Dr. Subhash Kashinath Mahajan v. the State of Maharashtra and Anr.

ADARSH KUMAR GOEL, J. 1. This appeal has been preferred against the order dated 5 th May, 2017 of the High Court of Judicature at Bombay in Criminal Application No.1015 of 2016. 2. On 20 th November, 2017 the following order was passed by this Court:- “Heard learned counsel for the parties. Certain adverse remarks were recorded against respondent no. 2-Bhaskar Karbhari Gaidwad by the Principal and Head of the Department of the College of Pharmacy where respondent no. 2 was employed. Respondent No. 2 sou ght sanction for his prosecution under the provisions o f the Scheduled Castes and the Scheduled Tribes (Preventi on of 893 Atrocities) Act, 1989 and for certain other connect ed offences. The said matter was dealt with by the peti tioner and sanction was declined. This led to another comp laint by the respondent no. 2 against the petitioner under the said provisions. The quashing of the said complaint has been declined by the High Court. The question which has arisen in the course of consideration of this matter is whether any unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity and if such allegation i s falsely made what is protection available against such abuse. Needless to say that if the allegation is to be acted upon, t he proceedings can result in arrest or prosecution of the person and have serious consequences on his right to liberty e ven on a false complaint which may not be intended by law meant for protection of a bona fide victim. The question is whether this will be just and fair procedure under Article 21 of the Constitution of India 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. Issue notice returnable on 10 th January, 2018. In the meanwhile, there shall be stay of further proceedin gs. Issue notice to Attorney General of India also as the issue involves interpretation of a central statute. Mr. Amrendra Sharan, learned senior counsel is reques ted to assist the Court as amicus. Mr. Sharan will be at liber ty to have assistance of Mr. Amit Anand Tiwari, Advocate. … …” 3. Though certain facts are stated while framing the question already noted, some more facts may be noted. The appellant herein is the original accused in the case registered at City Police Station, Karad for the offences punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled Tribes (Pr evention 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. DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 4. The second respondent - the complainant is an employee of the department. He was earlier employed as a Store Keep er in the Government College of Pharmacy, Karad. He was later posted at Government Distance Education Institute, Pune. Dr. Satish Bhise and Dr. Kishor 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 Atrocitie s Act on 4 th January, 2006 on that ground. The concerned Investigating Officer applied for sanction under Section 197 Cr.P.C. against them to the Director of Technical Education on 21 st December, 2010. The sanction was refused by the appellant on 20 th January, 2011. Because of this, ‘C’ Summary Report was filed against Bhise and Burade which was not accepted by the court. He then lodged the present FIR against the appellant. According to the complainant, the Director of Technical Educa tion 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 28 th March, 2016 by illegally dealing with the matter of sanction. 5. The complaint is fully extracted below: “In the year 2009 I was working as store keeper in the Govt. Pharmacy College Karad, at that time I have registe red complaint to Karad City Police Station Cr. NO. 3122/09 u/s 3(1)9, 3(2)(7)6 of S.C. & S.T. (Prevention of Atrocities ) Act and the investigation was done by Shri Bharat Tangade, then D.Y.S.P . Karad division Karad in the investigation 1) Satish Balkrushna Bhise, then Principal Pharmacy College Karad, 2) Kishor Balkrishna Burade, then Professor, Pharma cy College Karad has been realized as accused in the pres ent crime. Investigation officer collect sufficient ev idence against both the accused, but both the accused are from Govt. Technical Education department Class 1 Public Servant, so before filing charge sheet against them he wrote the le tter to the senior office of the accused u/s 197 of Cr.P.C. to take the permission at that time Mr. Subhash Kashinath Mahajan was working as incharge director of the office. Tod ay also he is working as same post. Mr. Mahajan does not belongs to S.C. & S.T. but he knew that I belongs to S.C. and S.T. 895 In fact both the accused involved in crime No. 3122/09 a re working on class 1 post and to file a charge sheet ag ainst them the permission has to be taken according to Cr .P.C. Section 197. This fact known to Shri Mahajan and Mr . Mahajan knew that this office did not have such rig ht to give permission. So Mr. Mahajan send letter to Mumb ai Office. Infact to give the required permission or t o refuse the permission is not comes under the jurisdiction of inchar ge direction, Technical Education Mumbai. But, Mr. Mahaj an misused his powers so that, accused may be benefite d, he took the decision and refused the permission to file the charge sheet against the accused. So that, investigation officer Sh ri Bharat Tangade fails to submit the charge sheet against the both the accused, but he complain to submit ‘C’ summary report.” 6. 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. 7. Dealing with the contention that if such cases are not quashed, recording of genuine adverse remarks against an employee who is a member of SC/ST or passing a legitimate administrative order in discharge of official duties will become difficult and jeopardise the administration, the High Court observed 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. It was observed that in the facts and circumstances, inherent power to quash could not be exercised as it may send a wrong signal to the downtrodden and backward sections of the society. 8. We have heard Shri Amrendra Sharan, learned senior counsel, appearing as amicus, Shri Maninder Singh, learned Additional Solicitor General, appearing for the Union of India, Shri C.U. Singh, learned senior counsel and the other learned counsel appearing for the intervenors and learned counsel for the parties and perused the record. 9. We may refer to the submissions put forward before the Court: DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] Submissions of learned Amicus 10. Learned amicus submitted that in facts of the present case, no offence was made out under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Atrocities Act and Sections 182, 192, 193, 203 and 219 of the Indian Penal Code and, thus, the High Court ought to have quashed the proceedings. He submitted the following table to explain his point: Provisions of the SC/ ST Act invoked in this cas e Applicability o f the prov isions in the facts of the case 3. Punishment for offences atrocities. – 3 [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - (ix): gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe; The provision mandates a “false and frivolous information given by the public servant”, however in the present case, the Petitioner has denied sanction for prosecution which clearly does not amount to false or frivolous information. Thus, a case under Section 3(1)(ix) of the SC/ST Act is not made out. 3(2)(vi): knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence ; Section 3(2)(vi) requires causing of disappearance of evidence with the intention of screening the offender from legal punishment, however, in the present case, there is no allegation that the petitioner has caused disappearance of any evidence. Therefore the ingredients of Sections 3(2)(vi) is not made out. (vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence. Since no offence under section 3 of the SCST is made out this section cannot be attracted. Provisions of IPC alleged Applicability of the provisions in the facts of instant case 182. False information, w ith intent to cause public servant to A false information is an information which has been 897 Applicability o f the prov isions in The provision mandates a “false and frivolous information given by the public servant”, however in the , the Petitioner has denied sanction for prosecution which clearly does not amount to false or frivolous information. Thus, a case under Section 3(1)(ix) ST Act is not made out. Section 3(2)(vi) requires causing of disappearance of evidence with the intention of screening the offender from legal punishment, however, in ere is no allegation that the petitioner has caused disappearance of any evidence. Therefore the ingredients of Sections 3(2)(vi) is not made out. Since no offence under section 3 of the SCST is made out this section provisions A false information is an use his lawful power to the injury of another person. – Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant – (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. given deliberately with an intention to deceive. However, in this case denial of sanction for prosecution cannot be construed as a false information in any way. It is an order of administrative authority. Therefore no case is made out under Section 182 of the code. 192. Fabricating false evidence. –whoever causes any circumstance to exist or *[makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”. The ingredients of Section 192 IPC is not made out therefore this section will not apply in the present case. It was not a judicial proceeding and the petitioner has neither fabricated false evidence nor made any false entry in any book, record or electronic data. Mere exercising of administrative power cannot be construed as fabricating false evidence. DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 193. Punishment for false evidence. – Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, an shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable. Since there was no ‘false evidence’, therefore the possibility of punishment accruing to false evidence is ruled out. 203. Giving false information respecting an offence committed. – Whoever knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. For the reasons already stated hereinabove, the present case does not meet the ingredients of this section, therefore is precluded from being prosecuted here. A mere opinion of a senior officer in an ACR does not amount to giving false information. 219. Public servant in judicial proceeding corruptly making report, etc., contrary to law. – Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. The denial of sanction to prosecute the two government servants against whom the Complainant/ Respondent no. 2 had originally filed an FIR cannot be construed as making corrupt report therefore the case of the petitioner does not fall within the ambit of this provision. 899 11. It was submitted by learned amicus that FIR was lodged after five years of the order passed by the appellant. The order was passed on 20 th January, 2011 while the FIR was lodged on 28 th March, 2016 which further strengthened the case for quashing in addition to the facts and legal contentions noted in the previous para. Moreover, in absence of any allegation of malafides, even if order passed by the appellant was erroneous proceedings against him are not called for. 12. Learned amicus submitted that under the scheme of the Atrocities Act, several offences may solely depend upon the version of the complainant which may not be found to be true. There may not be any other tangible material. One sided version, before trial, cannot displace the presumption of innocence. Such version may at times be self serving and for extraneous reason. Jeopardising liberty of a person on an untried unilateral version, without any verification or tangible material, is against the fundamental rights guaranteed under the Constitution. Before liberty of a person is taken away, there has to be fair, reasona ble and just procedure. Referring to Section 41(1)(b) Cr.P.C. it was submitted that arrest could be effected only if there was ‘credible’ information and only if the police officer had ‘reason to believe’ that th e offence had been committed and that such arrest was necessary. Thus, the power of arrest should be exercised only after complying with the safeguards intended under Sections 41 and 41A Cr.P.C. It was submitted that the expression ‘reason to believe’ in Section 41 Cr.P.C. had to be read in the light of Section 26 IPC and judgments interpreting the said expression. The said expression was not at par with suspicion. Reference has been made in this regard to Joti Prasad versus State of Haryana 1, Badan Singh @ Baddo versus State of U.P. & Ors. 2, Adri Dharan Das versus State of West Bengal 3, Tata Chemicals Ltd. versus Commissioner of Customs 4and Ganga Saran & Sons Pvt. Ltd. versus Income Tax Officer & Ors. 5 In the present context, to balance the right of liberty of the accused guaranteed under Article 21, which could be taken away only by just fair and reasonable procedure and to check abuse of power by police and injustice to a citizen, exercise of right of arrest was required to be suitably regulated by way of guidelines by this Court under Article 32 read with Article 141 of the Constitution. Some Since there was no ‘false evidence’, therefore the possibility of punishment accruing to false evidence is For the reasons already stated hereinabove, the present case does not meet the ingredients of this section, therefore is precluded from being prosecuted here. A mere opinion of a senior officer in an ACR does not unt to giving false The denial of sanction to prosecute the two government nts against whom the Complainant/ Respondent no. 2 had originally filed an FIR cannot be construed as making corrupt report therefore the case of the petitioner