# UNION OF INDIA v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [2019] 12 S.C.R. 1125
- **Court:** Supreme Court of India
- **Decided:** 2019-10-01
- **Case number:** Criminal Appeal No.416 of 2018
- **Bench:** Arun Mishra, M.R. Shah, B.R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-state-of-maharashtra-and-ors-33131
- **Pages:** 54

## Headnote

Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Supreme Court in Dr. Subhash Kashinath
Mahajan v. State of Maharashtra reported as [2018] 4 SCR 877, while
dealing with the 1989 Act issued guidelines inter alia viz.- (iii) in
view of acknowledged abuse of law of arrest under the 1989 Act,
arrest of public servant can only be after approval of the appointing
authority and in case of non-public servant after approval by the
S.S.P; (iv) preliminary inquiry by Dy.S.P to find out whether
allegations make out a case under the 1989 Act and that the same
are not frivolous/motivated - Review of - Held: As the members of
the Scheduled Castes and Scheduled Tribes have suffered for long;
protective discrimination has been envisaged u/Art.15 and the 1989
Act to make them equals - Offences under the 1989 Act are
cognizable - Impugned directions put riders on the right to arrest -
It is not open to the legislature to put members of SCs and STs in
disadvantageous position vis-à-vis others and in particular to socalled upper castes/general category -What legislature cannot do
legitimately, cannot be done by the interpretative process by the
courts - For lodging false report, the caste of person is not the
cause - It is due to the human failing and not due to the caste
factor - There may be certain false cases and that can be ground
for interference by the Court u/s.482, CrPC, but the law cannot be
changed due to such misuse -More than 47,000 cases were
registered in 2016 under the 1989 Act -Number is alarming, and it
cannot be said that it is due to the misuse of the Act - To say that
report lodged by an SC/ST would be registered only after preliminary
investigation by Dy. S.P, whereas under Cr.PC a complaint lodged
[2019] 12 S.C.R. 1125
 1125
A
B
C
D
E
F
G
H
1126
SUPREME COURT REPORTS
[2019] 12 S.C.R.
relating to cognizable offence has to be registered forthwith, would
mean that report by upper-caste has to be registered immediately
and arrest be made forthwith and thus, would be opposed to the
protective discrimination meted out to the members of the SCs and
STs as envisaged u/Arts.15, 17 & 21- Guidelines (iii), (iv) appear
to have been issued in view of the provisions of s.18, 1989 Act,
whereas adequate safeguards have been provided by purposive
interpretation by Supreme Court in State of M.P. v. R.K. Balothia
[1995] 1 SCR 897 - Permission of the appointing authority to arrest
public servant is not at all statutorily envisaged and amounts to
mandate having legislative colour which is a field not earmarked
for the Courts - If at the threshold, approval of appointing authority
is made necessary for arrest, the very purpose of the Act is likely to
be frustrated - Various complications may arise- Further, in case
of non-public servant requiring the approval of SSP for the arrest
of accused could not have been made sine qua non, as it may delay
the matter - As the approval of arrest by appointing authority/S.S.P.
have not been approved, the direction to record reasons and scrutiny
by Magistrate consequently stands nullified - Direction nos.(iii),
(iv) issued by Supreme Court recalled - Consequently, direction
no.(v) also vanishes -Constitution of India- Arts.15, 17, 21 and
142 - Code of Criminal Procedure, 1973 -ss. 2(c), 41, 197, 438 &
482- Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 - r.7(2) - Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Rules, 2016.
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 -s.18 - Held: Provision of s.18 cannot be said
to be violative of Art.21 - Constitution of India - Art.21.
Constitution of India - Art.142 - Exercise of powers under -
Impugned guidelines/directions issued by the Supreme Court in Dr.
Subhash Kashinath Mahajan v. State of Maharashtra reported as [2018]
4 SCR 877, inter alia directing that under the 1989 Act, arrest of
public servant can only be after approval of the ap

## Text

_Characters 0–39,941 of 123,476. This is a partial read: ask again with offset=39941 for what follows._

A
B
C
D
E
F
G
H
1125
 UNION OF INDIA
v.
STATE OF MAHARASHTRA AND ORS.
(Review Petition (Crl.) No. 228 of 2018)
in
 (Criminal Appeal No.416 of 2018)
OCTOBER 01, 2019
[ARUN MISHRA, M.R. SHAH AND B.R. GAVAI, JJ.]
