# DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR

- **Citation:** [2018] 4 S.C.R. 877
- **Court:** Supreme Court of India
- **Decided:** 2018-03-20
- **Case number:** Criminal Appeal No. 416 of 2018
- **Bench:** Adarsh Kumar Goel, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-subhash-kashinath-mahajan-v-the-state-of-maharashtra-and-anr-32887
- **Pages:** 78

## Headnote

The Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - s.18 - Exclusion of anticipatory bail, in
cases of false implications - Procedural safeguards - Respondent
no.2-complainant, a govt. employee belonging to Scheduled Caste,
lodged FIR in 2006 against his two senior officers (non-Scheduled
Caste) when they made adverse entry in his Annual Confidential
Report - Sanction to proceed against the said two senior officers,
refused by appellant in 2011 - Present FIR lodged by respondent
no.2 against the appellant in 2016 - Appellant sought quashing of
proceedings, which was rejected by High Court - Held: 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 - Exclusion
of anticipatory bail is justified only to protect victims of perpetrators
of crime in genuine cases- It cannot be made applicable to those
who are falsely implicated for extraneous reasons - 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 - 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 Magistrate for permitting further detention
- In the instant case, the proceedings against appellant are clear
abuse of process of court and are quashed - Code of Criminal
Procedure, 1973 - s.438 and ss.482, 41, 41A, 197 - Penal Code,
1860 - ss.182, 192, 193, 203 and s.219 r/w s.34 - Constitution of
India - Arts.14, 15, 16 and 21 - The Scheduled Castes and The
Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - r.12(4) -
Protection of Civil Rights Act, 1955 - Terrorist and Disruptive
[2018] 4 S.C.R. 877
877
A
B
C
D
E
F
G
H
878
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Activities (Prevention) Act, 1985 - s.17(4), (5) - Unlawful Activities
(Prevention) Act, 1967 - ss.43D(4), (5) - Maharashtra Control of
Organised Crime Act, 1999 - ss.21(3), (4) - Narcotic Drugs and
Psychotropic Substances Act, 1985 - s.37.
Code of Criminal Procedure, 1973 - ss.41, 41A - Power of
arrest - Held: Enforcement of a legislation has to be consistent
with the fundamental rights - Power of arrest is to be exercised
with caution - Mere unilateral allegation by any individual
belonging to any caste, when such allegation is clearly motivated
and false, cannot deprive a person of his liberty without an
independent scrutiny - Scheduled Castes and the Scheduled
Tribes(Prevention of Atrocities) Act, 1989.
Interpretation of Statutes - Literal interpretation vis-à-vis
purposive interpretation - Held: A statute is to be read in the context
of the background and its object - 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 - Doctrines/Principles - Doctrine
of proportionality.
Criminal Trial - Presumption of innocence - Held: Presumption
of innocence is a human right - Placing of burden of proof on
accused in certain circumstances may be permissible but there cannot
be presumption of guilt so as to deprive a person of his liberty -
Protection of innocent is as important as punishing the guilty -
Human rights.
Constitution of India - Powers/Role of Supreme Court to issue
appropriate orders or directions for enforcement of fundamental
rights - Held: Role of Supreme Court travels beyond merely dispute
settling and directions can be issued which are not directly in conflict
with a valid statute - Power to declare law carries with it, within the
limits of duty, to make law when none exists.
Scheduled Ca

## Text

_Characters 0–39,883 of 173,706. This is a partial read: ask again with offset=39883 for what follows._

A
B
C
D
E
F
G
H
877
DR. SUBHASH KASHINATH MAHAJAN
v.
THE STATE OF MAHARASHTRA AND ANR.