does not fall within the ambit of this 1 1993 Supp (2) SCC 497 2 2002 CriLJ 1392 3 (2005) 4 SCC 303 4 (2015) 11 SCC 628 5 (1981) 3 SCC 143 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] filters were required to be incorporated to meet the mandate of Articles 14 and 21 to strengthen the rule of law. 13. Learned amicus submitted that this Court has gene rally acknowledged the misuse of power of arrest and directed that arrest should not be mechanical. It has been laid down that the e xercise of power of arrest requires reasonable belief about a pers on’s complicity and also about need to effect arrest. Reliance has be en placed on Joginder Kumar versus State of U.P. 6, M.C. Abraham versus State of Maharashtra 7, D. Venkatasubramaniam versus M. K. Mohan Krishnamachari 8, Arnesh Kumar versus State of Bihar 9 and Rini Johar & Ors. versus State of M.P. & Ors. 10 14. It was submitted that in the context of the Atrocities Act, in the absence of tangible material to support a version, to prevent exercise of arbitrary power of arrest, a preliminary enquiry may be made mandatory. Reasons should be required to be recorded that information was credible and arrest was necessary. In the case of public servant, approval of disciplinary authority should be obtained and in other cases approval of Superintendent of Police should be necessary. While granting such permission, based on a preliminary enquiry, the authority granting permission should be satisfied about credibility of the information and also about need for arrest. If an arrest is effected, while granting remand, the Magistrate must pass a speaking order as to correctness or otherwise of the reasons for which arrest is effected. These requirem ents will enforce right of concerned citizens under Articles 14 and 21 without in any manner affecting genuine objects of the Act. 15. Learned amicus further submitted that Section 18 o f the Atrocities Act, which excludes Section 438 Cr.P.C., violates constitutional mandate under Articles 14 and 21 and is ultra vires the Constitution. The said provision was upheld in State of M. P. versus Ram Krishna Balothia 11 but the said judgment was in ignorance of the Constitution Bench judgment in Gurbaksh Singh Sibbia etc. versus State of Punjab 12 . If a Court is not debarred from granting anticipatory bail 6 (1994) 4 SCC 260 7 (2003) 2 SCC 649 8 (2009) 10 SCC 488 9 (2014) 8 SCC 273 10 (2016) 11 SCC 703 11 (1995) 3 SCC 221 12 (1980) 2 SCC 565 901 even in most heinous offences including murder, rape, dacoity, robbery, NDPS, sedition etc., which are punishable with longer periods depending upon parameters for grant of anticipatory bail, taking away such power in respect of offences under the Act is discriminatory and violative of Article 14. Exclusion of court’s jurisdiction, even where the court is satisfied that arrest of a person was not called for, has no nexus with the object of the Atrocities Act. In this regard, reliance has been placed on following observations in Sibbia (supra). “10. Shri V.M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said that since the denial of bail amou nts to deprivation of personal liberty, courts should lean ag ainst the imposition of unnecessary restrictions on the s cope of Section 438, when no such restrictions are imposed by the legislature in the terms of that section. The learned Counsel added a new dimension to the argument by invoking Article 21 of the Constitution. He urged that Section 438 i s a procedural provision which is concerned with the perso nal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who m ust therefore be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairn ess and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restrict ion on the grant of anticipatory bail, such a restricti on could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 4 38, the court should not impose any unfair or unreasonable limitation on the individual’s right to obtain an o rder of anticipatory bail. Imposition of an unfair or unreaso nable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision. 13. … …The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to g rant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. …. DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 21. …. …A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. … 26. We find a great deal of substance in Mr. Tarkunde’ s submission that since denial of bail amounts to deprivatio n of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Se ction 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of h is application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infus ion of constraints and conditions which are not to be found i n Section 438 can make its provisions constitutionall y vulnerable since the right to personal freedom cann ot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in S ection 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitut ion, the procedure established by law for depriving a per son of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is o pen to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by r eading words in it which are not to be found therein.” 16. Reliance has also placed on recent judgment of this Court in Nikesh Tarachand Shah versus Union of India and Anr. 13 declaring Section 45 of the Prevention of Money Laundering Ac t, 2002 unconstitutional. This Court held that fetters on grant of bail under the said provision when such fetters were not applicable to other off ences punishable in like manners was discriminatory and against the principle of fair just and reasonable procedure. 13 (2017) 13 Scale 609, 2017 SCC OnLine SC 1355 903 Submissions of counsel for intervenor supporting the ap peal 17. Ms. Manisha T. Karia, counsel appearing for intervenor on behalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be victim of a false complaint, submitted that respondent No. 2 lodged a false FIR No. 3210 of 2017 dated 2 nd November, 2017 against her at Khadki police station alleging that she, in collusion with the appellant herein, pressurized respondent no. 2 to withdraw the FIR No.164 of 2016 registered wit h Karad Police Station and she falsely implicated respondent n o. 2 in a sexual harassment case. She is working as an Assistant Professor in the Department of Instrumentation and Control in College of Engineering, Pune since last eight years where respondent No. 2 was work ing as a storekeeper. She had made a complaint against him for her sexual harassment and as a reaction, the FIR was lodged by respondent No. 2 by way of the Atrocities Act. Her anticipatory bail application was rejected by the session court but the High Court, vide order dated 23 rd November, 2017, granted interim protection against arrest. Thereafter, respondent No. 2 initiated proceedings under Section 107 Cr.P.C. and the intervenor received notice dated 2 nd December, 2017 from the Magistrate. It was submitted that there was no safeguard against false implication, undue harassment and uncalled for arrest and thus, this Court must incorporate safeguards against unreasonable and arbitrary power of arr est in such cases without following just fair and reasonable procedure which may be laid down by this Court. Such requirement, it was submitted, w as implicit requirement of law but was not being followed. 18. Laying down safeguards to enforce constitutional guarantee under Article 21 was necessary in view of the Sixth Report dated 19 th December, 2014 of the Standing Committee on Social Jus tice and Empowerment (2014-15) on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 reject ing the stand of the Ministry to the effect that there was no need to provide for action against false or malafide implication under the Atrocities Act. It was observed therein:- “3.9 The Committee are not inclined to accept the contention of the Ministry that those who are found to be misusing the provisions of the Act can be tried as per normal law of t he land under the relevant sections of the IPC. The Committee are of the firm view that the PoA Act, being a special law, should be wholesome to the extent that it must contai n an DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] inbuilt provision for securing justice for those too who are falsely implicated with mala fide under it. More so, when the law makers have shown such perspicacity in addressing such issues/misgivings when they inserted clause 14 (Punishme nt for false or malicious complaint and false evidence) in ‘The Sexual Harassment of women at Workplace (Prevention , Prohibition and Redressal) Act, 2013.” 19. Thus, unless this Court laid down appropriate guidelines, there will be no protection available against arbitrary a rrests or false implications in violation of Article 21 of the Constitution. The intervenor submitted that preliminary enquiry must be held before arrest with regard to the following factors: “a. Date and time of the incident and provocation. b. Preexisting dispute between the parties or rivalry. c. Gravity of the issue involved. d. Nature of allegations by both the parties. e. Necessary documents and evidence by the victim an d accused to substantiate their case to be placed befor e committee. f. The proceedings may be recorded to avoid allegations of bias and non-transparency.” 20. The following further safeguards have been suggested by the counsel for the intervenor: “Arrest specifically in connection with offences under POA Act should only be made with the prior sanction of the Magistrate. However this may not apply in case arrest h as to be made in connection with other offences under IPC. Further the gravity of offence also needs to be seen s ince most of the cases at the institutional level are onl y on the basis of mere altercations or action by the public servants in their official capacity. Secondly if the Accused under the POA Act surrenders with prior notice to the Public Prosecutor, then his bail Application should be considered on the same day and if not the regular bail, then at the least interim bail should be granted in th e 905 interest of justice. This requirement may be read into Sec tion 18 of the POA Act.” 21. In support of the submission that courts have acknowledged the misuse of law, reliance has also been placed on the following Judgments: (i) Judgment of the Madras High Court in Jones versus State 14 wherein the High Court observed: “This Court recently has brought to light the misuse of the Scheduled Castes and the Scheduled Tribes (Preventi on of Atrocities) Act, 1989 against people of other community. This is another example of misuse of the Act. The purpos e of bringing SC & ST Act is to put down the atrocities committe d on the members of the scheduled castes and scheduled tribes. The law enforcing authorities must bear in mind tha t it cannot be misused to settle other disputes between the parties, which is alien to the provisions contemplated under the Act. An Act enacted for laudable purpose can also become unreasonable, when it is exercised overzealously by the enforcing authorities for extraneous reasons. It is for the authorities to guard against such misuse of power confe rred on them.” (ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs. State of Gujarat 15 observing : “But then having closely examined the complaint mor e particularly in the context and light of the backdrop o f the peculiar facts situation highlighted by the petitioner leading ultimately to filing of the complaint, this Court prim e facie at the very outset is at some doubt about the complainant’ s story and yet if it readily, mechanically like a gullible c hild accepts the allegations made in the complaint at it s face value, it would be surely blundering and wandering away from the path of bail-justice, making itself readily availabl e in the hands of the scheming complainant who on mer e asking will get arrested accused on some false allegat ions of having committed non-bailable offence, under the Atrocity 14 2004 SCC OnLine Mad 922 : 2004 CriLJ 2755 15 (1997) 2 GLR 942 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] Act, meaning thereby the Court rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary prudence with no perception for justice, denying the rig htful protection to the accused becoming ready pawn pliab le in the hands of sometime scheming, unscrupulous complainants !!! This sort of a surrender to prima facie doubtful allegation in the complaint is not at all a ju dicial approach, if not unjudicial !! At the cost of repetition , 1 make it clear that these observations are only preliminary, at this stage only in peculiar background of the case highl ighted by petitioner-accused and for that purpose may be even in future be so highlighted by the accused in some other cases to the satisfaction of the Court ! The reason is having regar d to the basic cardinal tenets of the criminal jurisp rudence more particularly in view of the peculiar circumsta nces highlighted by the accused which allegedly actuated complainant to victimise him, in case if ultimately at the end of trial what the accused has submitted in defence is accept ed as probable or true and as a result, the accused is giv en a clean bill, holding that the complaint was nothing els e but false, concoction by way of spite to wreck the pers onal vengeance then in that case what indeed would be th e remedy and redresses in the hands of the petitioner, who in the instant case is Doctor by profession and for that purpos e in other cases an innocent citizen? He stands not o nly stigmatised by filing of a false complaint against him but he shall stand further subjected to trial !! Not only that but before that even subjected to arrest before the public eye and taken to Special Court where only he could pray for bail ! Th us, subjected to all sort of agonies, pains and sufferings lowe ring his