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - Supreme Court in Dr. Subhash Kashinath
Mahajan v. State of Maharashtra reported as [2018] 4 SCR 877, while
dealing with the 1989 Act issued guidelines inter alia viz.- (iii) in
view of acknowledged abuse of law of arrest under the 1989 Act,
arrest of public servant can only be after approval of the appointing
authority and in case of non-public servant after approval by the
S.S.P; (iv) preliminary inquiry by Dy.S.P to find out whether
allegations make out a case under the 1989 Act and that the same
are not frivolous/motivated - Review of - Held: As the members of
the Scheduled Castes and Scheduled Tribes have suffered for long;
protective discrimination has been envisaged u/Art.15 and the 1989
Act to make them equals - Offences under the 1989 Act are
cognizable - Impugned directions put riders on the right to arrest -
It is not open to the legislature to put members of SCs and STs in
disadvantageous position vis-à-vis others and in particular to socalled upper castes/general category -What legislature cannot do
legitimately, cannot be done by the interpretative process by the
courts - For lodging false report, the caste of person is not the
cause - It is due to the human failing and not due to the caste
factor - There may be certain false cases and that can be ground
for interference by the Court u/s.482, CrPC, but the law cannot be
changed due to such misuse -More than 47,000 cases were
registered in 2016 under the 1989 Act -Number is alarming, and it
cannot be said that it is due to the misuse of the Act - To say that
report lodged by an SC/ST would be registered only after preliminary
investigation by Dy. S.P, whereas under Cr.PC a complaint lodged
[2019] 12 S.C.R. 1125
 1125
A
B
C
D
E
F
G
H
1126
SUPREME COURT REPORTS
[2019] 12 S.C.R.
relating to cognizable offence has to be registered forthwith, would
mean that report by upper-caste has to be registered immediately
and arrest be made forthwith and thus, would be opposed to the
protective discrimination meted out to the members of the SCs and
STs as envisaged u/Arts.15, 17 & 21- Guidelines (iii), (iv) appear
to have been issued in view of the provisions of s.18, 1989 Act,
whereas adequate safeguards have been provided by purposive
interpretation by Supreme Court in State of M.P. v. R.K. Balothia
[1995] 1 SCR 897 - Permission of the appointing authority to arrest
public servant is not at all statutorily envisaged and amounts to
mandate having legislative colour which is a field not earmarked
for the Courts - If at the threshold, approval of appointing authority
is made necessary for arrest, the very purpose of the Act is likely to
be frustrated - Various complications may arise- Further, in case
of non-public servant requiring the approval of SSP for the arrest
of accused could not have been made sine qua non, as it may delay
the matter - As the approval of arrest by appointing authority/S.S.P.
have not been approved, the direction to record reasons and scrutiny
by Magistrate consequently stands nullified - Direction nos.(iii),
(iv) issued by Supreme Court recalled - Consequently, direction
no.(v) also vanishes -Constitution of India- Arts.15, 17, 21 and
142 - Code of Criminal Procedure, 1973 -ss. 2(c), 41, 197, 438 &
482- Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 - r.7(2) - Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Rules, 2016.
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 -s.18 - Held: Provision of s.18 cannot be said
to be violative of Art.21 - Constitution of India - Art.21.
Constitution of India - Art.142 - Exercise of powers under -
Impugned guidelines/directions issued by the Supreme Court in Dr.
Subhash Kashinath Mahajan v. State of Maharashtra reported as [2018]
4 SCR 877, inter alia directing that under the 1989 Act, arrest of
public servant can only be after approval of the appointing authority;
in case of non-public servant after approval by the S.S.P and also
for a preliminary inquiry by Dy.S.P to find out whether allegations
make out a case under the Act and that the same are not frivolous/
motivated - Held: Directions encroach upon the field reserved for
A
B
C
D
E
F
G
H
1127
the legislature and are against the concept of protective
discrimination in favour of down-trodden classes u/Art.15(4) and
also impermissible within the parameters laid down by Supreme Court
for exercise of powers u/Art.142 - Impugned directions recalled -
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
Judicial Review - Scope of and issuance of guidelines -
Discussed.