(Criminal Appeal No. 416 of 2018)
MARCH 20, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
The Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - s.18 - Exclusion of anticipatory bail, in
cases of false implications - Procedural safeguards - Respondent
no.2-complainant, a govt. employee belonging to Scheduled Caste,
lodged FIR in 2006 against his two senior officers (non-Scheduled
Caste) when they made adverse entry in his Annual Confidential
Report - Sanction to proceed against the said two senior officers,
refused by appellant in 2011 - Present FIR lodged by respondent
no.2 against the appellant in 2016 - Appellant sought quashing of
proceedings, which was rejected by High Court - Held: 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 - Exclusion
of anticipatory bail is justified only to protect victims of perpetrators
of crime in genuine cases- It cannot be made applicable to those
who are falsely implicated for extraneous reasons - 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 - 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 Magistrate for permitting further detention
- In the instant case, the proceedings against appellant are clear
abuse of process of court and are quashed - Code of Criminal
Procedure, 1973 - s.438 and ss.482, 41, 41A, 197 - Penal Code,
1860 - ss.182, 192, 193, 203 and s.219 r/w s.34 - Constitution of
India - Arts.14, 15, 16 and 21 - The Scheduled Castes and The
Scheduled Tribes (Prevention of Atrocities) Rules, 1995 - r.12(4) -
Protection of Civil Rights Act, 1955 - Terrorist and Disruptive
[2018] 4 S.C.R. 877
877
A
B
C
D
E
F
G
H
878
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Activities (Prevention) Act, 1985 - s.17(4), (5) - Unlawful Activities
(Prevention) Act, 1967 - ss.43D(4), (5) - Maharashtra Control of
Organised Crime Act, 1999 - ss.21(3), (4) - Narcotic Drugs and
Psychotropic Substances Act, 1985 - s.37.
Code of Criminal Procedure, 1973 - ss.41, 41A - Power of
arrest - Held: Enforcement of a legislation has to be consistent
with the fundamental rights - Power of arrest is to be exercised
with caution - Mere unilateral allegation by any individual
belonging to any caste, when such allegation is clearly motivated
and false, cannot deprive a person of his liberty without an
independent scrutiny - Scheduled Castes and the Scheduled
Tribes(Prevention of Atrocities) Act, 1989.
Interpretation of Statutes - Literal interpretation vis-à-vis
purposive interpretation - Held: A statute is to be read in the context
of the background and its object - 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 - Doctrines/Principles - Doctrine
of proportionality.
Criminal Trial - Presumption of innocence - Held: Presumption
of innocence is a human right - Placing of burden of proof on
accused in certain circumstances may be permissible but there cannot
be presumption of guilt so as to deprive a person of his liberty -
Protection of innocent is as important as punishing the guilty -
Human rights.
Constitution of India - Powers/Role of Supreme Court to issue
appropriate orders or directions for enforcement of fundamental
rights - Held: Role of Supreme Court travels beyond merely dispute
settling and directions can be issued which are not directly in conflict
with a valid statute - Power to declare law carries with it, within the
limits of duty, to make law when none exists.
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Purpose and object of - Discussed.
Allowing the appeal, the Court
HELD: Consideration of the issue whether directions can
be issued by this Court to protect fundamental right under Article
21 against uncalled for false implication and arrests
A
B
C
D
E
F
G
H
879
1.1 Jurisdiction of Supreme Court to issue appropriate
orders or directions for enforcement of fundamental rights is a
basic feature of the Constitution. Supreme Court, as the ultimate
interpreter of the Constitution, has to uphold the constitutional
rights and values. Articles 14, 19 and 21 of the Constitution
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 enjoy 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 legislature has to be exercised consistent with the
fundamental rights. Enforcement of a legislation has also to be
consistent with the fundamental rights. Undoubtedly, the Supreme
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. [Para 31] [913-G-H;
914-A-D]
1.2 The Supreme 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. Role of Supreme Court travels
beyond merely dispute settling and directions can certainly be
issued which are not directly in conflict with a valid statute. Power
to declare law carries with it, within the limits of duty, to make
law when none exists. There are innumerable occasions when
Supreme Court has issued directions for enforcement of
fundamental rights e.g., directions regarding functioning of caste
scrutiny Committee; directions to regulate appointment of law
officers; directions to regulate powers of this Court and High
Courts in designating Senior Advocates; guidelines have been
issued for the welfare of a child accompanying his/her mother in
imprisonment; directions for checking trafficking of women and
children; for night shelters for the homeless; directions to check
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
880
SUPREME COURT REPORTS
[2018] 4 S.C.R.
malnutrition in children; directions to provide medical assistance
by Government run hospitals; directions for protection of human
rights of prisoners; directions for speedy trial of under trials.
