# PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS

- **Citation:** [2020] 2 S.C.R. 727
- **Court:** Supreme Court of India
- **Decided:** 2020-02-10
- **Bench:** Arun Mishra, Vineet Saran, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prathvi-raj-chauhan-v-union-of-india-others-34359
- **Pages:** 36

## Headnote

Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.18A - Challenge to - Petitioners challenged
s.18A which was enacted owing to the judgment of Supreme Court
in Dr. Subhash Kashinath case reported as [2018] 4 SCR 877, mainly
because of direction nos.(iii) to (v) contained in para 83 inter alia
w.r.t holding preliminary inquiry for registration of FIR, necessity
to obtain approval of the appointing authority concerning arrest of
a public servant and of the SSP in other cases - Union of India
filed review petitions - Allowed - Direction nos. (iii) to (v) recalled
- Held: Per Arun Mishra and Vineet Saran, JJ. - Provisions made
in s.18A are rendered of academic use as they were enacted to take
care of mandate issued in Dr. Subhash Kashinath case which no more
prevails - A preliminary inquiry is permissible only in the
circumstances as per law laid down by Constitution Bench in Lalita
Kumari case - Further, concerning the applicability of provisions
of s.438, CrPC, it shall not apply to the cases under 1989 Act -
However, if the complaint does not make out a prima facie case under
1989 Act, the bar created by s.18 & 18A(i) shall not apply - In
exceptional cases, power can be exercised u/s.482, CrPC for
quashing cases to prevent misuse of provisions on settled
parameters, as observed in the review petitions - Per S. Ravindra
Bhat, J. (Supplementing) Any interference with the provisions of
the Act, particularly with respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar against
arrest of public servants accused of offences punishable under the
Act, would not be a positive step - Various reports, official data
including those released by the National Crime Records Bureau,
paint a dismal picture - While considering any application seeking
 [2020] 2 S.C.R. 727
727
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pre-arrest bail, the High Court has to balance the two interests: i.e.
that the power is not so used as to convert the jurisdiction into that
u/s.438, CrPC, but that it is used sparingly and such orders made
in very exceptional cases where no prima facie offence is made out
as shown in the FIR - Further also, if such orders are not made in
those classes of cases, the result would inevitably be miscarriage of
justice or abuse of process of law - Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Amednment Act, 2018 - Constitution
of India - Arts.14, 15, 17, 21, 23 & 24 - Code of Criminal Procdure,
1973 - ss.438 and 482 - Untouchability (Offences) Act, 1955 -
Civil Rights Act, 1955.
Disposing of the writ petitions, the Court
HELD: PER ARUN MISHRA, J. (for himself and VINEET
SARAN, J.)
Concerning the provisions contained in section 18A, with
respect to preliminary inquiry for registration of FIR, the general
directions (iii) and (iv) issued in Dr. Subhash Kashinath's case
have already been recalled. A preliminary inquiry is permissible
only in the circumstances as per the law laid down by a
Constitution Bench of Supreme Court in Lalita Kumari case, shall
hold good as explained in the order passed by Supreme Court in
the review petitions on 1.10.2019 and the amended provisions of
section 18A have to be interpreted accordingly. The provisions
which have been made in section 18A are rendered of academic
use as they were enacted to take care of mandate issued in Dr.
Subhash Kashinath which no more prevails. The provisions were
already in section 18 of the Act with respect to anticipatory bail.
Concerning the applicability of provisions of section 438 Cr.PC,
it shall not apply to the cases under Act of 1989. However, if the
complaint does not make out a prima facie case for applicability
of the provisions of the Act of 1989, the bar created by section 18
and 18A (i) shall not apply. This aspect has been clarified while
deciding the review petitions. The court can, in exceptional cases,
exercise power under section 482 Cr.PC for quashing the cases
t

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PRATHVI RAJ CHAUHAN
v.