image and esteem in the eye of public because the Court when approached adopted the helpless attitude? Under such bewildering circumstances, what indeed would be the fa ce of the Court and the fate of the Administration of Justice denying bail to some victimised innocent accused at cruci al stage when he surrenders to the Court custody for t he purpose?!! Should the Court proclaiming doing justice stand befooled at the hands of some mischievous complainant with head-down in shame !! Supposing for giving false evidence 907 before the Court, the complainant is ordered to be prosecuted, but then will such prosecutions of compla inant bring back the damage already done to an innocent ! ! Bearing in mind this most embarrassing and excruciatin g situation created by the complainant when, this Court a s a Constitutional functionary is duty bound to zealously protect the liberty of citizen, should it be helplessly watch ing and passively surrendering itself to sometimes prima fa cie ex- facie malicious complaint denying simple bail to the accused? In this regard, perhaps, it may be idly said that accused c an be given compensation for the malicious prosecution a nd ultimate refusal of bail or anticipatory bail !! True, but then in that case what compensation can any Court would be in a position to give when the complainant is a person who is poor enough unable to pay a single pie?!! Not only that b ut in case complainant is rich and able to pay compensation then even can any monetary compensation ever adequate ly compensate the wrong accused suffered at the hands of th e malicious complainant? It is here that the conscience of thi s Court stands pricked and terribly perturbed and indeed will have a sleepless night if what ought we do not know where the petitioner, in the facts and circumstances of the ca se be quite innocent and accordingly a needy consumer of b ail justice and yet is unnecessarily subjected to arrest ta ken to the police custody and then before Court because of denial of bail to him at this stage !! ” (iii) Dealing with the same issue, the Gujarat High Court in Dhiren Prafulbhai Shah versus State of Gujarat 16 observed as under: “48. In the course of my present sitting, I have come across various cases wherein the provisions of Atrocities Act are misused. I find that various complaints are filed immediatel y after elections, be it Panchayat, Municipal or Corpora tion, alleging offence under the Atrocities Act. I have no hesitat ion in saying that in most of the cases, it was found t hat the F .I.R.s/Complaints were filed only to settle the score with their opponents after defeat in the elections. I have als o come across various cases, wherein, private civil disputes ar ising 16 2016 CriLJ 2217 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] out of property, monetary matters, dispute between an employee and employer, dispute between the subordinate and his superior - are given penal and the complaints are being filed either under Section 190 r/w. 200 or F .I.Rs. at the police station. The matter in hand is one another example of misuse of the Act. As observed by me earlier, the purpose of bri nging SC and ST Act is to put-down the atrocities committed on the members of the Scheduled Castes and Scheduled Tribes. The law enforcing authorities must bear in mind that it cannot be misused to settle other disputes between the partie s like the case one in hand, which is alien to the provisi ons contemplated under the laudable Act. An Act enacted for laudable purpose can also become unreasonable, when it is exercised over-zealously by the enforcing authoriti es for extraneous reasons. It is for the authorities to guard agains t such misuse of power conferred on them. 49. Passing mechanically orders by the Court of Magistrates in complaint and/or registration of the F.I.R. at the Police Station, which do not have any criminal element, causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons the reputation of the citizen is put to stake as immediately after the said orders are pass ed, innocent citizens are turned as accused. One should not overlook the fact that there is Section-18 in the A trocities Act, which imposes a bar so far as the grant of anticipator y bail is concerned, if the offence is one under the Atroci ties Act. If a person is accused having committed murder, dacoity, rape, etc., he can pray for anticipatory bail under Sect ion- 438 of the Cr.P .C. on the ground that he is innocent and has been falsely involved, but if a person alleged to h ave committed an offence under the Atrocities Act, cannot pr ay for an anticipatory bail because of the bar of Section-18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provision s of the Atrocities Act.” (iv) Judgment of Gujarat High Court in Pankaj D Suthar versus State of Gujarat 17 observing: 17 (1992)1 GLR 405 909 “4. … But then, what according to this Court is the most welcome step by way of collective wisdom of the Parliamen t in ushering social beneficial legislation cannot be permit ted to be abused and converted into an instrument to blackmail to wreak some personal vengeance for settling and scorin g personal vendetta or by way of some counter-blasts again st opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are-Whether a torch which is lighted to dispel the darkness can it be permitted to se t on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by u sing the same in the course of operation by a surgeon, can i t be permitted to be used in taking the life of some innocent? The very same fundamental question arises in the facts and circumstances of this case also, viz., ‘whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon o f wrecking personal vengeance on the opponents? ’ The answer to this question is undoubtedly and obviously ‘No’. Under such circumstances, if the Courts are to apply s uch provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some genera l and popular prejudices based on some words and tric ky accusations in the complaint on mere assumptions witho ut intelligently scrutinising and testing the probabil ities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simp ly unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice . Virtually, it would be tantamount to abdicating and relegating its judicial duty, function of doing justice in such matters in favour and hands of such unscrupulous complainant b y making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpos e the rules made thereunder are applicable to the facts o f a DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the doma in of ‘judicial consideration-discretion’ and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial func tion- duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision.” (v) Judgment of Bombay High Court in Sharad versus State of Maharashtra 18 observing : “12. We hasten to add that such type of complaints for rampant misuse of the provisions of Section 3(1)(x) of t he Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, are largely being filed part icularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests. We think the learned Members of the Bar have enormous social responsibility and obligation to ensure that the social fabri c of the society is not damaged or ruined. They must ensure that exaggerated versions should not be reflected i n the criminal complaints having the outrageous effect of independence of judicial and quasi judicial authoritie s so also the public servants. We cannot tolerate putting th em in a spooked, chagrined and fearful state while perfor ming their public duties and functions. We also think that a serious re-look at the provisions of the Act of 1989 which are being now largely misused is warranted by the Legislature , of course, on the basis of pragmatic realities and public opinion. A copy of this Judgment is directed to be sent to the Law Commission for information.” 22. It was, thus, submitted that above judgments are mere ly illustrations to show that the abuse of law was ram pant. If mere accusations are treated as sufficient, it may unfairly damage the personal and professional reputation of a citizen. There is a need to balance the societal interest and peace on the one hand and the protection of rights of victims of such false allegations on the other. If allegations are against 18 2015(4) BomCR(Crl) 545 911 an employee, a committee should be formed in every departme nt as follows:- “i. The employer or Head of every institution may b e directed to constitute an internal committee to look into the matters and specific grievances related to atro cities committed on the members of SC/ST. ………….. ii. That before proceeding to lodge any FIR or crimin al complaint, a written complaint should made to the internal committee of the institution along with supportive evide nce. iii. Such committee may be given the power to conduct a preliminary inquiry into the matter by hearing both the parties and other evidence, so as to ascertain the existe nce of a prima facie case under the POA Act.” 23. It has been further suggested that Magistrate must verify the averments in a Complaint/FIR to ascertain whether a prima facie case is made out and whether arrest was necessary and only then arrest should be made or continued. 24. It is further submitted by the counsel for the intervenor that the Atrocities Act is also prone to misuse on account of monetary incentive being available merely for lodging a case under Rule 12(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules , 1995. Such incentive may encourage not only genuine victims but, there being no safeguard even against a false case being registered only to get the monetary incentive, such false cases may be filed without any remedy to the affected person. 25. Reference has also been made to Annual Report 2016-2017 of the Ministry of Social Justice and Empowerment and data compiled by the Government of Maharashtra for the years 1990 to 2013 (dat ed 30 th April, 2013) in respect of offences registered under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Protection of Civil Rights Act, 1955 against Maharashtra Members of Parliament, Member of Legislative Assembly, Zill Parishad Adhyaksha, Gramsevak, Talathi, B.D.O., Collector, Palakmantri, Chief Minister, Home Minister, IPS, IAS, IRS, IFS, MNP Commissioner, MNP Assistant Commissioner, other Government Officer/Servant, other non-Government Offi cers/ Servants (numeric data prepared on the basis of information available). DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 26. As per data (Crime in India 2016 – Statistics) compiled by the National Crime Records Bureau, Ministry of Home Affa irs under the headings “ Police Disposal of Crime/Atrocities against SCs cases (State/UT-wise)-2016 ” (Table 7A.4) and “ Police Disposal of Crime/ Atrocities against STs Cases (State/UT-wise) – 2016” (Table 7C.4) it is mentioned that in the year 2016, 5347 cases were found to be false cases out of the investigated out of SC cases and 912 were found to be false cases out of ST cases. It was pointed out that i n the year 2015, out of 15638 cases decided by the courts, 11024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4119 cases resulte d in conviction. ( Reference : Annual Report 2016-2017 published by the Department of Social Justice & Empowerment, Ministry of Social Justice and Empowerment, Government of India). Interventions against the appellant 27. Intervention application has also been filed by one Ananda Sakharam Jadhav who claims to be convenor of the Bahujan Karmachari Kalyan Sangh. Shri C.U. Singh, learned senior counsel appearing for the said intervenor, submitted that where law is clear no guideline should be issued by the Court. Reliance has been placed on State of Jharkhand and Anr. Versus Govind Singh 19 and Rohitash Kumar and Ors versus Om Prakash Sharma and Ors. 20 It was submitted that this Court could not lay down guidelines in the nature of legislation. 