of Maneka Gandhi – Law in Balothia clarified – Anticipatory bail excluded only to protect victims of perpetrators of crime – Cannot be applicable to those who are falsely implicated for extraneous reasons and are not found to have committed the offence on prima facie independent scrutiny – Section 17(4) and (5), Terrorist and Disruptive Activities (Prevention) Act, 1985; Sections 21(3) and (4), Maharashtra Control of Organised Crime Act, 1999 referred – Purposive interpretation. (Para 51, 52, 53, 56)

       (2012) 8 SCC 795; (2014) 15 SCC 521; AIR 1962 SC 955 : 1962 Supp (2) SCR 769 – Relied upon

       (1995) 3 SCC 221; (1978) 1 SCC 248; (2014) 4 SCC 453; (2009) 4 SCC 437; (1994) 3 SCC 569 – Referred

       (e) Section 18 – Exclusion of anticipatory bail – Cannot be read as absolute – Inherent jurisdiction of courts – Motivated and false allegation not enough to deprive a citizen of his liberty without independent scrutiny – Otherwise, public servants may find it difficult to discharge their bona fide functions – They may even be blackmailed with false cases – Held, Section 438 Cr.P.C. is excluded in case of prima facie commission of offence under the Act – In case of prima facie motivated and false allegations, section 438 will not be excluded. (Para 58, 59, 60, 62)

       (1992)1 GLR 405; (1997) 2 GLR 942 – Cited with approval

       (1995) 3 SCC 221 – Referred

       (2012)1 GLR 499 – Overruled

       (f) Constitution of India – Article 21 – Concept of ‘due process’, and a just, fair and reasonable law read into Article 21 – Presumption of innocence – A human right – There cannot be presumption of guilt – A person cannot be deprived of his liberty without an opportunity before an independent forum or Court – Working of the act in last three decades – Innocent persons being implicated for various other reasons – Held, exclusion of anticipatory bail will not apply unless a prima facie case is made out as determined by the Court concerned. (Para 64, 65, 66, 68, 71, 72, 73, 74)

       (2012) 3 SCC 346; (2008) 16 SCC 417; (2009) 4 SCC 437; (2012) 8 SCC 795; (1994) 4 SCC 260; (2014) 8 SCC 273; (2016) 11 SCC 703; (2011) 1 SCC 694; (2000) 8 SCC 437 – Relied upon

       (1992)1 GLR 405; (1997) 2 GLR 942 – Approved

       (1995) 3 SCC 221; Manju Devi – Clarified

       2016 CriLJ 2217; 2015(4) BomCR(Crl) 545 – Referred

       (g) Code of Criminal procedure, 1973 – Section 154 – Registration of FIR on getting information – Exceptions – No FIR without preliminary enquiry – Even after registration of FIR, arrest not a must. (Para 79, 80)

       (2014) 2 SCC 1; AIR 1964 SC 221 : 1964(3) SCR 221 – Relied upon

       Facts of the case:

       The appellant is the original accused in the case registered for the offences punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as also Sections 182, 192, 193, 203 and 219 read with 34 of the Indian Penal Code, 1860 (IPC). He was serving as Director of Technical Education in the State of Maharashtra at the relevant time.

       The second respondent - the complainant - is an employee of the department. Dr. Satish Bhise and Dr. Kishor Burade, who were his seniors but nonscheduled caste, made adverse entry in his annual confidential report to the effect that his integrity and character was not good. He lodged FIR against the said two officers under the Atrocities Act. The concerned Investigating Officer applied for sanction under Section 197 Cr.P.C. against them to the Director of Technical Education which was refused by the appellant. 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.

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

       Finding of the Court:

       Proceedings against appellant cannot be sustained.

       Result: Appeal allowed, proceedings quashed.