UNION OF INDIA & OTHERS
(Writ Petition (C) No. 1015 of 2018)
FEBRUARY 10, 2020
[ARUN MISHRA, VINEET SARAN AND
S. RAVINDRA BHAT, JJ.]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - s.18A - Challenge to - Petitioners challenged
s.18A which was enacted owing to the judgment of Supreme Court
in Dr. Subhash Kashinath case reported as [2018] 4 SCR 877, mainly
because of direction nos.(iii) to (v) contained in para 83 inter alia
w.r.t holding preliminary inquiry for registration of FIR, necessity
to obtain approval of the appointing authority concerning arrest of
a public servant and of the SSP in other cases - Union of India
filed review petitions - Allowed - Direction nos. (iii) to (v) recalled
- Held: Per Arun Mishra and Vineet Saran, JJ. - Provisions made
in s.18A are rendered of academic use as they were enacted to take
care of mandate issued in Dr. Subhash Kashinath case which no more
prevails - A preliminary inquiry is permissible only in the
circumstances as per law laid down by Constitution Bench in Lalita
Kumari case - Further, concerning the applicability of provisions
of s.438, CrPC, it shall not apply to the cases under 1989 Act -
However, if the complaint does not make out a prima facie case under
1989 Act, the bar created by s.18 & 18A(i) shall not apply - In
exceptional cases, power can be exercised u/s.482, CrPC for
quashing cases to prevent misuse of provisions on settled
parameters, as observed in the review petitions - Per S. Ravindra
Bhat, J. (Supplementing) Any interference with the provisions of
the Act, particularly with respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar against
arrest of public servants accused of offences punishable under the
Act, would not be a positive step - Various reports, official data
including those released by the National Crime Records Bureau,
paint a dismal picture - While considering any application seeking
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727
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pre-arrest bail, the High Court has to balance the two interests: i.e.
that the power is not so used as to convert the jurisdiction into that
u/s.438, CrPC, but that it is used sparingly and such orders made
in very exceptional cases where no prima facie offence is made out
as shown in the FIR - Further also, if such orders are not made in
those classes of cases, the result would inevitably be miscarriage of
justice or abuse of process of law - Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Amednment Act, 2018 - Constitution
of India - Arts.14, 15, 17, 21, 23 & 24 - Code of Criminal Procdure,
1973 - ss.438 and 482 - Untouchability (Offences) Act, 1955 -
Civil Rights Act, 1955.
Disposing of the writ petitions, the Court
HELD: PER ARUN MISHRA, J. (for himself and VINEET
SARAN, J.)
Concerning the provisions contained in section 18A, with
respect to preliminary inquiry for registration of FIR, the general
directions (iii) and (iv) issued in Dr. Subhash Kashinath's case
have already been recalled. A preliminary inquiry is permissible
only in the circumstances as per the law laid down by a
Constitution Bench of Supreme Court in Lalita Kumari case, shall
hold good as explained in the order passed by Supreme Court in
the review petitions on 1.10.2019 and the amended provisions of
section 18A have to be interpreted accordingly. The provisions
which have been made in section 18A are rendered of academic
use as they were enacted to take care of mandate issued in Dr.
Subhash Kashinath which no more prevails. The provisions were
already in section 18 of the Act with respect to anticipatory bail.
Concerning the applicability of provisions of section 438 Cr.PC,
it shall not apply to the cases under Act of 1989. However, if the
complaint does not make out a prima facie case for applicability
of the provisions of the Act of 1989, the bar created by section 18
and 18A (i) shall not apply. This aspect has been clarified while
deciding the review petitions. The court can, in exceptional cases,
exercise power under section 482 Cr.PC for quashing the cases
to prevent misuse of provisions on settled parameters, as already
observed while deciding the review petitions. The challenge to
the provisions has been rendered academic. [Paras 8-11][750H; 751-A-H]
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Dr. Subhash Kashinath Mahajan v. The State of
Maharashtra & Anr. (2018) 6 SCC 454 : [2018] 4 SCR
877; State of M.P. & Anr. v. Ram Kishna Balothia &
Anr. (1995) 3 SCC 221 : [1995] 1 SCR 897; Vilas
Pandurang Pawar and Anr. v. State of Maharashtra &
Ors. (2012) 8 SCC 795 : [2012] 8 SCR 270; Shakuntla
Devi v. Baljinder Singh (2014) 15 SCC 521; Lalita
Kumari v. Government of U.P. (2014) 2 SCC 1 : [2013]
14 SCR 713 - referred to.
PER S. RAVINDRA BHAT, J.
1.1 Any interference with the provisions of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
particularly with respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar against
arrest of public servants accused of offences punishable under
the Act, would not be a positive step. The various reports,
recommendations and official data, including those released by
the National Crime Records Bureau, paint a dismal picture. The
figures reflected were that for 2014, instances of crimes recorded
were 40401; for 2015, the crime instances recorded were 38670
and for 2016, the registered crime incidents were 40801.