28. Shri C.U. Singh submitted that the Section 18 of the Atrocities Act has already been upheld in Balothia (supra) and Manju Devi versus Onkarjit Singh Ahluwalia 21 . He also relied upon Statement of Objects and Reasons of the Scheduled Castes and the Schedul ed Tribes (Prevention of Atrocities) Amendment Bill, 2013 dated 14 th July, 2014. Therein it is stated that there are procedural hurdl es such as non- registration of cases, procedural delays in investigation, arrests and filing of charge-sheets and delays in trial and low conviction rate on account of which in spite of deterrent provisions, atrocities against SC/ST continues at disturbing level which necessitated amendment in the Act. 29. Further intervention has been sought by one Yogendra Mohan Harsh. Learned counsel for the said intervenor submitted that atrocities 19 (2005)10 SCC 437 20 (2013)11 SCC 451 21 (2017) 13 SCC 439 913 against SCs and STs are increasing and if submissions of amicus are to be accepted, the Act will be rendered ineffective and teethless. Submissions of learned Additional Solicitor General (ASG ) 30. Learned ASG submitted that in view of decisions in Balothia (supra) and Manju Devi (supra) there is no occasion to go into the issue of validity of provisions of the Atrocities Act. He also sub mitted that decisions of this Court in Vilas Pandurang Pawar and Anr. versus State of Maharashtra and Ors. 22 and Shakuntla Devi versus Baljinder Singh 23 permit grant of anticipatory bail if no prima facie case is made out. Thus, in genuine cases anticipatory bail can be granted. He also submitted that the Government of India had issued advisories on 3rd February, 2005, 1 st April, 2010 and 23 rd May, 2016 and also further amended the Atrocities Act vide Amendment Act No. 1 of 2016 which provides for creation of Special Courts as well as Excl usive Special Courts. Referring to the data submitted by the National Crime Records Bureau (NCRB) it was further submitted that out of the total number of complaints investigated by the police in the year 2015, both for the persons belonging to the SC category and also belonging to the ST category, in almost 15-16% cases, the competent police authorities had filed closure reports. Out of the cases disposed of by the courts in 2015, more than 75% cases have resulted in acquittal/withdrawal or compounding of the cases. It was submitted that certain complaints were received alleging misuse of the Atrocities Act and a question was also raised in Parliament as to what punishment should be given against false cases. The reply given was that awarding punishment to members of SCs and ST s for false implication would be against the spirit of the Act. A press statement dated 19 th March, 2015 was issued by the Central Government to the effect that in case of false cases, relevant Sections of IPC can be invoked. It was submitted that no guideline should be laid down by this Court which may be legislative in nature. Consideration of the issue whether directions can be is sued by this Court to protect fundamental right under Article 21 against uncalled for false implication and arrests 31. We may, at the outset, observe that jurisdiction of this Court to issue appropriate orders or directions for enforcement of fundamental 22 (2012) 8 SCC 795 23 (2014) 15 SCC 521 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] rights is a basic feature of the Constitution. This Court, as the ultimate interpreter of the Constitution, has to uphold the constitutional rights and values. Articles 14, 19 and 21 represent the foundational values which form the basis of the rule of law. Contents of the said rights have to be interpreted in a manner which enables the citizens to enj oy the said rights. Right to equality and life and liberty have to be protected against any unreasonable procedure, even if it is enacted by the legislature. The substantive as well as procedural laws must conform to Articles 14 and 21. Any abrogation of the said rights has to be nullified by this Court by appropriate orders or directions. Power of the legisla ture has to be exercised consistent with the fundamental rights. Enforcement of a legislation has also to be consistent with the fund amental rights. Undoubtedly, this Court has jurisdiction to enforce the fundamental rights of life and liberty against any executive or legislative action. The expression ‘procedure established by law’ under Article 21 implies just, fair and reasonable procedure 24 . 32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights 25 . There are enumerable decisions of this Court where this approach has been ado pted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such dir ections can certainly be issued and continued till an appropriate legislation is enacted 26 . Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict w ith a valid statute 27 . Power to declare law carries with it, within the limits of duty, to make law when none exists 28 . 33. Constitution Bench of this Court in Union of India versus Raghubir Singh 29 , observed : 24 Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 t o 85 25 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, par a 13 26 Vishakha versus State of Rajasthan (1997) 6 SCC 24 1, para 16; Lakshmi Kant Pandey v. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756 27 Supreme Court Bar Asson. V. UOI (1998) 4 SCC 409, para 48 28 Dayaram vs. Sudhir Batham (2012) 1 SCC 333, para 1 8 29 (1989(2) SCC 754 915 “7. … It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulat ing the functions of the State flows from the decisions of the sup erior Courts. “There was a time,” observed Lord Reid, “When i t was thought almost indecent to suggest that Judges make law - They only declare it.... But we do not believe in fairl y tales any more.” “The Judge as Law Maker”, p. 22. I n countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the constitutional structure of the State, the role pl ayed by judicial law-making is limited. In the first place the function of the Courts is rest ricted to the interpretation of laws made by Parliament, and the Courts have no power to question the validity of Parliamen tary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful. In the se cond place, the law enunciated in every decision of the Courts i n England can be superseded by an Act of Parliament. As Cockburn C.J. observed in Exp. Canon Selwyn (1872) 36 JP Jo 54: There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An act of the Legislature is superior in authority to any Court of L aw. And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All ER 779 referred to a Parliamentary statute as “the highest form of law...which prevails over every other form of law .” The position is substantially different under a written Constit ution such as the one which governs us. The Constitution of India , which represents the Supreme Law of the land, envis ages three distinct organs of the State, each with its own disti nctive functions, each a pillar of the State. Broadly, while Parliament and the State Legislature fin India enact the law and the Executive Government implements it , the judiciary sits in judgment not only on the implementation of the law by the Executive but also on the validity o f the Legislation sought to be implemented One of the func tions of the superior judiciary in India is to examine th e DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] competence and validity of legislation, both in poi nt of legislative competence as well as its consistency w ith the Fundamental Rights. In this regard, the Courts in I ndia possess a power not known to the English Courts. Where a statute is declared invalid in India it cannot be rei nstated unless constitutional sanction is obtained therefor e by a constitutional amendment of an appropriately modifi ed version of the statute is enacted which accords wit h constitutional prescription. The range of judicial, review recognised in the sup erior judiciary of India is perhaps the widest and the most extensive known to the world of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustai ned which [violates the basic structure of the Constituti on. See Kesavananda Bharati Sripadagalayaru v. State of Ker ala AIR1973SC1461), Smt. Indira Nehru. Gandhi v. Raj Narain [1976]2SCR347], Minerva Mills Ltd. v. Union of Indi a [1981]1SCR206] and recently in S. P. Sampath Kumar v. Union of India [(1987)ILLJ128SC]. With this impress ive expanse of judicial power, it is only right that the s uperior Courts in India should be conscious of the enormous responsibility which rests on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on« all Courts within the territory of India.” 34. The law has been summed up in a decision in Rajesh Kumar versus State 30 as follows: “62. Until the decision was rendered in Maneka Gand hi (supra), Article 21 was viewed by this Court as rar ely embodying the Diceyian concept of rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of hi s life or personal liberty. In this connection, if we ref er to the example given by Justice S.R. Das in his judgment i n A.K. 30 (2011) 13 SCC 706 917 Gopalan (supra) that if the law provided the Bishop of Rochester ‘be boiled in oil’ it would be valid under Articl e 21. But after the decision in Maneka Gandhi (supra) which marks a watershed in the development of constitutional law in our country, this Court, for the first time, took the view that Article 21 affords protection not only against the executive action but also against the legislation w hich deprives a person of his life and personal liberty unless the law for deprivation is reasonable, just and fair. and it was held that the concept of reasonableness runs like a g olden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The procedure for depriving a person of hi s life and personal liberty must be eminently just, reasonable and fair and if challenged before the Court it is for the Court to determine whether such procedure is reasonable, just and fair and if the Court finds that it is not so, the C ourt will strike down the same.” 35. Apart from the above, there are enumerable occasions when this Court has issued directions for enforcement of fundamental rights e.g., directions regarding functioning of caste scrutiny Commit tee 31 ; directions to regulate appointment of law officers 32 ; directions to regulate powers of this Court and High Courts in designating Senior Advocates 33 ; guidelines have been issued for the welfare of a child accompanying his/ her mother in imprisonment 34 ; directions for checking trafficking of women and children 35 ; for night shelters for the homeless 36 ; directions to check malnutrition in children 37 ; directions to provide medical assistance by Government run hospitals 38 ; directions for protection of human rights of prisoners 39 ; directions for speedy trial of under trials 40 . The list goes on. 31 Madhuri Patil v. Tribal Development (1994) 6 SCC 2 41 32 State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1 33 Indira Jaising versus Supreme Court of India (2017 ) 9 SCC 766 34 R.D. Upadhyay versus State of A.P. (2007) 15 SCC 3 37 35 Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1 36 Union for Civil Liberties versus UOI (2010)5 SCC 3 18 37 People’s Union for Civil Liberties versus UOI (200 4) 12 SCC 104 and (2010) 15 SCC 57 38 Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4 SCC 37 39 Sunil Batra versus Delhi Admn. (1978) 4 SCC 494 40 Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 36. Issuance of directions to regulate the power of arrest has also been the subject matter of decisions of this Court. In Joginder Kumar versus State of U.P. 41 , this Court observed that horizon of human rights is expanding. There are complaints of violation of human rights because of indiscriminate arrests. The law of arrest is of balancing individual rights, liberties and privileges, duties, obligations and responsibilities. On the one side is the social need to check a crime, on the other there is social need for protection of liberty, op pression and abuse by the police and the other law enforcing agencies. This Court noted the 3 rd Report of the National Police Commission to the effect that power of arrest was one of the chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arr est could be justified only in grave offences to inspire the confidence of the victim, to check the accused from committing further crime and to pr event him from absconding. The National Police Commission recommended that the police officer making arrest should record reason s. This Court observed that no arrest can be made merely because it is l awful to do so. The exercise of power must be for a valid purpose. Except in heinous offences arrest must be avoided. This requirement was read into Article 21 42 . In Arnesh Kumar versus State of Bihar 43 , this Court observed that arrest brings humiliation, curtails freedom and casts scars forever. It is considered a tool for harassment and oppression. The drastic power is to be exercised with caution. Power of arrest is a lucrative source of corruption. Referring to the amendment of law in Section 41 Cr.P.C., in the light of recommendations of the Law Commissions, it was directed that arrest may be justified only if there is ‘credibl e information’ or ‘reasonable suspicion’ and if arrest was necessary to pre vent further offence or for proper investigation or to check interference with the evidence. Reasons are required to be recorded. However, compliance on the ground is far from satisfactory for obvious reasons. The scrutiny by the Magistrates is also not adequate. This Court issued the following directions: “11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions: 41 (1994) 4 SCC 260 42 Para 21 43 (2014) 8 SCC 273 919 11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention ; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording it s satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be institut ed before the High Court having territorial jurisdiction . 11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriat e High Court.” DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 37. In D.K. Basu versus State of W.B .44 , this Court, to check abuse of arrest and drastic police power, directed as follows: “35. We, therefore, consider it appropriate to issue th e following requirements to be followed in all cases of arres t or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest an d handling the interrogation of the arrestee should b ear accurate, visible and clear identification and name tags with their designations. The particulars of all such pol ice personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of t he arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one wit ness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arres t is made. It shall also be countersigned by the arrestee an d shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interr ogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable , that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of ar rest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next frie nd or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District an d the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 44 (1997) 1 SCC 416 921 (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particul ars of the police officials in whose custody the arreste e is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and mi nor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arr est and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of appro ved doctors appointed by Director, Health Services of the Sta te or Union Territory concerned. Director, Health Serv ices should prepare such a panel for all tehsils and distr icts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Il laqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at al l district and State headquarters, where information regardin g the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, withi n 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice boar d. 36. Failure to comply with the requirements hereinabov e mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable t o be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of t he country, having territorial jurisdiction over the matt er. DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] 37. The requirements, referred to above flow from Artic les 21 and 22(1) of the Constitution and need to be str ictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.” 