[Paras 32, 35] [914-D-F; 917-D-F]
Maneka Gandhi vs. UOI (1978) 1 SCC 248 : [1978] 2
SCR 621 - followed.
1.3 In Joginder Kumar, it was 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, oppression and abuse by the police and the
other law enforcing agencies. The 3rd Report of the National Police
Commission was noted 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 arrest could be justified only in
grave offences to inspire the confidence of the victim, to check
the accused from committing further crime and to prevent him
from absconding. The National Police Commission recommended
that the police officer making arrest should record reasons. It
was observed that no arrest can be made merely because it is
lawful 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. In Arnesh Kumar, it was
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 'credible information' or
'reasonable suspicion' and if arrest was necessary to prevent
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.
[Para 36] [918-A-F]
A
B
C
D
E
F
G
H
881
Joginder Kumar v. State of U.P. (1994) 4 SCC 260;
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 :
[2014] 8 SCR 128 - relied on.
Further consideration of potential impact of working of Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 on spreading casteism
2. Working of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 should not result in
perpetuating casteism which can have an adverse impact on
integration of the society and the constitutional values. Secularism
is a basic feature 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. 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. [Paras
42, 47] [929-H; 930-A-B; 933-B-C]
Issue of anticipatory bail
3.1 Section 18 of the Atrocities Act contains bar against
grant of anticipatory bail. 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. If the provisions of the Act are compared as against
certain 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. [Paras 49-52] [933D-E; 934-C-E]
3.2 Section 17(4) of the Terrorist and Disruptive Activities
(Prevention) Act, 1985 ("TADA" - since repealed) stated
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
882
SUPREME COURT REPORTS
[2018] 4 S.C.R.
"...nothing in Section 438 of CrPC 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 accused 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 that 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
(Prevention) Act, 1967, 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, namely, Sections 21(3) and 21(4) are also identical
in terms. Thus the impact of release of a person accused of having
committed the concerned offences under these special
enactments was dealt with by the Legislature not only at the 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 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 CrPC may be rejected by the Court because
of express restrictions in Section 18 of the Atrocities Act but the
very same court can grant bail under the provisions of Section
437 of CrPC, immediately after the arrest. There seems to be
no logical rationale behind this situation of putting a fetter on
grant of anticipatory bail whereas there 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 Atrocities Act is limited to genuine cases and
A
B
C
D
E
F
G
H
883
inapplicable where no prima facie case is made out. [Para 52]
[934-E-H; 935-A-E]
3.3 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, no justification is seen for applying
Section 18 in such cases. 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 cannot be subjected to the same
treatment as the persons who are prima facie perpetrators of the
crime. [Para 53] [935-F-H; 936-A]
3.4 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 concept of fairness and
reasonableness. In the present context, wisdom of legislature in
creating 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 justice and this jurisdiction cannot be
intended to be excluded. Thus, exclusion of Court's jurisdiction
is not to be read as absolute. 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
blackmailed with the threat of a false case being registered under
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
884
SUPREME COURT REPORTS
[2018] 4 S.C.R.
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 blackmailed 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 rights 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. [Paras 56, 58 and 59] [936-D-E; 938-B-F]
3.5 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. Section 18 of the Atrocities Act has, thus, to be
read and interpreted in this manner. [Paras 60, 63] [938-F-G;
943-C-D]
3.6 Concept of "Due process" and principles of 8th
Amendment of the U.S. Constitution have been read by this Court
as part of guarantee under Article 21 of the Constitution.
Presumption of innocence is a human right. No doubt, placing of
burden of proof on accused in certain circumstances may be
permissible but there cannot be presumption of guilt so as to
deprive a person of his liberty without an opportunity before an
independent forum or Court. In view of the above, an accused is
certainly entitled to show to the Court, if he apprehends arrest,
that case of the complainant was motivated. If it can be so shown
there is no reason that the Court is not able to protect liberty of
such a person. There cannot be any mandate under the law for
arrest of an innocent. The law has to be interpreted accordingly.