Allowing the review petitions, the Court
HELD: 1.1 The provision of Section 18 of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 cannot be said to be violative of Article 21. 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. All the offences under the
Atrocities Act are cognizable. The impugned directions put the
riders on the right to arrest. As per the existing provisions, the
appointing authority has no power to grant or withhold sanction
to arrest concerning a public servant. SCs/STs are still making
the struggle 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 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.[Paras 19, 37, 38 and 41] [1150B; 1167-B-C; 1168-D-E]
1.2 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
enjoyment of life, liberty, and property. Therefore, it has been
 UNION OF INDIA v. STATE OF MAHARASHTRA
A
B
C
D
E
F
G
H
1128
SUPREME COURT REPORTS
[2019] 12 S.C.R.
held to be an essential element of the right to life of a citizen
under Article 21. The provisions of the Act of 1989 are, in essence,
concomitants covering various facets of Article 21 of the
Constitution of India. 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. 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 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.
What legislature cannot do legitimately, cannot be done by the
interpretative process by the courts. 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.[Paras 45, 47 & 48] [1170-C-E, G;
1171-A-E]
1.3 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
A
B
C
D
E
F
G
H
1129
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. 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. 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. 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. 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. 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
 UNION OF INDIA v. STATE OF MAHARASHTRA
A
B
C
D
E
F
G
H
1130
SUPREME COURT REPORTS
[2019] 12 S.C.R.
Constitution is required to make them equals. 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. 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. The consistent view of Supreme 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, a Constitution Bench of this Court 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. 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.
[Paras 49-55] [1171-F-G; 1172-A-C, E-H; 1173-A-G]
In re: sanction of the appointing authority:
1.5 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. 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. Permission of the appointing authority to arrest a public
A
B
C
D
E
F
G
H
1131
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. The direction is discriminatory and
would cause several legal complications.To decide whether an
accused is entitled to bail under Section 438 in case no prima
facie case 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. [Paras 56-59] [1173-H; 1174-A-E; 1175-A-B]
1.6 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 offender, may be 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. 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. It is
not the function of the appointing authority to intermeddle with a
criminal investigation. If at the threshold, approval of appointing
authority is made necessary for arrest, the very purpose of the
Act is likely to be frustrated. Various complications may arise.
[Paras 60-62] [1175-C-F; 1176-C]
In ref: approval of arrest by the SSP in the case of a nonpublic servant:
 UNION OF INDIA v. STATE OF MAHARASHTRA
A
B
C
D
E
F
G
H
1132
SUPREME COURT REPORTS
[2019] 12 S.C.R.
1.7 Inter alia for the reasons as mentioned earlier, requiring
the approval of SSP before an arrest is not warranted in such a
case as that would be discriminatory and against the protective
discrimination envisaged under the Act. Apart from that, no such
guidelines can prevail, which are legislative. When there is no
provision for anticipatory bail, obviously arrest has to be made.
Without doubting bona fides of any officer, it cannot be left at the
sweet discretion of the incumbent howsoever high. For an arrest
of accused such a condition of approval of SSP could not have
been made a sine qua non, it may delay the matter in the cases
under the Act of 1989. [Para 63] [1176-D-F]
Requiring the Magistrate to scrutinise the reasons for
permitting further detention:
1.8 The reasons so recorded have to be considered by the
Magistrate for permitting further detention. In case of approval
has not been granted, this exercise has not been undertaken.