According to one analysis of the said 2016 report, 422,799 crimes
against scheduled caste communities' members and 81,332
crimes against scheduled tribe communities' members were
reported between 2006 and 2016. These facts, ought to be kept
in mind by courts which have to try and deal with offences under
the Act. It is important to keep oneself reminded that while
sometimes (perhaps mostly in urban areas) false accusations are
made, those are not necessarily reflective of the prevailing and
wide spread social prejudices against members of these oppressed
classes. Significantly, the amendment of 2016, in the expanded
definition of 'atrocity', also lists pernicious practices (under
Section 3) including forcing the eating of inedible matter, dumping
of excreta near the homes or in the neighbourhood of members
of such communities and several other forms of humiliation, which
members of such scheduled caste communities are subjected to.
All these considerations far outweigh the petitioners' concern
that innocent individuals would be subjected to what are described
as arbitrary processes of investigation and legal proceedings,
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS
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without adequate safeguards. The right to a trial with all attendant
safeguards are available to those accused of committing offences
under the Act; they remain unchanged by the enactment of the
amendment. As far as the provision of Section 18A and anticipatory
bail is concerned, the judgment of Mishra, J, has stated that in
cases where no prima facie materials exist warranting arrest in a
complaint, the court has the inherent power to direct a pre-arrest
bail. [Paras 17-19][760-C-G; 761-A-C]
1.2 While considering any application seeking pre-arrest
bail, the High Court has to balance the two interests: i.e. that the
power is not so used as to convert the jurisdiction into that under
Section 438 of the Criminal Procedure Code, but that it is used
sparingly and such orders made in very exceptional cases where
no prima facie offence is made out as shown in the FIR, and further
also that if such orders are not made in those classes of cases,
the result would inevitably be a miscarriage of justice or abuse of
process of law. Such stringent terms, otherwise contrary to the
philosophy of bail, are absolutely essential, because a liberal use
of the power to grant pre-arrest bail would defeat the intention of
Parliament. Unless provisions of the Act are enforced in their
true letter and spirit, with utmost earnestness and dispatch, the
dream and ideal of a casteless society will remain only a dream, a
mirage. The marginalization of scheduled caste and scheduled
tribe communities is an enduring exclusion and is based almost
solely on caste identities. It is to address problems of a segmented
society, that express provisions of the Constitution which give
effect to the idea of fraternity, or bandhutva (cU/kqRo) referred to
in the Preamble, and statutes like the Act, have been framed.
These underline the social - rather collective resolve - of
ensuring that all humans are treated as humans, that their innate
genius is allowed outlets through equal opportunities and each
of them is fearless in the pursuit of her or his dreams.
[Paras 20, 21][761-C-H]
Indira Sawhney v Union of India [1992] Suppl. 1 SCR
454; Raghunathrao Ganpatrao v. Union of India
[1993] 1 SCR 480; Nandini Sundar v. State of
Chhatisgarh (2011) 7 SCC 457; Dalit Human Rights v.
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Union of India (2017) 2 SCC 432 : [2016] 9 SCR 122;
Subhash Kashinath Mahajan v. State of Maharashtra
& Ors. (2018) 4 SCC 454 : [2018] 4 SCR 877; Union
of India v. State of Maharastra 2019 (13) SCALE 280
- referred to.
Guru Granth Saheb p.83; B. Shiva Rao: Framing of
India's Constitution Vol.III, Page 510 (1968); Report
on the Prevention of Atrocities against Scheduled Castes
Published by the National Human Rights Commission
(accessed at https://nhrc.nic.in/publications/otherpublicationss on 15 December, 2019 at 08:27 hrs);
Reports, recommendations and official data released
by National Crime Records Bureau (http://ncrb.gov.in/
StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf
containing statistics relating to crime against
members of scheduled caste and scheduled tribe
populations);Indiaspend(https://www.indiaspend.com/
over-a-decade-crime-rate-against-dalits-rose-by-746746/) - referred to.
Case Law Reference
In the Judgment of Arun Mishra and Vineet Saran, JJ.
[2018] 4 SCR 877
referred to
Para 2
[1995] 1 SCR 897
referred to
Para 5
[2012] 8 SCR 270
referred to
Para 6
(2014) 15 SCC 521
referred to
Para 7
[2013] 14 SCR 713
referred to
Para 8
In the Judgment of S. Ravindra Bhat, J.
[1992] Suppl. 1 SCR 454
referred to
Para 9
[1993] 1 SCR 480
referred to
Para 10
(2011) 7 SCC 457
referred to
Para 11
[2016] 9 SCR 122
referred to
Para 14
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS
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[2018] 4 SCR 877
referred to
Para 15
2019 (1) SCALE 280
referred to
Para 15
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1015 of 2018.
Under Article 32 of the Constitution of India
With
Writ Petition (C) No. 1016 of 2018.