In the working of the Act in the last three decades, it has been
judicially acknowledged that there are instances of abuse of the
Act by vested interests against political opponents in Panchayat,
Municipal or other elections, to settle private civil disputes
arising out of property, monetary disputes, employment disputes
and seniority disputes. It may be noticed that by way of rampant
misuse complaints are 'largely being filed particularly against
Public Servants/quasi judicial/judicial officers with oblique motive
for satisfaction of vested interests'. [Paras 64-66] [943-E; 944-F;
946-G-H; 947-A-B]
A
B
C
D
E
F
G
H
885
3.7 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 performing their bona fide duties. Thus, unless
exclusion of anticipatory bail is limited to genuine cases and
inapplicable to cases where there is no prima facie case was made
out, there will be no protection available to innocent citizens.
Thus, limiting the exclusion of anticipatory bail in such cases is
essential for protection of fundamental right of life and liberty
under Article 21 of the Constitution. Accordingly, it is held 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, a well established principle of law is being
reiterated that protection of innocent against abuse of law is part
of inherent jurisdiction of the Court being part of access to justice
and protection of liberty against any oppressive action such as
mala fide arrest. In doing so, the efficacy of Section 18 is not
being diluted in deserving cases where Court finds a case to be
prima facie genuine warranting custodial interrogation and pretrial arrest and detention. Protection of innocent is as important
as punishing the guilty. [Paras 67, 68 and 71] [947-B-F; 948-F-G]
3.8 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
otherwise of the rival contentions before personal liberty of a
person is adversely affected. It is thus patent that in cases under
the Atrocities Act, exclusion of right of anticipatory bail is
applicable only 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. [Paras 73, 74] [949-E-H]
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
886
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Issue of safeguards against arrest and false implications
4.1 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. 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 hatred. The preamble to the
Constitution, which is the guiding star for interpretation,
incorporates the values of liberty, equality and fraternity. 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. Normal rule is to register FIR if any
information discloses commission of a cognizable offence. There
are however, exceptions to this rule and 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. Even if preliminary inquiry is held and
case is registered, arrest is not a must. [Paras 75, 76, 77, 79 and
80] [950-B-E; 952-G]
4.2 Accordingly, it is directed 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 reasons recorded are found to be valid. To avoid false
implication, before FIR is registered, preliminary enquiry may
be made whether the case falls in the parameters of the Atrocities
Act and is not frivolous or motivated. [Para 81] [953-C-E]
A
B
C
D
E
F
G
H
887
Consideration of present case
5. The proceedings against the appellant are liable to be
quashed. [Para 82] [953-E-F]
Conclusions
6. 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. The
view taken and approach of the Gujarat High Court in
Pankaj D Suthar and Dr. N.T. Desai is approved and
the judgments of this Court in Balothia and Manju Devi
are clarified;
iii) In view of acknowledged abuse of law of arrest in cases
under the Atrocities Act, arrest of a public servant can
only be after approval of the appointing authority and
of a non-public servant after approval by the S.S.P.
which may be granted in appropriate cases if considered
necessary for reasons recorded. Such reasons must
be scrutinized by the Magistrate for permitting further
detention.
iv) To avoid false implication of an innocent, a preliminary
enquiry may be conducted by the DSP concerned to
find out whether the allegations make out a case under
the Atrocities Act and that the allegations are not
frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable
by way of disciplinary action as well as contempt.
The above directions are prospective. [Para 83] [953-F-H;
954-A-D]
Pravinchandra N Solanki and Ors. v. State of Gujarat
(2012)1 GLR 499 - overruled.
State of M. P. v. Ram Krishna Balothia (1995) 3 SCC 221 :
[1995] 1 SCR 897; Manju Devi v. Onkarjit Singh
Ahluwalia (2017) 13 SCC 439 : [2017] 2 SCR 703 - clarified.
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
888
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Union of India v. Raghubir Singh (1989) 2 SCC 754 :
[1989] 3 SCR 316; Indra Sawhney and Ors v. Union
of India and Ors. (1992) Suppl. 3 SCC 217 : [1992]
2 Suppl. SCR 454; Kedar Nath v. State of Bihar [1962]
Suppl. 2 SCR 769; Lalita Kumari v. State of U.P. (2014)
2 SCC 1: [2013] 14 SCR 713 - followed.
Dr. N.T. Desai v. State of Gujarat (1997) 2 GLR 942;
Pankaj D Suthar v. State of Gujarat (1992)1 GLR 405
- approved.