When the offence is registered under the Act of 1989, the law
should take its course. Even otherwise, the approval of arrest by
appointing authority/S.S.P. has not been approved, the direction
to record reasons and scrutiny by Magistrate consequently stands
nullified. In case a cognisable offence is made out, the FIR has to
be outrightly registered, and no preliminary inquiry has to be
made as held in Lalita Kumari by a Constitution Bench. There is
no such provision in the Code of Criminal Procedure for
preliminary inquiry or under the SC/ST Act, as such direction is
impermissible. Moreover, it is ordered to be conducted by the
person of the rank of Dy. S.P. The number of Dy. S.P. as per stand
of Union of India required for such an exercise of preliminary
inquiry is not available. The direction (iv) cannot survive for the
other reasons as it puts the members of the Scheduled Castes
and Scheduled Tribes in a disadvantageous position in the matter
of procedure vis-a-vis to the complaints lodged by members of
upper caste, for later no such preliminary investigation is
necessary, in that view of matter it should not be necessary to
hold preliminary inquiry for registering an offence under the
Atrocities Act of 1989. Directions encroach upon the field
reserved for the legislature and against the concept of protective
A
B
C
D
E
F
G
H
1133
discrimination in favour of down-trodden classes under Article
15(4) of the Constitution and also impermissible within the
parameters laid down by this Court for exercise of powers under
Article 142 of Constitution of India. Resultantly, direction Nos.(iii)
and (iv) issued by this Court are recalled and consequently it is
held that direction No.(v), also vanishes. [Paras 64-66] [1176-GH; 1177-A-F, H; 1178-A-B]
Lalita Kumari v. Government of U.P. (2014) 2 SCC 1:
[2013] 14 SCR 713 ; Kartar Singh v. State of Punjab
(1994) 3 SCC 569 : [1994] 2 SCR 375 ; Bachan Singh
v. the State of Punjab (1980) 2 SCC 684 ; Kesavananda
Bharati v. State of Kerala (1973) 4 SCC 225 : [1973]
Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC
1 : [2007] 1 SCR 706; Bhim Singh v. Union of India
(2010) 5 SCC 53 ; State of T.N v. State of Kerala (2014)
12 SCC 696 : [2014] 12 SCR 875 ; Khadak Singh v.
State of Himachal Pradesh AIR 1963 SC 1295 :
[1964] SCR 332 ; Olga Tellis v. Bombay Corporation
AIR 1986 SC 180 : [1985] 2 Suppl. SCR 51 - followed.
National Campaign on Dalit Human Rights & Ors v.
Union of India & Ors. (2017) 2 SCC 432 : [2016] 9
SCR 122 ; State of M.P. v. Ram Krishna Balothia
(1995) 3 SCC 221 : [1995] 1 SCR 897; Subramanian
Swamy & Ors. v. Raju (2014) 8 SCC 390 : [2014] 9
SCR 283 ; Asif Hameed & Ors. v. State of Jammu and
Kashmir & Ors. 1(989) 2 Suppl. SCC 364 : [1989] 3
SCR 19 ; Indian Drugs & Pharmaceuticals Ltd. v.
Workmen, Indian Drugs & Pharmaceuticals Ltd.
(2007) 1 SCC 408 : [2006] 9 Suppl. SCR 73; Divisional
Manager, Aravali Golf Club v. Chander Hass (2008) 1
SCC 683 : [2007] 12 SCR 1084 ; Kuchchh Jal Sankat
Nivaran Samili & Ors. v. State of Gujarat & Anr.
(2013) 12 SCC 226 ; Hinch Lal Tiwari v. Kamla Devi
(2001) 6 SC 496 : [2001] 1 Suppl.SCR 23 ; Francis
Coralie Mullin v. Union Territory Delhi, Administrator
AIR 1981 SC 746 : [1981] 2 SCR 516 ; People's Union
for Civil Liberties v. Union of India (2005) 2 SCC
436 : [2005] 1 SCR 494; Umesh Kumar v. State of
 UNION OF INDIA v. STATE OF MAHARASHTRA
A
B
C
D
E
F
G
H
1134
SUPREME COURT REPORTS
[2019] 12 S.C.R.
Andhra Pradesh (2013) 10 SCC 591 : [2013] 14 SCR
213; Kishore Samrite v. State of Uttar Pradesh (2013)
2 SCC 398 : [2012] 9 SCR 733 ; Subramanian Swamy
v. Union of India (2016) 7 SCC 221 : [2016] 3 SCR
865 ; Kailas & Ors. v. State of Maharashtra (2011) 1
SCC 793 : [2011] 1 SCR 94 ; State of Orissa v.
Debendra Nath Padhi (2005) 1 SCC 568 : [2004] 6
Suppl. SCR 460 - relied on.
State of Haryana & Ors. v. Bhajan Lal & Ors. (1992) 1
Suppl. SCC 335 : [1990] 3 Suppl. SCR 259; Supreme
Court Bar Association v. Union of India (1998) 4 SCC
409 : [1998] 2 SCR 795 ; Prem Chand Garg v. Excise
Commr. AIR 1963 SC 996 : [1963] Suppl. SCR 885;
E.S.P. Rajaram v. Union of India (2001) 2 SCC 186:
[2001] 1 SCR 203; A.R. Antulay v. R.S. Nayak (1988)
2 SCC 602 ; Bonkya v. State of Maharashtra (1995) 6
SCC 447:[1995] 4 Suppl. SCR 89; M.C. Mehta v.