K. K. Venugopal, Attorney General, Tushar Mehta, Solicitor
General, R. Balasubramaniam, Dinesh Kumar Goswami, Ashok Kumar
Sharma, Mohan Parasaran, R. S. Gerwal, Gopal Shankarnarayan,
Sr. Advs., Ms. Shraddha Deshmukh, Ankur Talwar, Raj Bahadur Yadav,
Shiv Mangal Sharma, Mrs. Anil Katiyar, Mithilesh Kumar Singh, Rudra
Vikram Singh, Parmanand Gaur, Mrs. Bandana Singh, Kshitij Mudgal,
Ekansh Bansal, Akhil Sharma, K. K. L. Gautam, A. K. Suman, P. S.
Nerwal, Bharat Ram, Rahul Mohod, Varun Mudgil, R. R. Bag, Sanjeev
Malhotra, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar,
Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, Ms. Sarita Devi,
Ms. Mamta Rani, Prabhoo Dayal Tiwari, Hitesh Kumar Sharma,
Ms. Savati Gerwal, Krishna Kapoor, Ms. Shashi Kiran, Satish Chandra,
Arjun Saini, Ms. Pooja Dhar, Ms. Gayatri Verma, Shurtanjya Bhardwaj,
Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmed, Kunal Yadav,
Ms. Neena Shukla, Alok Shukla, Manoj Gorkela, Ms. Hemlata Kharayat,
Ram Srivastava, Sandeep Kumar Singh (for M/s. Gorkela Law Office),
K. Paari Vendhan, Nilesh Ukey, Sabarish Subramanian, Prabu
Ramasubramanian, Y. William Vinoth Kumar, Vishnu Unnikrishnan,
Ms.Disha Wadekar, Paras Nath Singh, Avijit Bhattacharjee, Ms. Upma
Shrivastava, Ajoy Kumar Ghosh, Abhay Kant Mishra, G. Prakash, Jishnu
M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Prakash Sharma,
Anuj Saxena, Arup Banerjee, Mohd. Naved, Susheel Tomar, Balraj
Dewan, Smarhar Singh, Kumar Parimal, Ms. Shashi Kiran, Fuzail Ahmad
Ayyubi, Varinder Kumar Sharma, Anilendra Pandey, Advs. for the
appearing parties.
Petitioner-in-person.
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The Judgments of the Court were delivered by
ARUN MISHRA, J.*
1. The petitioners have questioned the provisions inserted by way
of carving out section 18A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as well as
section 18A, are reproduced hereunder:
"18. 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."
"Section 18A. (1) For the purposes of this Act,-
(a) preliminary enquiry shall not be required for registration of a
First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest,
if necessary, of any person, against whom an accusation of having
committed an offence under this Act has been made, and no
procedure other than that provided under this Act or the Code
shall apply.
(2) The provisions of section 438 of the Code shall not apply to a
case under this Act, notwithstanding any judgment or order or
direction of any Court."
2. It is submitted that section 18A has been enacted to nullify the
judgment of this Court in Dr. Subhash Kashinath Mahajan v. The
State of Maharashtra & Anr., (2018) 6 SCC 454, in which following
directions were issued:
"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 judgments of this Court in Balothia
(supra) and Manju Devi (supra);
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS
Ed. Note : Judgment delivered by Arun Mishra, J. (for himself and Vineet Saran, J.)
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(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 scrutinised 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 directions (iii) and (iv) will be actionable by
way of disciplinary action as well as contempt.
The above directions are prospective."
3. It has been submitted that this Court has noted in Dr. Subhash
Kashinath (supra) that the provisions of the Act of 1989 are being
misused as such the amendment is arbitrary, unjust, irrational and violative
of Article 21 of the Constitution of India. There could not have been any
curtailment of the right to obtain anticipatory bail under section 438 Cr.PC.
Prior scrutiny and proper investigation are necessary. Most of the
safeguards have been provided under the Act of 1989 to prevent undue
harassment. This Court has struck down the provision of section 66A of
the Information Technology Act on the ground of violation of fundamental
rights; on the same anvil, the provisions of section 18A of the Act of
1989 deserve to be struck down.