38. In Rini Johar (supra) this Court considered the issue of wrongful arrest and payment of compensation. It was observe d that wrongful arrest violates Article 21 of the Constitution and thus the victim of arrest was entitled to compensation. This Court noted the observations and guidelines laid down against wrongful arrests in Joginder Kumar (supra), D.K. Basu (supra), Arnesh Kumar (supra) and other cases and held that since the arrest is in violation of guidelines laid down by this Court and is violative of Article 21, the person arrested was entitled to compensation. 39. In Subramanian Swamy versus UOI 45 , this Court considered the issue of validity of provisions creating defamation as an offence. In the course of said judgment, need for harmony in competing claims of different interests was considered. This Court obse rved that the fundamental rights are all parts of an integrated sc heme and their waters must mix to constitute grand flow of impartial just ice 46 . This Court also observed that legislation should not invade the rights and should not smack of arbitrariness. Considering the principles of reasonableness, this Court observed that ultimate impact of rights has to be determined. This was different from abuse or misuse of legislation. Proportionality of restraint has to be kept in mind while determining constitutionalit y. Concept of public interest and social interest determine the needs of the society 47 . After referring to Maneka Gandhi (supra), it was observed that it is the duty of this Court to strike a balance in the right of speech and right to protect reputation 48 . The restriction of law should be rational and connected to the purpose for which it is necessary. It should not be arbitrary or excessive 49 . 40. Again this Court in Siddharam Satlingappa Mhetre versus State of Maharashtra 50 laid down parameters for exercise of discretion 45 (2016) 7 SCC 221 46 Para 137 47 Para 130 48 Para 144 49 Para 194 and 195 50 (2011) 1 SCC 694 923 of anticipatory bail having regard to the fundamental right of liberty under Article 21 of the Constitution and the needs of the society where such liberty may be required to be taken away. It was observed: “Relevance and importance of personal liberty 36. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The im portance of these natural rights can be found in the fact tha t these are fundamental for their proper existence and no other righ t can be enjoyed without the presence of right to lif e and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning an d the life itself would not be worth living. That is why “libert y” is called the very quintessence of a civilised existence . … 52. The fundamental rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to L ife and Liberty is not fulfilled as desired by the Framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclus ion of a chapter in the Constitution is in accordance with the tre nds of modern democratic thought. The object is to ensure the inviolability of certain essential rights against p olitical vicissitudes. … 54. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a n atural phenomenon of every human being. Respect for life, lib erty and property is not merely a norm or a policy of the State but an essential requirement of any civilised society. 64. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is reposi tory of all human rights essential for a person or a citizen. A fruitful and meaningful life presupposes life full of dignity, h onour, health and welfare. In the modern “Welfare Philosophy”, it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While invo king the provisions of Article 21, and by referring to the o ftquoted statement of Joseph Addison, “Better to die ten tho usand DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] deaths than wound my honour”, the Apex Court in Khedat Mazdoor Chetna Sangath v. State of M.P . (1994) 6 SCC 260 posed to itself a question “If dignity or honour va nishes what remains of life?” This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its Third Part. … International Charters Universal Declaration of Human Rights, 1948 80. Article 3 of the Universal Declaration says: “3. Everyone has the right to life, liberty and securi ty of person.” Article 9 provides: “9. No one shall be subjected to arbitrary arrest, detention or exile.” Article 10 says: “10. Everyone is entitled in full equality to a fair a nd public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” [As to its legal effect, see M. v. United Nations & Belgium (1972) 45 Inter LR 446 (Inter LR at pp. 447, 451.)] 86. According to the Report of the National Police Commission, when the power of arrest is grossly abused a nd clearly violates the personal liberty of the people , as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the b ail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adheri ng to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court. 87. The complaint filed against the accused needs to b e thoroughly examined including the aspect whether th e 925 complainant has filed a false or frivolous complain t on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolou s, then strict action will be taken against him in accordan ce with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with l aw. 88. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have le d to the arrest of the accused in the case diary. In exceptional case s the reasons could be recorded immediately after the arres t, so that while dealing with the bail application, the re marks and observations of the arresting officer can also be prop erly evaluated by the court. 89. It is imperative for the courts to carefully and w ith meticulous precision evaluate the facts of the case . The discretion must be exercised on the basis of the ava ilable material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make a ny distinction between arrest at a pre-conviction stage or po st- conviction stage. 110. The Law Commission in July 2002 has severely criticised the police of our country for the arbitrary use of p ower of arrest which, the Commission said, is the result of t he vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no inter nal mechanism within the Police Department to prevent misus e of law in this manner and the stark reality that co mplaint DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] lodged in this regard does not bring any result. Th e Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from var ious quarters. Reference is made in this article to the 41st Re port of the Law Commission wherein the Commission saw “no justification” to require a person to submit to custody, re main in prison for some days and then apply for bail even when there are reasonable grounds for holding that the p erson accused of an offence is not likely to abscond or otherw ise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind th ese sentiments and spirit of the judgments of this Court in Sibb ia case (1980)2 SCC 565 and Joginder Kumar v. State of U.P.(1994)4 SCC 260. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’ s likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the 927 accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck betwe en two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustifi ed detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuinenes s that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresti ng the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire avail able record and particularly the allegations which have been directly attributed to the accused and these allegatio ns are corroborated by other material and circumstances on record. 114. These are some of the factors which should be take n into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is dif ficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after considerati on of the entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken ca re of. The legislature in its wisdom has entrusted the pow er to DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] exercise this jurisdiction only to the Judges of the su perior courts. In consonance with the legislative intentio n we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available. Irrational and indiscriminate arrests are gross violation of human rights 115. In Joginder Kumar case (supra) a three-Judge Bench of this Court has referred to the 3rd Report of the Nat ional Police Commission, in which it is mentioned that the quality of arrests by the police in India mentioned the power of arre st as one of the chief sources of corruption in the police. The Report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that s uch unjustified police action accounted for 43.2% of th e expenditure of the jails. 116. Personal liberty is a very precious fundamental rig ht and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances o f the case. 117. In case, the State considers the following suggest ions in proper perspective then perhaps it may not be necess ary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive: (1) Direct the accused to join the investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the fixed deposit receipts/share certificates of the accus ed. (3) Direct the accused to execute bonds. (4) The accused may be directed to furnish sureties of a number of persons which according to the prosecution are necessary in view of the facts of t he particular case. 929 (5) The accused be directed to furnish undertaking that he would not visit the place where the witness es reside so that the possibility of tampering of eviden ce or otherwise influencing the course of justice can be avoided. (6) Bank accounts be frozen for small duration during the investigation. 118. In case the arrest is imperative, according to the fact s of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused bef ore the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting off icer. 119. Exercise of jurisdiction under Section 438 CrPC is an extremely important judicial function of a Judge and must be entrusted to judicial officers with some experie nce and good track record. Both the individual and society have vital interest in orders passed by the courts in anticipatory bail applications. 120. It is imperative for the High Courts through its judic ial academies to periodically organise workshops, symposiums, seminars and lectures by the experts to sensitise j udicial officers, police officers and investigating officer s so that they can properly comprehend the importance of perso nal liberty vis-à-vis social interests. They must learn to ma intain fine balance between the personal liberty and the social interests” 41. It is, thus, too late in the day to accept an objection that this Court may not issue any direction which may be perceived to be of legislative nature even if it is necessary to enforce fundamental rights under Articles 14 and 21 of the Constitution. Further consideration of potential impact of working of Atrocities Act on spreading casteism 42. In the light of submissions made, it is necessary to expre ss concern that working of the Atrocities Act should not result in perpetuating DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] casteism which can have an adverse impact on integration of the society and the constitutional values. Such concern has also been expressed by this Court on several occasions. Secularism is a basic fea ture of the Constitution. Irrespective of caste or religion, the Constitution guarantees equality in its preamble as well as other provisions including Articles 14- 16. The Constitution envisages a cohesive, unified and casteless society. 43. Dr. B. R. Ambedkar, in his famous speech on 25 th November, 1949, on conclusion of deliberations of the Constituent Assembly, stated: “These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty canno t be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced f rom fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, libert y and equality could not become a natural course of things. It would require a constable to enforce them. …. … … … … … … … In India there are castes. The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they gene rate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nati on in reality. For fraternity can be a fact only when there is a nation. Without fraternity, equality and liberty wi ll be no deeper than coats of paint.” 44. In Indra Sawhney and Ors versus Union of India and Ors. 51 this Court observed: “339. Secularism is the basic feature of the Indian Constitution. It envisages a cohesive, unified and ca steless society. The Constitution has completely obliterated the cas te system and has assured equality before law. Referen ce to caste under Articles 15(2) and 16(2) is only to obliterate it. 51 1992 Supp(3) SCC 217 931 The prohibition on the ground of caste is total, the mandate is that never again in this country caste shall raise its hea d. Even access to shops on the ground of caste is prohib ited. The progress of India has been from casteism to egalitarianism — from feudalism to freedom. 