Kamal Nath (2000) 6 SCC 213 : [2000] 1 Suppl. SCR
389 ; State of Punjab v. Rajesh Syal (2002) 8 SCC 158
: [2002] 3 Suppl. SCR 124; Textile Labour Association
v. Official Liquidator (2004) 9 SCC 741 : [2004] 3 SCR
1161 ; Laxmidas Morarji v. Behrose Darab Madan
(2009) 10 SCC 425 : [2009] 14 SCR 777; Manish Goel
v. Rohini Goel (2010) 4 SCC 393 : [2010] 2 SCR
414 ; A.B. Bhaskara Rao v. CBI (2011) 10 SCC 259 :
[2011] 12 SCR 718 ; State of Punjab v. Rafiq Masih
(2014) 8 SCC 883 : [2014] 8 SCR 228; Vishakha v.
State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl.
SCR 404; S.C. Chandra v. State of Jharkhand (2007)
8 SCC 279 : [2007] 9 SCR130 ; Dr. Subhash Kashinath
Mahajan v. State of Maharashtra (2018) 6 SCC 454 :
[2018] 4 SCR 877 - referred to.
Stock v. Frank Jones (Tipton), 1978 (1) WLR 231
- referred to.
Salmond on Jurisprudence, 12th Edition; Sweet &
Maxwell - referred to.
A
B
C
D
E
F
G
H
1135
Case Law Reference
[2016] 9 SCR 122
 relied on
Para 15
[2013] 14 SCR 713
 followed
Para 16
[1990] 3 Suppl. SCR 259 referred to
Para 17
[1995] 1 SCR 897
relied on
Para 18
[1994] 2 SCR 375
followed
Para 19
[2014] 9 SCR 283
relied on
Para 20
[1998] 2 SCR 795
referred to
Para 21 (a)
[1963] Suppl. SCR 885
referred to
Para 21 (b)
[2001] 1 SCR 203
referred to
Para 21 (c)
(1988) 2 SCC 602
referred to
Para 21 (d)
[1995] 4 Suppl. SCR 89 referred to
Para 21(e)
[2000] 1 Suppl. SCR 389 referred to
Para 21 (f)
[2002] 3 Suppl. SCR 124 referred to
Para 21 (g)
[2004] 3 SCR 1161
 referred to
Para 21(h)
[2009] 14 SCR 777
 referred to
Para 21 (i)
[2010] 2 SCR 414
 referred to
Para 21 (j)
[2011] 12 SCR 718
 referred to
Para 21(k)
[2014] 8 SCR 228
 referred to
Para 21 (l)
[1997] 3 Suppl. SCR 404 referred to
Para 22
(1980) 2 SCC 684
 followed
Para 24
[1989] 3 SCR 19
 relied on
Para 25
[2007] 9 SCR 130
 referred to
Para 25
[2006] 9 Suppl. SCR 73 relied on
Para 26
[2007] 12 SCR 1084 relied on
Para 27
(2013) 12 SCC 226
relied on
Para 28
[2018] 4 SCR 877
 referred to
Para 29
 UNION OF INDIA v. STATE OF MAHARASHTRA
A
B
C
D
E
F
G
H
1136
SUPREME COURT REPORTS
[2019] 12 S.C.R.
[1973] Suppl. SCR 1
followed
Para 30
[2007] 1 SCR 706
followed
Para 31
(2010) 5 SCC 53
followed
Para 32
[2014] 12 SCR 875
followed
Para 33
[1964] SCR 332
followed
Para 43
[2001] 1 Suppl. SCR 23 relied on
Para 44
[1981] 2 SCR 516
relied on
Para 44
[1985] 2 Suppl. SCR 51 followed
Para 44
[2005] 1 SCR 494
relied on
Para 44
[2013] 14 SCR 213
relied on
Para 45
[2012] 9 SCR 733
relied on
Para 45
[2016] 3 SCR 865
relied on
Para 45
[2011] 1 SCR 94
relied on
Para 47
[2004] 6 Suppl. SCR 460
relied on
Para 57
INHERENT JURISDICTION: Review Petition (Criminal)
No. 228 of 2018 in Criminal Appeal No. 416 of 2018
From the Judgment and Order dated 20.03.2018 in Criminal Appeal
No. 416 of 2018
 With
Review Petition (Crl.) No. 275 of 2018 in Criminal Appeal No.416
of 2018.