4. It is not disputed at the Bar that the provisions in section 18A in
the Act of 1989 had been enacted because of the judgment passed by
this Court in Dr. Subhash Kashinath's case (supra), mainly because of
direction Nos (iii) to (v) contained in para 83. The Union of India had
filed review petitions, and the same have been allowed, and direction
Nos (iii) to (v) have been recalled. Thus, in view of the judgment passed
in the review petitions, the matter is rendered of academic importance
as we had restored the position as prevailed by various judgments that
were in vogue before the matter of Dr. Subhash Kashinath (supra)
was decided. We are not burdening the decision as facts and reasons
have been assigned in detail while deciding review petitions on 1.10.2019
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and only certain clarifications are required in view of the provisions carved
out in section 18A. There can be protective discrimination, not reverse
one. We have dealt with various questions in the review petitions while
deciding the same as under:
"36. In the light of the discussion mentioned above of legal
principles, we advert to directions issued in paragraph 83. Direction
Nos. (iii) and (iv) and consequential direction No. (v) are sought
to be reviewed/recalled. Directions contain the following aspects:-
1. That arrest of a public servant can only be after approval of the
appointing authority.
2. The arrest of a non-public servant after approval by the Senior
Superintendent of Police (SSP).
3. The arrest may be in an appropriate case if considered necessary
for reasons to be recorded;
4. Reasons for arrest must be scrutinised by the Magistrate for
permitting further detention;
5. Preliminary enquiry to be conducted by the Dy. S.P. level officers
to find out whether the allegations make out a case and that the
allegations are not frivolous or motivated.
6. Any violation of the directions mentioned above will be actionable
by way of disciplinary action as well as contempt.
37. Before we dilate upon the aforesaid directions, it is necessary
to take note of certain aspects. It cannot be disputed that as the
members of the Scheduled Castes and Scheduled Tribes have
suffered for long; the protective discrimination has been envisaged
under Article 15 of the Constitution of India and the provisions of
the Act of 1989 to make them equals.
38. All the offences under the Atrocities Act are cognizable. The
impugned directions put the riders on the right to arrest. An accused
cannot be arrested in atrocities cases without the concurrence of
the higher Authorities or appointing authority as the case may be.
As per the existing provisions, the appointing authority has no
power to grant or withhold sanction to arrest concerning a public
servant.
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS
[ARUN MISHRA, J.]
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39. The National Commission for Scheduled Castes Annual Report
2015-16, has recommended for prompt registration of FIRs thus:
"The Commission has noted with concern that instances of
procedural lapses are frequent while dealing atrocity cases by
both police and civil administration. There are delays in the judicial
process of the cases. The Commission, therefore, identified
lacunae commonly noticed during police investigation, as also
preventive/curable actions the civil administration can take. NCSC
recommends the correct and timely application of SC/ST (PoA)
Amendment Act, 2015 and Amendment Rules of 2016 as well as
the following for improvement:
"8.6.1 Registration of FIRs - The Commission has observed
that the police often resort to preliminary investigation upon
receiving a complaint in writing before lodging the actual FIRs.
As a result, the SC victims have to resort to seeking directions
from courts for registration of FIRs u/s 156(3) of Cr.P.C.
Hon'ble Supreme Court has also on more than one occasion
emphasized about registration of FIR first. This Commission
again reemphasizes that the State / UT Governments should
enforce prompt registration of FIRs."
(emphasis supplied)
40. The learned Attorney General pointed out that the statistics
considered by the Court in the judgment under review indicate
that 9 to 10 percent cases under the Act were found to be false.
The percentage of false cases concerning other general crimes
such as forgery is comparable, namely 11.51 percent and for
kidnapping and abduction, it is 8.85 percent as per NCRB data
for the year 2016. The same can be taken care of by the Courts
under Section 482, and in case no prima facie case is made out,
the Court can always consider grant of anticipatory bail and power
of quashing in appropriate cases. For the low conviction rate, he
submitted that same is the reflection of the failure of the criminal
justice system and not an abuse of law. The witnesses seldom
come to support down-trodden class, biased mindset continues,
andthey are pressurised in several manners, and the complainant
also hardly muster the courage.
41. As to prevailing conditions in various areas of the country, we
are compelled to observe that SCs/STs are still making the struggle
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for equality and for exercising civil rights in various areas of the
country. The members of the Scheduled Castes and Scheduled
Tribes are still discriminated against in various parts of the country.
In spite of reservation, the fruits of development have not reached
to them, by and large, they remain unequal and vulnerable section
of the society. The classes of Scheduled Castes and Scheduled
Tribes have been suffering ignominy and abuse, and they have
been outcast socially for the centuries. The efforts for their
upliftment should have been percolated down to eradicate their
sufferings.
42. Though, Article 17 of the Constitution prohibits untouchability,
whether untouchability has vanished? We have to find the answer
to all these pertinent questions in the present prevailing social
scenario in different parts of the country. The clear answer is that
untouchability though intended to be abolished, has not vanished
in the last 70 years. We are still experimenting with 'tryst with
destiny.' The plight of untouchables is that they are still denied
various civil rights; the condition is worse in the villages, remote
areas where fruits of development have not percolated down.