D.K. Basu v. State of W.B. (1997) 1 SCC 416 : [1996]
10 Suppl. SCR 284; Subramanian Swamy v. UOI (2016)
7 SCC 221 : [2016] 3 SCR 865; Vilas Pandurang Pawar
and Anr. v. State of Maharashtra and Ors. (2012) 8
SCC 795 : [2012] 8 SCR 270; Shakuntla Devi v.
Baljinder Singh (2014) 15 SCC 521; Bandhua Mukti
Morcha v. UOI (1984) 3 SCC 161 : [1984] 2 SCR 67;
Vishakha v. State of Rajasthan (1997) 6 SCC 241 :
 [1997] 3 Suppl. SCR 404; Lakshmi Kant Pandey v.
UOI (1983) 2 SCC 244; Common Cause v. UOI (1996)
1 SCC 753 : [1996] 1 SCR 89; M.C. Mehta v. State of
T.N. (1996) 6 SCC 756 : [ 1996] 9 Suppl. SCR 726;
Supreme Court Bar Asson. v. UOI (1998) 4 SCC 409 :
[1998] 2 SCR 795; Dayaram vs. Sudhir Batham (2012)
1 SCC 333 : [2011] 15 SCR 1092; Rajesh Kumar v.
State (2011) 13 SCC 706; Siddharam Satlingappa
Mhetre v. State of Maharashtra (2011) 1 SCC 694 :
[2010] 15 SCR 201; Rini Johar & Ors. v. State of M.P.
& Ors. (2016) 11 SCC 703; Hema Mishra v. State of
U.P. (2014) 4 SCC 453 : [2014] 1 SCR 465; Noor Aga
v. State of Punjab (2008) 16 SCC 417: [2008]
10 SCR 379;
Dadu alias Tulsidas v. State of
Maharashtra (2000) 8 SCC 437; State of U.P. v.
Bhagwant Kishore Joshi [1964] 3 SCR 221; P.
Sirajuddin v. State of Madras (1970) 1 SCC 595 : [1971]
1 SCR 304 - relied on.
Joti Prasad v. State of Haryana (1993) Suppl. 2 SCC
497; Badan Singh @ Baddo v. State of U.P. & Ors.
2002 CriLJ 1392; Adri Dharan Das v. State of West
Bengal (2005) 4 SCC 303 : [2005] 2 SCR 188; Tata
A
B
C
D
E
F
G
H
889
Chemicals Ltd. v. Commissioner of Customs (2015) 11
SCC 628 : [2015] 7 SCR 132; Ganga Saran & Sons
Pvt. Ltd. v. Income Tax Officer & Ors. (1981) 3 SCC
143 : [1981] 3 SCR 564; M. C. Abraham v. State of
Maharashtra (2003) 2 SCC 649 : [2002] 5 Suppl.
SCR 677; D. Venkatasubramaniam v. M. K. Mohan
Krishnamachari (2009) 10 SCC 488 : [2009] 14
SCR 441; Gurbaksh Singh Sibbia etc. v. State of Punjab
[1980] 3 SCR 383; Nikesh Tarachand Shah v. Union
of India and Anr. (2017) 13 SCALE 609 : 2017 SCC
OnLine SC 1355; Jones v. State 2004 SCC OnLine
Mad 922 : 2004 CriLJ 2755; Dhiren Prafulbhai Shah
v. State of Gujarat 2016 CriLJ 2217; Sharad v. State
of Maharashtra 2015(4) BomCR(Crl) 545; State of
Jharkhand and Anr. v. Govind Singh (2005)10 SCC
437 : [2004] 6 Suppl. SCR 651; Rohitash Kumar and
Ors v. Om Prakash Sharma and Ors. (2013) 11 SCC
451 : [2012] 13 SCR 47; Madhuri Patil v. Tribal
Development (1994) 6 SCC 241 : [1994] 3 Suppl.
SCR 50; State of Punjab v. Brijeshwar Singh Chahal
(2016) 6 SCC 1 : [2016] 4 SCR 685; Indira Jaising v.
Supreme Court of India (2017) 9 SCC 766; R.D.