340. The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly head in various forms. Caste poses a serious threat to t he secularism and as a consequence to the integrity of the country. Those who do not learn from the events of histor y are doomed to suffer again. It is, therefore, of ut most importance for the people of India to adhere in let ter and spirit to the Constitution which has moulded this c ountry into a sovereign, socialist, secular democratic republic and has promised to secure to all its citizens justice, social, economic and political, equality of status and of opportunity.” 45. In the Report of the National Commission to Review the Working of the Constitution one of the failures of the working of the Constitution noted was that the elections continued to be fought on caste lines. The said observations have been quoted in People’s Union for Civil Liberties (PUCL) and Anr. Etc. versus Union o f India and Anr. 52 as follows: “20. It is to be stated that similar views are expressed in t he Report submitted in March 2002 by the National Commission to Review the Working of the Constitution appointed by the Union Government for reviewing the working of the Constitution. Relevant recommendations are as under: “Successes and failures 4.4. During the last half-a-century, there have bee n thirteen general elections to the Lok Sabha and a m uch large number to various State Legislative Assemblies. We can take legitimate pride in that these have been succes sful and generally acknowledged to be free and fair. But, the experience has also brought to the fore many distortion s, 52 (2003)4 SCC 399 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] some very serious, generating a deep concern in man y quarters. There are constant references to the unhealthy role of money power, muscle power and mafia power and to criminalisation, corruption, communalism and casteism.” 46. The speech of the then Prime Minister Shri Atal B ehari Vajpayee on this aspect was also noted in para 48 of the above judgment which is as follows: “Mr Divan in course of his arguments, had raised s ome submissions on the subject — ‘Criminalisation of Poli tics’ and participation of criminals in the electoral pro cess as candidates and in that connection, he had brought t o our notice the order of the Election Commission of India dated 28-8-1997. … — ‘Whither Accountability’, published in The Pioneer, Shri Atal Behari Vajpayee had called for a national debate on all the possible alternatives for systematic cha nges to cleanse our democratic governing system of its p resent mess. He has expressed his dissatisfaction that nei ther Parliament nor the State Vidhan Sabhas are doing, with any degree of competence or commitment, what they are primarily meant to do: legislative function. According to him, barring exceptions, those who get elected to these democrat ic institutions are neither trained, formally or infor mally, in law-making nor do they seem to have an inclination to develop the necessary knowledge and competence in th eir profession. He has further indicated that those indiv iduals in society who are generally interested in serving the electorate and performing legislative functions are finding it increasingly difficult to succeed in today’ s electoral system and the electoral system has been almost totally subvert ed by money power, muscle power, and vote bank considerations of castes and communities. Shri V ajpayee also had indicated that the corruption in the governing structures has, therefore, corroded the very core of elective democracy. Accordi ng to him, the certainty of scope of corruption in the gov erning structure has heightened opportunism and unscrupulousness among political parties, causing them to marry and divorc e one another at will, seek opportunistic alliances a nd 933 coalitions often without the popular mandate. Yet they capture and survive in power due to inherent systematic flows. He further stated that casteism, corruption and politic isation have eroded the integrity and efficacy of our civil service structure also. The manifestos, policies, programmes of the political parties have lost meaning in the present syst em of governance due to lack of accountability.” 47. We are thus of the view that interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require check on false implications of innocent citizens on caste lines. Issue of anticipatory bail 48. In the light of the above, we first consider the question whether there is an absolute bar to the grant of anticipatory bail in which case the contention for revisiting the validity of the said provisi on may need consideration in the light of decisions of this Court relied upon by learned amicus. 49. Section 18 of the Atrocities Act containing bar against grant of anticipatory bail is as follows: “Section 438 of the Code not to apply to persons committing an offence under the Act. – Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.” 50. In Balothia (supra), Section 18 was held not to be violative of Articles 14 and 21 of the Constitution. It was observed that exclusion of Section 438 Cr.P.C. in connection with offences under the Act had to be viewed in the context of prevailing social condi tions and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders, if they are granted anticipatory bail. Referring to the Statement of Objects and Reasons, it was observed that m embers of SC and ST are vulnerable and are denied number of civil rights and they are subjected to humiliation and harassment. They assert t heir rights and demand statutory protection. Vested interests try to cow them down and terrorise them. There was increase in disturbing trend of commission of atrocities against members of SC and ST. Thus, the persons who are DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation. 51. Though we find merit in the submission of learned amicus that judgment of this Court in Ram Krishna Balothia (supra) may need to be revisited in view of judgments of this Court, particularly Maneka Gandhi (supra), we consider it unnecessary to refer the matter to the larger Bench as the judgment can be clarified in the light of law laid down by this Court. Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. It cannot be read as being applicable to those who are falsely implicated for extraneous reasons and have not committed the offence on prima facie independent scrutiny. Access to justice being a fundamental right, grain has to be separated from the chaff, by an independent mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law. 52. If the provisions of the Act are compared as against cer tain other enactments where similar restrictions are put on consideration of matter for grant of anticipatory bail or grant of regular bail, an interesting situation emerges. Section 17(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (“TADA” for short - since repea led) stated “…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 punishable under the provisions of this Act…”. Section 17(5) of the TADA Act put further restriction on a person acc used of an offence punishable under the TADA Act being released on regular bail and one of the conditions was: Where the Public Prosecutor opposes the application for grant of bail, the court had to be satisfied t hat there were reasonable grounds for believing that the accused was not guilty of such offence and that he was not likely to commit any such offence while on bail. The provisions of the Unlawful Activities (Prev ention) Act, 1967 (for short “the UAPA Act”), namely under Section 43D(4) and 43D(5) are similar to the aforesaid Sections 17(4) and 17(5) of the TADA Act. Similarly the provisions of Maharashtra Control of Organised Crime Act, 1999 (for short “MCOC Act”), namely, Sections 21(3) and 21(4) are also identical in terms. Thus the impact of release of a person 935 accused of having committed the concerned offences under these special enactments was dealt with by the Legislature not only at t he stage of consideration of the matter for anticipatory bail but even after the arrest at the stage of grant of regular bail as well. The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act) are, however, distinct in that the restriction under Section 37 is at a stage where the matter is considered for grant of regular bail. No such restriction is thought of and put in place at the stage of consideration of matter for grant of anticipatory bail. On the other hand, the provisions of the Act are diametrically opposite and the restriction in Section 18 is only at the stage of consideration of matter for anticipatory bail and no such restriction is available while the matter is to be considered for grant of regular bail. Theoretically it is possible to say that an application under Section 438 of the Code may be rejected by the Court because of express restrictions in Section 18 of the Act but the very same court can grant bail under the provisions of Section 437 of the Code, immediately after the arrest. There seems to be no logical rationale behind this situation of putting a fetter on grant of anticipatory bail whereas t here is no such prohibition in any way for grant of regular bail. It is, therefore, all the more necessary and important that the express exclusion under Section 18 of the Act is limited to genuine cases and inapplicabl e where no prima facie case is made out. 53. We have no quarrel with the proposition laid down in the said judgment that persons committing offences under the Atrocities Act ought not to be granted anticipatory bail in the same manner i n which the anticipatory bail is granted in other cases punishable with similar sentence. Still, the question remains whether in cases where there is no prima facie case under the Act, bar under Section 18 operates can be considered. We are unable to read the said judgment as laying down that exclusion is applicable to such situations. 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. Consideration in the mind of this Court in Balothia (supra) is that the perpetrators of atrocities should not be granted anticipatory bail so that they may not terrorise the victims. Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime. 54. In view of decisions in Vilas Pandurang Pawar (supra) and Shakuntla Devi (supra), learned ASG has rightly stated that there is no absolute bar to grant anticipatory bail if no prima facie case is made out inspite of validity of Section 18 of the Atrocities Act being upheld. 55. In Hema Mishra versus State of U.P. 53 , it has been expressly laid down that inspite of the statutory bar against grant of antici patory bail, a Constitutional Court is not debarred from exercising its jurisdiction to grant relief. This Court considered the issue of anticipatory bail where such provision does not apply. Reference was made to the view in Lal Kamlendra Pratap Singh versus State of Uttar Pradesh and Ors. 54 to the effect that interim bail can be granted even in such cases without accused being actually arrested. Reference was also made to Kartar Singh versus State of Punjab 55 to the effect that jurisdiction under Article 226 is not barred even in such cases. 56. It is well settled that a statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of citizen must be read consistent with the conce pt of fairness and reasonableness. 57. A Constitution Bench of this Court in Kedar Nath versus State of Bihar 56 observed: “26. It is also well settled that in interpreting an e nactment the Court should have regard not merely to the lite ral meaning of the words used, but also take into considerati on the antecedent history of the legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal Immu nity Company Limited v. State of Bihar [1955 2 SCR 603] and (2) R.M.D. Chamarbaugwala v. Union of India[1957 SCR 930]. Viewed in that light, we have no hesitation i n so 53 (2014) 4 SCC 453 – paras 21, 34 to 36 54 (2009) 4 SCC 437 55 (1994) 3 SCC 569 – para 368 (17) 56 AIR 1962 SC 955 : 1962 Supp (2) SCR 769 937 construing the provisions of the sections impugned in t hese cases as to limit their application to acts involving i ntention or tendency to create disorder, or disturbance of law and order, or incitement to violence. 27. We may also consider the legal position, as it sh ould emerge, assuming that the main Section 124-A is capable o f being construed in the literal sense in which the Ju dicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, is it not open to this Court to construe the section in such a way as to avoid t he alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intend ed to apply it? In our opinion, there are decisions of this C ourt which amply justify our taking that view of the legal pos ition. This Court, in the case of R.M.D. Chamarbaugwalla v. Union of India has examined in detail the several decisions of this Court, as also of the courts in America and Australia. Afte r examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come withi n the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court wi ll take that view of the matter and limit its applicat ion accordingly, in preference to the view which would make i t unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to c hoose between a definition of the expression “Prize Competitions” as limited to those competitions which were of a gambl ing character and those which were not. The Court chose the former interpretation which made the rest of the provis ions of the Act, Prize Competitions Act (42 of 1955), wi th particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involv ed the element of gambling and those competitions in w hich success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand in sofar as we propose to limit its operation only to such act ivities as come within the ambit of the observations of the Fed eral DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.” 