They cannot enjoy equal civil rights. So far, we have not been
able to provide the modern methods of scavenging to Harijans
due to lack of resources and proper planning and apathy. Whether
he can shake hand with a person of higher class on equal footing?
Whether we have been able to reach that level of psyche and
human dignity and able to remove discrimination based upon caste?
Whether false guise of cleanliness can rescue the situation, how
such condition prevails and have not vanished, are we not
responsible? The answer can only be found by soul searching.
However, one thing is sure that we have not been able to eradicate
untouchability in a real sense as envisaged and we have not been
able to provide down-trodden class the fundamental civil rights
and amenities, frugal comforts of life which make life worth living.
More so, for Tribals who are at some places still kept in isolation
as we have not been able to provide them even basic amenities,
education and frugal comforts of life in spite of spending a
considerable amount for the protection, how long this would
continue. Whether they have to remain in the status quo and to
entertain civilized society? Whether under the guise of protection
of the culture, they are deprived of fruits of development, and
they face a violation of traditional rights?
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43. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963
SC 1295, this Court has observed that the right to life is not merely
an animal's existence. Under Article 21, the right to life includes
the right to live with dignity. Basic human dignity implies that all
the persons are treated as equal human in all respects and not
treated as an untouchable, downtrodden, and object for exploitation.
It also implies that they are not meant to be born for serving the
elite class based upon the caste. The caste discrimination had
been deep-rooted, so the consistent effort is on to remove it, but
still, we have to achieve the real goal. No doubt we have
succeeded partially due to individual and collective efforts.
44. The enjoyment of quality life by the people is the essence of
guaranteed right under Article 21 of the Constitution, as observed
in Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to
live with human dignity is included in the right to life as observed
in Francis Coralie Mullin v. Union Territory Delhi,
Administrator, AIR 1981 SC 746, Olga Tellis v. Bombay
Corporation, AIR 1986 SC 180. Gender injustice, pollution,
environmental degradation, malnutrition, social ostracism of Dalits
are instances of human rights violations as observed by this Court
in People's Union for Civil Liberties v. Union of India, (2005)
2 SCC 436:
"34. The question can also be examined from another angle.
The knowledge or experience of a police officer of human
rights violation represents only one facet of human rights
violation and its protection, namely, arising out of crime. Human
rights violations are of various forms which besides police
brutality are - gender injustice, pollution, environmental
degradation, malnutrition, social ostracism of Dalits, etc. A police
officer can claim to have experience of only one facet. That is
not the requirement of the section." (emphasis supplied)
45. There is right to live with dignity and also right to die with
dignity. For violation of human rights under Article 21 grant of
compensation is one of the concomitants which has found statutory
expression in the provisions of compensation, to be paid in case
an offence is committed under the provisions of the Act of 1989.
A good reputation is an element of personal security and is
protected by the Constitution equally with the right to the
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enjoyment of life, liberty, and property. Therefore, it has been
held to be an essential element of the right to life of a citizen
under Article 21 as observed by this Court in Umesh Kumar v.
State of Andhra Pradesh, (2013) 10 SCC 591, Kishore Samrite
v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian
Swamy v. Union of India, (2016) 7 SCC 221. The provisions of
the Act of 1989 are, in essence, concomitants covering various
facets of Article 21 of the Constitution of India.
46. They do labour, bonded or forced, in agricultural fields, which
is not abrogated in spite of efforts. In certain areas, women are
not treated with dignity and honour and are sexually abused in
various forms. We see sewer workers dying in due to poisonous
gases in chambers. They are like death traps. We have not been
able to provide the masks and oxygen cylinders for entering in
sewer chambers, we cannot leave them to die like this and avoid
tortious liability concerned with officials/machinery, and they are
still discriminated within the society in the matter of enjoying their
civil rights and cannot live with human dignity.