Upadhyay v. State of A.P. (2007) 15 SCC 337: [2006]
3 SCR 1132; Bachpan Bachao Andolan v. UOI (2011)
5 SCC 1 : [2011] 5 SCR 353; Union for Civil Liberties
v. UOI (2010) 5 SCC 318; People's Union for Civil
Liberties v. UOI (2004) 12 SCC 104; Paschim Banga
Khet Mazdoor Samity v. State of W.B. (1996) 4 SCC 37
: [1996] 2 Suppl. SCR 331; Sunil Batra v. Delhi Admn.
(1978) 4 SCC 494 : [1979] 1 SCR 392; Hussainara
Khatoon (IV) v. Home Secy. State of Bihar (1980) 1 SCC
98 : [1979] 3 SCR 532; People's Union for Civil
Liberties (PUCL) and Anr. Etc. v. Union of India and
Anr. (2003) 4 SCC 399 : [2003] 2 SCR 1136; Lal
Kamlendra Pratap Singh v. State of Uttar Pradesh and
Ors. (2009) 4 SCC 437 : [2009] 4 SCR 1027; Kartar
Singh v. State of Punjab (1994) 3 SCC 569 : [1994]
2 SCR 375; State of Punjab v. Dalbir Singh (2012) 3
SCC 346 : [2012] 4 SCR 608 - referred to.
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
890
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Case Law Reference
(1993) Suppl. 2 SCC 497
referred to
Para 12
2002 CriLJ 1392
referred to
Para 12
[2005] 2 SCR 188
referred to
Para 12
[2015] 7 SCR 132
referred to
Para 12
[1981] 3 SCR 564
referred to
Para 12
[2002] 5 Suppl. SCR 677
referred to
Para 13
[2009] 14 SCR 441
referred to
Para 13
[1980] 3 SCR 383
referred to
Para 15
(2017) 13 SCALE 609
referred to
Para 16
2004 CriLJ 2755
referred to
Para 21
2016 CriLJ 2217
referred to
Para 21
2015(4) BomCR(Crl) 545
referred to
Para 21
[2004] 6 Suppl. SCR 651
referred to
Para 27
[2012] 13 SCR 47
referred to
Para 27
[1978] 2 SCR 621
followed
Para 31
[1984] 2 SCR 67
relied on
Para 32
[1997] 3 Suppl. SCR 404
relied on
Para 32
(1983) 2 SCC 244
relied on
Para 32
[1996] 1 SCR 89
relied on
Para 32
[1996] 9 Suppl. SCR 726
relied on
Para 32
[1998] 2 SCR 795
relied on
Para 32
[2011] 15 SCR 1092
relied on
Para 32
[1989] 3 SCR 316
followed
Para 33
(2011) 13 SCC 706
relied on
Para 34
[1994] 3 Suppl. SCR 50
referred to
Para 35
[2016] 4 SCR 685
referred to
Para 35
A
B
C
D
E
F
G
H
891
(2017) 9 SCC 766
referred to
Para 35
[2006] 3 SCR 1132
referred to
Para 35
[2011] 5 SCR 353
referred to
Para 35
(2010) 5 SCC 318
referred to
Para 35
(2004) 12 SCC 104
referred to
Para 35
[1996] 2 Suppl. SCR 331
referred to
Para 35
[1979] 1 SCR 392
referred to
Para 35
[1979] 3 SCR 532
referred to
Para 35
(1994) 4 SCC 260
relied on
Para 36
[2014] 8 SCR 128
relied on
Para 36
[1996] 10 Suppl. SCR 284
relied on
Para 37
[2016] 3 SCR 865
relied on
Para 39
[1992] 2 Suppl. SCR 454
followed
Para 44
[2003] 2 SCR 1136
referred to
Para 45
[2012] 8 SCR 270
relied on
Para 54
(2014) 15 SCC 521
relied on
Para 54
[2014] 1 SCR 465
relied on
Para 55
[2009] 4 SCR 1027
referred to
Para 55
[1994] 2 SCR 375
referred to
Para 55
[1962] Suppl. 2 SCR 769
followed
Para 57
(2012)1 GLR 499
overruled
Para 63
[2012] 4 SCR 608
referred to
Para 64
[2008] 10 SCR 379
relied on
Para 65
[2010] 15 SCR 201
relied on
Para 71
(2016) 11 SCC 703
relied on
Para 71
(2000) 8 SCC 437
relied on
Para 72
(1992) 1 GLR 405
approved
Para 74
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR.