58. In the present context, wisdom of legislature in creati ng an offence cannot be questioned but individual justice is a judicial function depending on facts. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently malafide version is put forward. Courts have inherent jurisdiction to do justic e and this jurisdiction cannot be intended to be excluded. Thus, exclusion of Court’s jurisdiction is not to be read as absolute. 59. There can be no dispute with the proposition 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. Thus, exclusion of provision for anticipatory bail cannot possibly , by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. If this interpretation is not taken, it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be black mailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the scenario in a civilized society. Similarly, even a non public servant can be black mailed to surrender his civil rights. This is not the intention of law. Such law cannot stand judicial scrutiny. It will fall foul of guaranteed fundamental right s of fair and reasonable procedure being followed if a person is deprived of life and liberty. Thus, literal interpretation cannot be preferred in the present situation. 60. Applying the above well known principle, 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. 61. The Gujarat High Court in Pankaj D Suthar (supra) considered the question whether Section 18 of the Atrocities Act excludes grant of anticipatory bail when on prima facie judicial scrutiny, allegations are found to be not free from doubt. The said question was a nswered as follows: 939 “4. Now undoubtedly it is true that the alleged offence under the Atrocities Act is a very serious offence and if inde ed the complaint is ultimately found to be truthful and genuine one, there cannot be any two views about the strictest po ssible view taken in such matter. Not only that but if the complaint is also found to be prima facie dependable one that is to say, free from doubt, then as a warranted under Section 1 8 of the Atrocities Act, even the anticipatory bail t o such accused has got to be refused. In fact, the Parliament in its utmost wisdom has rightly evidenced great concern a nd anxiety over the atrocities which are going on unabat edly on S.Cs. & S.Ts. by inserting the provisions under S ection 18 of the Atrocities Act disabling the accused from obtaining the anticipatory bail under Section 438 of the Code. This indeed is a welcome step and in accordance with the axiomatic truth, viz., ‘the disease grown desperate ly must be treated desperately else not’. The disease of commission of offences by way of atrocities against the members of S.Cs. and S.Ts. are unabatedly going on since last hundre ds of years and in the recent past have become alarmingly increasing and has become so rampant, breath taking and has reached such a desperate pass that it indeed needed a very stringent and desperate legislation which coul d help save the situation by effectively providing the legal prote ction to such cursed, crushed and downtrodden members of S.Cs. & S.Ts. communities. Under such circumstances, it is equally the paramount duty of every Court to see that it responds to legislative concern and call and ensure effective implementation of the Atrocities Act, by seeing tha t the provisions enshrined in the said Act are duly complied with. But then, what according to this Court is the most wel come step by way of collective wisdom of the Parliament in ushering social beneficial legislation cannot be permitt ed to be abused and converted into an instrument to blackmail to wreak some personal vengeance for settling and scor ing personal vendetta or by way of some counter-blasts again st opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are-Whether a torch which is DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] lighted to dispel the darkness can it be permitted to se t on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by u sing the same in the course of operation by a surgeon, can i t be permitted to be used in taking the life of some innocent? The very same fundamental question arises in the facts and circumstances of this case also, viz., ‘whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon o f wrecking personal vengeance on the opponents?’ The answer to this question is undoubtedly and obviously ‘No’. Under such circumstances, if the Courts are to apply s uch provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some genera l and popular prejudices based on some words and tric ky accusations in the complaint on mere assumptions witho ut intelligently scrutinising and testing the probabil ities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simp ly unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice . Virtually, it would be tentamount to abdicating and relegating its judicial duty, fanction of doing justice in such matters in favour and hands of such unscrupulous complainant b y making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpos e the rules made thereunder are applicable to the facts o f a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the doma in of ‘judicial consideration-discretion’ and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial func tion- duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision. 941 5. Now reverting to the contents of the complaint a nd attending circumstances high lighted by Mr. Pardiwala, th e learned Advocate for the petitioner-accused, the same prima facie clearly demonstrates that at this stage the story reveal ed by the complainant docs not appear to be free from doubt. If that is so, very applicability of the Atrocities Act is rendered doubtful. If that is the situation, then to refuse the anticipatory bail on mere accusations and assumptions that the petitioner-accused has committed an offence unde r the Atrocities Act would be absolutely illegal, unjudicious, unju st and ultimately a travesty of justice. No Court can ever embark upon such hazards of refusing anticipatory bail on mere doubtful accusations and assumptions that Atrocities Ac t is applicable. No Court could and should be permitted to bo ‘spoon-fed’ by the complainant whatever he wants to f eed and swallow whatever he wants the Court to gulp down to attain and secure his unjust mala fide motivated ends. Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but it does not and it certainly cannot whisk away the right of any Court to have a prima facie judicial scrut iny of the allegations made in the complaint. Nor can it under its hunch permit provisions of law being abused to suit t he mala fide motivated ends of some unscrupulous complainant. In this case also if indeed this Court been satisfied w ith the story revealed by the complainant as truthful and genui ne, then anticipatory bail would have been surely rejected righ t forth as a matter of course, but since the submissions of Mr. Pardiwala have considerable force, this Court has n o alternative but to accept the same in the larger inter ests of justice to see that merely on the count of the firs thand prejudice attempted to be caused by allegations in the complaint, the petitioner-accused is not denied his pre cious right of the anticipatory bail. 6. In view of the aforesaid discussion, though in a way th e learned A.P.P. is absolutely right when he submitted that no anticipatory bail can be granted to the petitioner-ac cused because of Section 18 of the Atrocities Act, in the op inion of this Court, his submission fails because at this stage it is too DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] difficult to rule out the probability of the accusations levelled by the complainant against the petitioner-accused ha ving committed an offence under the Atrocities Act being fals e, vexatious and by way of counterblast as stemming from the ulterior motive to humiliate, disgrace and demoralise the petitioner-accused who is a public servant. When that is the result and position, there is no question of bypass ing of Section 18 of the Atrocities Act arises as apprehended by the learned A.P.P. Taking into consideration the facts and circumstances of this particular case, and in view of the aforesaid discussion, this Misc. Criminal Applicatio n for anticipatory bail deserves to be allowed and is all owed accordingly” 62. The above view was reiterated in Dr. N.T. Desai (supra), after considering the judgment of this Court in Balothia (supra). It was observed that even taking Section 18 of the Atrocities Act to be valid, if the Court, prima-facie, found the story of complainant to be doubtful, the accused could not be allowed to be arrested. Doing so would be unjudicial. It was observed;- “8. To deal first with the preliminary objection raised by the learned A.P.P. Mr. Desai, it may be stated that the Supre me Court’s decision rendered in the case of State of M.P. & Anr. v. Ramkishan Balothia (supra) stands on altogether quite different footing where the vires of Section 18 of t he Act came to be decided. The Apex Court has ultimately h eld that Section 18 of the Act was not ultra vires. This Co urt is indeed in respectful agreement with the aforesaid decisi on of the Supreme Court ….. ….. ….. ….. ….. ….. ..... But then having closely examined the complaint more particularly in the context and light of the backdrop of the peculiar facts situation highlighted by the petitioner l eading ultimately to filing of the complaint, this Court pri me facie at the very outset is at some doubt about the complainant’s story and yet if it readily, mechanically like a gullibl e child accepts the allegations made in the complaint at its face value, it would be surely blundering and wandering a way 943 from the path of bail-justice, making itself readily avai lable in the hands of the scheming complainant who on mer e asking will get arrested accused on some false alleg ations of having committed non-bailable offence, under the Atrocity Act, meaning thereby the Court rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary prudence with no perception for justice, denying the rightful protection to the accused becoming ready pawn pliable in the hands of sometime scheming, unscrupulous complainants !!! This sort of a surrender to prima facie doubtful allegation in the complaint is not at all a judicial approach, if not unjudicial !!...” 63. The above judgments correctly lays down the scope of exclusion as well as permissibility of anticipatory bail in cases under the Atrocities Act and are consistent with the view we take. Section 18 of the Atrocities Act has, thus, to be read and interpreted in this manner. At this stage, we may note that we have seen a contra view of the Division Bench of the said High Court in Pravinchandra N Solanki and Ors. versus State of Gujarat 57 . We are unable to accept the said view for the reasons already given and overrule the same. 64. Concept of “Due process” and principles of 8 th Amendment of the U.S. Constitution have been read by this Court as part of guarantee under Article 21 of the Constitution. In State of Punjab versus Dalbir Singh 58 , it was observed : “80. It has already been noted hereinabove that in our Constitution the concept of “due process” was incorporated in view of the judgment of this Court in Maneka Gandhi[(1978) 1 SCC 248] The principles of the Eigh th Amendment have also been incorporated in our laws. Thi s has been acknowledged by the Constitution Bench of this Court in Sunil Batra [(1978) 4 SCC 494] In Sunil Ba tra case, SCC para 52 at p. 518 of the Report, Krishna Iyer , J. speaking for the Bench held as follows: “52. True, our Constitution has no ‘due process’ claus e or the Eighth Amendment; but, in this branch of law, a fter 57 (2012)1 GLR 499 58 (2012) 3 SCC 346 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] Cooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC 248] and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalisingly unusu al or cruel and rehabilitatively counterproductive, is unar guably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.” xxx xxxx xxxx 84. The principle of “due process” is an emanation from the Magna Carta doctrine. This was accepted in American jurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p. 90 : US p. 142). Again this was acknowledged in Planne d Parenthood of Southeastern Pennsylvania v. Casey [1 20 L Ed 2d 674] wherein the American Supreme Court observed as follows: “The guarantees of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards ‘against executive usurpation and tyranny’, have in this country ‘become bulwarks als o against arbitrary legislation’.” 85. All these concepts of “due process” and the concept of a just, fair and reasonable law have been read by this Court into the guarantee under Articles 14 and 21 of the Constitution….” 65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstan ces 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. In Noor Aga versus State of Punjab 59 , it was observed: “33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Ci vil and Political Rights. It, however, cannot per se be eq uated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the e xtent thereof, would not militate against other statutory provisio ns 59 (2008) 16 SCC 417 945 (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India). xxxx xxxx xxxx 35. A right to be presumed innocent, subject to the establishment of certain foundational facts and bur den of proof, to a certain extent, can be placed on an accus ed. It must be construed having regard to the other internation al conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of ci tizens must be upheld. xxxx xxxx xxxx 43. The issue of reverse burden vis-à-vis the human righ ts regime must also be noticed. The approach of the com mon law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this common law principle was su bject to parliamentary legislation to the contrary. The c oncern now shown worldwide is that Parliaments had frequen tly been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offe nces triable in the Crown Court appear to violate the presumption. (See “The Presumption of Innocence in English Crimi nal Law”, 1996, CRIM. L. REV . 