47. The Constitution of India provides equality before the law
under the provisions contained in Article 14. Article 15(4) of the
Constitution carves out an exception for making any special
provision for the advancement of any socially and educationally
backward classes of citizens or SCs. and STs. Further protection
is conferred under Article 15(5) concerning their admission to
educational institutions, including private educational institutions,
whether aided or unaided by the State, other than the minority
educational institutions. Historically disadvantageous groups must
be given special protection and help so that they can be uplifted
from their poverty and low social status as observed in Kailas &
Ors. v. State of Maharashtra, 2011 (1) SCC 793. The legislature
has to attempt such incumbents be protected under Article 15(4),
to deal with them with more rigorous provisions as compared to
provisions of general law available to the others would create
inequality which is not permissible/envisaged constitutionally. It
would be an action to negate mandatory constitutional provisions
not supported by the constitutional scheme; rather, it would be
against the mandated constitutional protection. It is not open to
the legislature to put members of the Scheduled Castes and
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Scheduled Tribes in a disadvantageous position vis-à-vis others
and in particular to so-called upper castes/general category. Thus,
they cannot be discriminated against more so when we have a
peep into the background perspective. What legislature cannot do
legitimately, cannot be done by the interpretative process by the
courts.
48. The particular law, i.e., Act of 1989, has been enacted and
has also been amended in 2016 to make its provisions more
effective. Special prosecutors are to be provided for speedy trial
of cases. The incentives are also provided for rehabilitation of
victims, protection of witnesses and matters connected therewith.
49. There is no presumption that the members of the Scheduled
Castes and Scheduled Tribes may misuse the provisions of law as
a class and it is not resorted to by the members of the upper
Castes or the members of the elite class. For lodging a false report,
it cannot be said that the caste of a person is the cause. It is due
to the human failing and not due to the caste factor. Caste is not
attributable to such an act. On the other hand, members of the
Scheduled Castes and Scheduled Tribes due to backwardness
hardly muster the courage to lodge even a first information report,
much less, a false one. In case it is found to be false/
unsubstantiated, it may be due to the faulty investigation or for
other various reasons including human failings irrespective of caste
factor. There may be certain cases which may be false that can
be a ground for interference by the Court, but the law cannot be
changed due to such misuse. In such a situation, it can be taken
care in proceeding under section 482 of the Cr.PC.
50. The data of National Crime Records Bureau, Ministry of Home
Affairs, has been pointed out on behalf of Union of India which
indicates that more than 47,000 cases were registered in the year
2016 under the Act of 1989. The number is alarming, and it cannot
be said that it is due to the outcome of the misuse of the provisions
of the Act.
51. As a matter of fact, members of the Scheduled Castes and
Scheduled Tribes have suffered for long, hence, if we cannot
provide them protective discrimination beneficial to them, we
cannot place them at all at a disadvantageous position that may
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be causing injury to them by widening inequality and against the
very spirit of our Constitution. It would be against the basic human
dignity to treat all of them as a liar or as a crook person and
cannot look at every complaint by such complainant with a doubt.
Eyewitnesses do not come up to speak in their favour. They hardly
muster the courage to speak against upper caste, that is why
provisions have been made by way of amendment for the protection
of witnesses and rehabilitation of victims. All humans are equal
including in their frailings. To treat SCs. and STs. as persons who
are prone to lodge false reports under the provisions of the
Scheduled Castes and Scheduled Tribes Act for taking revenge
or otherwise as monetary benefits made available to them in the
case of their being subjected to such offence, would be against
fundamental human equality. It cannot be presumed that a person
of such class would inflict injury upon himself and would lodge a
false report only to secure monetary benefits or to take revenge.
If presumed so, it would mean adding insult to injury, merely by
the fact that person may misuse provisions cannot be a ground to
treat class with doubt. It is due to human failings, not due to the
caste factor. The monetary benefits are provided in the cases of
an acid attack, sexual harassment of SC/ST women, rape, murder,
etc. In such cases, FIR is required to be registered promptly.
52. It is an unfortunate state of affairs that the caste system still
prevails in the country and people remain in slums, more particularly,
under skyscrapers, and they serve the inhabitants of such buildings.
53. To treat such incumbents with a rider that a report lodged by
an SCs/STs category, would be registered only after a preliminary
investigation by Dy. S.P., whereas under Cr.PC a complaint lodged
relating to cognizable offence has to be registered forthwith. It
would mean a report by upper-caste has to be registered
immediately and arrest can be made forthwith, whereas, in case
of an offence under the Act of 1989, it would be conditioned one.
It would be opposed to the protective discrimination meted out to
the members of the Scheduled Castes and Scheduled Tribes as
envisaged under the Constitution in Articles 15, 17 and 21 and
would tantamount to treating them as unequal, somewhat supportive
action as per the mandate of Constitution is required to make
them equals. It does not prima facie appear permissible to look
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them down in any manner. It would also be contrary to the
procedure prescribed under the Cr.PC and contrary to the law
laid down by this Court in Lalita Kumari (supra).
54. The guidelines in (iii) and (iv) appear to have been issued in
view of the provisions contained in Section 18 of the Act of 1989;
whereas adequate safeguards have been provided by a purposive
interpretation by this Court in the case of State of M.P. v. R.K.