A
B
C
D
E
F
G
H
892
SUPREME COURT REPORTS
[2018] 4 S.C.R.
(1997) 2 GLR 942
approved
Para 74
[1995] 1 SCR 897
clarified
Para 74
[2017] 2 SCR 703
clarified
Para 74
[2013] 14 SCR 713
followed
Para 77
[1964] 3 SCR 221
relied on
Para 78
[1971] 1 SCR 304
relied on
Para 78
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 416 of 2018.
From the Judgment and Order dated 05.05.2017 of the High Court
of Judicature at Bombay in Criminal Application No. 1015 of 2016.
Maninder Singh, ASG, Amerander Sharan (AC), C. U. Singh,
Sr. Advs., Amit Anand Tiwari, Shashwat Singh, Samarth Khanna, Aprajita
Mukherjee, Ms. Garima Bode Dey, M. Y. Deshmukh, Nandkumar
N. Deshmukh, Shakti Pandey, Shrikant R. Deshmukh, Yatin M. Jagtap,
R. Balasubramanian, Shekhar Vyas, Prabhas Bajaj, Akshay Amritanshu,
Ms. Aarti Sharma, M. K. Maroria, Arpit Rai, Nishant Ramakantrao
Katneshwarkar, Abhay Anturkar, Abhay Anturkar & Associates, Gaurav
Agrawal, C. George Thomas, P. Angibabu, P.V. Saravanaraja, Neelesh
Singh Rao, Ms. Manisha T. Karia, Ms. Nidhi Nagpal, Ms. Saumya,
Shashank Mangal, Mayk Samy K., K. Muthu Ganesa Pandian,
P. Somasunder, Advs., for the appearing parties.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. This appeal has been
preferred against the order dated 5th May, 2017 of the High Court of
Judicature at Bombay in Criminal Application No.1015 of 2016.
2. On 20th 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 sought
sanction for his prosecution under the provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of
A
B
C
D
E
F
G
H
893
Atrocities) Act, 1989 and for certain other connected
offences. The said matter was dealt with by the petitioner
and sanction was declined. This led to another complaint
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 is falsely
made what is protection available against such abuse.
Needless to say that if the allegation is to be acted upon, the
proceedings can result in arrest or prosecution of the person
and have serious consequences on his right to liberty even
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 10th January, 2018.
In the meanwhile, there shall be stay of further proceedings.
Issue notice to Attorney General of India also as the issue
involves interpretation of a central statute.
Mr. Amrendra Sharan, learned senior counsel is requested
to assist the Court as amicus. Mr. Sharan will be at liberty
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 (Prevention of
Atrocities) Act, 1989 (the Atrocities Act) as also Sections 182, 192, 193,
203 and 219 read with 34 of the Indian Penal Code, 1860 (IPC). He was
serving as Director of Technical Education in the State of Maharashtra
at the relevant time.
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]
A
B
C
D
E
F
G
H
894
SUPREME COURT REPORTS
[2018] 4 S.C.R.
4. The second respondent - the complainant is an employee of the
department. He was earlier employed as a Store Keeper 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 Atrocities Act on 4th
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 21st December, 2010. The sanction was refused
by the appellant on 20th 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 Education was not
competent to grant/refuse sanction as the above two persons are Class-I
officers and only the State Government could grant sanction. Thus,
according to him, the appellant committed the offences alleged in the FIR
dated 28th March, 2016 by illegally dealing with the matter of sanction.
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 registered
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, Pharmacy
College Karad has been realized as accused in the present
crime. Investigation officer collect sufficient evidence
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 letter 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. Today 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.
A
B
C
D
E
F
G
H
895
In fact both the accused involved in crime No. 3122/09 are
working on class 1 post and to file a charge sheet against
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 right to
give permission. So Mr. Mahajan send letter to Mumbai
Office. Infact to give the required permission or to refuse
the permission is not comes under the jurisdiction of incharge
direction, Technical Education Mumbai. But, Mr. Mahajan
misused his powers so that, accused may be benefited, he
took the decision and refused the permission to file the charge
sheet against the accused. So that, investigation officer Shri
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.