306, at p. 309.) 44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law….” Similar provisions have been made in Article 6.2 of the European Convention for the Protection of Human Rig hts and Fundamental Freedoms (1950) and Article 14.2 of t he International Covenant on Civil and Political Rights (1966). DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] Xxx xxxx xxx xxx 47. We may notice that Sachs, J. in State v. Coetzee [1997(2) LRC 593] explained the significance of the presumpti on of innocence in the following terms: “There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accu sed become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not conv icted and subjected to ignominy and heavy sentences massi vely outweighs the public interest in ensuring that a parti cular criminal is brought to book. … Hence the presumptio n of innocence, which serves not only to protect a parti cular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Refer ence to the prevalence and severity of a certain crime t herefore does not add anything new or special to the balanci ng exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitt ed from the beginning, not a new element to be put int o the scales as part of a justificatory balancing exercis e. If this were not so, the ubiquity and ugliness argument coul d be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption … the list is unfortunately almo st endless, and nothing would be left of the presumpti on of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.” In view of the above, an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the compla inant 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 i nterpreted accordingly. 66. We have already noted the working of the Act in the last three decades. It has been judicially acknowledged tha t there are instances of abuse of the Act by vested interests ag ainst political 947 opponents in Panchayat, Municipal or other elections, to settle pri vate civil disputes arising out of property, monetary disputes, em ployment disputes and seniority disputes 60 . It may be noticed that by way of rampant misuse complaints are ‘largely being filed particularly against Public Servants/quasi judicial/judicial officers with obliq ue motive for satisfaction of vested interests’ 61 . 67. Innocent citizens are termed as accused, which is not intended by the legislature. 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 performi ng 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 was made out, there will be no protection available t o innocent citizens. Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and libe rty under Article 21 of the Constitution. 68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Cour t being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention. 69. In Lal Kamlendra Pratap (supra) , this Court held that even if there is no provision for anticipatory bail, the Court can grant interim bail in suitable cases. It was observed : “6. Learned counsel for the appellant apprehends that th e appellant will be arrested as there is no provision for anticipatory bail in the State of U.P . He placed reliance on a decision of the Allahabad High Court in Amarawati v. State 60 Dhiren Praful bhai (supra) 61 Sharad (supra) DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] of U.P . [2005 Crl LJ 755 (All)] in which a seven-Judge Full Bench of the Allahabad High Court held that the court, if it deems fit in the facts and circumstances of the cas e, may grant interim bail pending final disposal of the ba il application. The Full Bench also observed that arrest is not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in Joginder Kumar v. State of U.P .[(1992) 4 SCC 260] 7. We fully agree with the view of the High Court in Amarawati case and we direct that the said decision be followed by all courts in U.P . in letter and spirit, particula rly since the provision for anticipatory bail does not exist in U.P. 8. In appropriate cases interim bail should be grante d pending disposal of the final bail application, sin ce arrest and detention of a person can cause irreparable loss to a person’ s reputation, as held by this Court in Joginder Kum ar case. Also, arrest is not a must in all cases of co gnizable offences, and in deciding whether to arrest or not the polic e officer must be guided and act according to the princ iples laid down in Joginder Kumar case.” 70. In Vikas Pandurang case (supra), it was observed : “10. …..When an offence is registered against a per son under the provisions of the SC/ST Act, no court shall entertai n an application for anticipatory bail , unless it prima facie finds that such an offence is not made out.” 71. Law laid down by this Court in Joginder Kumar (supra), Arnesh Kumar (supra), Rini Johar (supra), Siddharam Satlingappa (supra) to check uncalled for arrest cannot be ignored and clearly applies to arrests under the Atrocities Act. Protection of innocent is as important as punishing the guilty. 72. In Dadu alias Tulsidas versus State of Maharashtra 62 while considering the validity of exclusion of bail by an appellate court in NDPS cases, this Court noted the submission that the legislature could not take away judicial powers by statutory prohibition against suspending 62 (2000) 8 SCC 437 949 the sentence during the pendency of the appeal. This is an es sential judicial function. The relevant observations are: “1 6. Learned counsel appearing for the parties were mor e concerned with the adverse effect of the section on the powers of the judiciary. Impliedly conceding that the sect ion was valid so far as it pertained to the appropriate Government, it was argued that the legislature is not competent to take away the judicial powers of the court by statutory prohibition as is shown to have been done vide the impugned sect ion. Awarding sentence, upon conviction, is concededly a judicial function to be discharged by the courts of law estab lished in the country. It is always a matter of judicial di scretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a criminal court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judici al function embracing within its ambit the power to su spend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal.” 73. On the above reasoning, it is difficult to hold that the legislature wanted exclusion of judicial function of going into correctness or otherwise of the allegation in a criminal case before liberty of a person is taken away. The legislature could not have intended that any unilateral version should be treated as conclusive and the person making such allegation should be the sole judge of its correctness to the exclusion of judicial function of courts of assessing the truth or otherwi se of the rival contentions before personal liberty of a person is adversely affected. 74. It is thus patent that in cases under the Atroci ties Act, exclusion of right of anticipatory bail is applicable onl y if the case is shown to bona fide and that prima facie it falls under the Atrocities Act and not otherwise. Section 18 does not apply where there is no prima facie case or to cases of patent false implication or when the allegation is motivated for extraneous reasons. We approve the view of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) . We clarify the Judgments in Balothia (supra) and Manju Devi (supra) to this effect. DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] Issue of safeguards against arrest and false implications 75. We may now deal with the issue as to what directions, if any, are necessary, apart from clarifying the legal position with regard to anticipatory bail. The under privileged need to be protected against any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same time, the said 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 in decisions referred to above. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This Court must enforce such a guarantee. Law should not result in caste hatr ed. The preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity. 76. We are satisfied, in the light of statistics already refe rred as well as cited decisions and observations of the Standing Committee of Parliament that there is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court. 77. We are conscious that normal rule is to register FIR if any information discloses commission of a cognizable offence. The re are however, exceptions to this rule. In Lalita Kumari versus State of U.P. 63 , it was observed : “115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registrati on of FIRs on receipt of all cognizable offences, yet, there m ay be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case o f allegations relating to medical negligence on the p art of doctors. It will be unfair and inequitable to prose cute a medical professional only on the basis of the allegati ons in the complaint. xxxx xxxx xxxx 63 (2014) 2 SCC 1 951 117. In the context of offences relating to corruption, this Court in P. Sirajuddin [(1970) 1 SCC 595] expressed the need for a preliminary inquiry before proceeding ag ainst public servants. xxxx xxxx xxxx 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which prelim inary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ dela y in reporting the matter without satisfactorily explain ing the reasons for delay. The aforesaid are only illustrations and not exhaustiv e of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 d ays. The fact of such delay and the causes of it must be reflecte d in the General Diary entry.” 78. The above view is consistent with earlier judgments in State of U.P. versus Bhagwant Kishore Joshi 64 and P. Sirajuddin versus State of Madras 65 . In Bhagwant Kishore it was observed: “… … …In the absence of any prohibition in the Code , express or implied, I am of opinion that it is open to a P olice Officer to make preliminary enquiries before register ing an offence and making a full scale investigation into it. No doubt, Section 5A of the Prevention of Corruption Act was 64 AIR 1964 SC 221 = 1964(3) SCR 221 65 (1970) 1 SCC 595 DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] enacted for preventing harassment to a Government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not permitte d to be made by an officer below the rank of a Deputy Superintendent of Police. Where however, a Police Offic er makes some preliminary enquiries, does not arrest or eve n question an accused or question any witnesses but mer ely makes a few discreet enquiries or looks at some documents without making any notes, it is difficult to visualize how any possible harassment or even embarrassment would res ult therefrom to the suspect or the accused person. … …” In Sirajuddin (supra) it was observed: “17. … …Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amou nt to serious misdemeanour or misconduct of the type alle ged in this case and a first information is lodged against him, th ere must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report agai nst a person, specially one who like the appellant occupied the top position in a department, even if baseless, wou ld do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said depart ment was entrusted with enquiries of this kind, no exception can of taken to an enquiry by officers of this departme nt but any such enquiry must proceed in a fair and reasona ble manner. … …” 79. We are of the view that cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held. Such inquiry must be time-bound and should not exceed seven days in view of directions in Lalita Kumari (supra). 80. Even if preliminary inquiry is held and case is registered, arrest is not a must as we have already noted. In Lalita Kumari (supra) it was observed: “107. While registration of FIR is mandatory, arrest of t he accused immediately on registration of FIR is not a t all 953 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 ag ainst arrest. Moreover, it is also pertinent to mention t hat an accused person also has a right to apply for “anticipat ory bail” under the provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, i n appropriate cases, he can avoid the arrest under th at provision by obtaining an order from the court.” 81. Accordingly, we direct that in absence of any other independent offence calling for arrest, 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 reas ons 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. Consideration of present case 82. As far as the present case is concerned, we find merit in the submissions of learned amicus that the proceedings against the appellant are liable to be quashed. Conclusions 83. Our conclusions are as follows: 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. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.] judgments of this Court in Balothia (supra) and Manju Devi (supra); iii) In view of acknowledged abuse of law of arrest in c ases 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. The above directions are prospective. 84. Before parting with the judgment, we place on record our sincere appreciation for the invaluable assistance rendered by learned Amicus and also assistance rendered by learned counsel who have appeared in this case. The appeal is accordingly allowed in the above terms. Divya Pandey Ap peal allowed.