Balothia, (1995) 3 SCC 221. The consistent view of this Court
that if prima facie case has not been made out attracting the
provisions of SC/ST Act of 1989, in that case, the bar created
under section 18 on the grant of anticipatory bail is not attracted.
Thus, misuse of the provisions of the Act is intended to be taken
care of by the decision above. In Kartar Singh (supra), a
Constitution Bench of this Court has laid down that taking away
the said right of anticipatory bail would not amount to a violation
of Article 21 of the Constitution of India. Thus, prima facie it
appears that in the case of misuse of provisions, adequate
safeguards are provided in the decision mentioned above.
55. That apart directions (iii) and (iv) issued may delay the
investigation of cases. As per the amendment made in the Rules
in the year 2016, a charge sheet has to be filed to enable timely
commencement of the prosecution. The directions issued are likely
to delay the timely scheme framed under the Act/Rules.
In re: sanction of the appointing authority :
56. Concerning public servants, the provisions contained in Section
197, Cr.PC provide protection by prohibiting cognizance of the
offence without the sanction of the appointing authority and the
provision cannot be applied at the stage of the arrest. That would
run against the spirit of Section 197, Cr.PC. Section 41, Cr.PC
authorises every police officer to carry out an arrest in case of a
cognizable offence and the very definition of a cognizable offence
in terms of Section 2(c) of Cr.PC is one for which police officer
may arrest without warrant.
57. In case any person apprehends that he may be arrested,
harassed and implicated falsely, he can approach the High Court
for quashing the FIR under Section 482 as observed in State of
Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.
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58. While issuing guidelines mentioned above approval of appointing
authority has been made imperative for the arrest of a public servant
under the provisions of the Act in case, he is an accused of having
committed an offence under the Act of 1989. Permission of the
appointing authority to arrest a public servant is not at all statutorily
envisaged; it is encroaching on a field which is reserved for the
legislature. The direction amounts to a mandate having legislative
colour which is a field not earmarked for the Courts.
59. The direction is discriminatory and would cause several legal
complications. On what basis the appointing authority would grant
permission to arrest a public servant? When the investigation is
not complete, how it can determine whether public servant is to
be arrested or not? Whether it would be appropriate for appointing
authority to look into case diary in a case where its sanction for
prosecution may not be required in an offence which has not
happened in the discharge of official duty. Approaching appointing
authority for approval of arrest of a public servant in every case
under the Act of 1989 is likely to consume sufficient time. The
appointing authority is not supposed to know the ground realities
of the offence that has been committed, and arrest sometimes
becomes necessary forthwith to ensure further progress of the
investigation itself. Often the investigation cannot be completed
without the arrest. There may not be any material before the
appointing authority for deciding the question of approval. To decide
whether a public servant should be arrested or not is not a function
of appointing authority, it is wholly extra-statutory. In case
appointing authority holds that a public servant is not to be arrested
and declines approval, what would happen, as there is no provision
for grant of anticipatory bail. It would tantamount to take away
functions of Court. To decide whether an accused is entitled to
bail under Section 438 in case no prima faciecase is made out or
under Section 439 is the function of the Court. The direction of
appointing authority not to arrest may create conflict with the
provisions of Act of 1989 and is without statutory basis.
60. By the guidelines issued, the anomalous situation may crop up
in several cases. In case the appointing authority forms a view
that as there is no prima facie case the incumbent is not to be
arrested, several complications may arise. For the arrest of an
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offender, maybe a public servant, it is not the provision of the
general law of Cr.PC that permission of the appointing authority
is necessary. No such statutory protection provided to a public
servant in the matter of arrest under the IPC and the Cr.PC as
such it would be discriminatory to impose such rider in the cases
under the Act of 1989. Only in the case of discharge of official
duties, some offence appears to have been committed, in that
case, sanction to prosecute may be required and not otherwise.
In case the act is outside the purview of the official discharge of
duty, no such sanction is required.
61. The appointing authority cannot sit over an FIR in case of
cognizable, non-bailable offense and investigation made by the
Police Officer; this function cannot be conferred upon the
appointing authority as it is not envisaged either in the Cr.P.C. or
the Act of 1989. Thus, this rider cannot be imposed in respect of
the cases under the Act of 1989, may be that provisions of the
Act are sometimes misused, exercise of power of approval of
arrest by appointing authority is wholly impermissible, impractical
besides it encroaches upon the field reserved for the legislature
and is repugnant to the provisions of general law as no such rider
is envisaged under the general law.
62.