K. K. Venugopal, AG, Tushar Mehta, ASG, R. Balasubramanian,
Mohan Parashran, Vikas Singh, Gopal Sankaranarayanan, Ashok Kumar
Sharma, Sr. Advs., Ankur Talwar, Ms. Shraddha Deshmukh, Raj Bahadur
Yadav, Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, Varun
Sharma, Ms. Shashi Kiran, Satish Chandra, Arjun Sain, Ms. Pooja Dhar,
Ms. Gayatri Verma, Aishwarya Kane, Vishal Sinha, Parmanand Gaur,
Ms. Bandana Singh, Kshitij Mudgal, B. K. Gautam, Mrs. Anil Katiyar,
K.K.L. Gautam, A. K. Suman, P. S. Nerwal, Rahul Mohd., Bharat Ram,
Sanjeev Malhotra, K. Paari Vendhan, Nilesh Ukey, Sabarish
Subramanian, Prabu Ramasubramanian, Y. William Vinoth Kumar, Vishnu
A
B
C
D
E
F
G
H
1137
Unnikrishnan, Ms. Disha Wadekar, Paras Nath Singh, Siddharth, Fuzail
Ahmad Ayyubi, Rameshwar Prasad Goyal, Varinder Kumar Sharma,
Nachiketa Joshi, Prashant Bhushan, Shivendra Singh, Karuvaki Mohanty,
Dr. M.N. Verma, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar,
Sushil Karanjkar, K. N. Rai, Kumar Parimal, Smarhar Singh, Guntur
Prabhakar, Balraj Dewan, Avijit Bhattacharjee, Ms. Upma Shrivastava,
Ajoy Kumar Ghosh, Abhay Kant Mishra, P.V. Saravana Raja, G. Prakash,
Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Mohan
Kumar, Manoj Gorkela, Sandeep Kumar Singh, Ram Shrivastava,
Ms. Hemlata K., Sandeep Kumar Singh (for M/s. Gorkela Law Office),
Raj Kamal, Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad,
Kunal Yadav, Ms. Neena Shukla, Alok Shukla, Debasis Misra, D. Mahesh
Babu, Dr. A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Ms. Richa
Singh, Ms. Pratima Rani, Sadashiv, Shekhar Kumar, Arup Banerjee,
M. Y. Deshmukh, Ms. Manjeet Kirpal, Dr. K. S. Chauhan, Ajit Kumar
Ekka, Ravi Prakash, Chand Kiran, S. P. Singh, Mahfooz A. Nazki, Polanki
Gowtham, Advs. for the appearing parties.
Applicant-in-person.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The Union of India has filed the instant petition for review of
the judgment and order dated 20.3.2018 passed by this Court in Criminal
Appeal No.416 of 2018. This Court while dealing with the provisions of
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short 'the Act of 1989') has issued guidelines in paragraph
83 of the judgment, which are extracted hereunder:-
"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);
 UNION OF INDIA v. STATE OF MAHARASHTRA
A
B
C
D
E
F
G
H
1138
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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."
2. This Court, while passing the judgment under review, has
observed in paragraph 32 thus:
 "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 rights1. There are enumerable decisions of this Court
where this approach has been adopted and directions issued with
a view to enforce fundamental rights which may sometimes be
perceived as legislative in nature. Such directions can certainly
be issued and continued till an appropriate legislation is enacted2.
Role of this Court travels beyond merely dispute settling and
directions can certainly be issued which are not directly in conflict
with a valid statute3. Power to declare law carries with it, within
the limits of duty, to make law when none exists4 .
1 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13
2 Vishakha versus State of Rajasthan (1997) 6 SCC 241, 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
3 Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48
4 Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18
[Note: For convenience, the cases/citations in the extracts have been
renumbered.]
A
B
C
D
E
F
G
H
1139
3. Question has been raised by the Union of India that when the
Court does not accept the legislative and specific provisions of law passed
by the legislature and only the legislature has the power to amend those
provisions if the Court finds provisions are not acceptable to it, it has to
be struck them down being violative of fundamental rights or in case of
deficiency to point out to the legislature to correct the same.
4. The Union of India has submitted that judgment and order dated
20.3.2018 entails wide ramification and it deserves to be reviewed by
this Court. It is also submitted that this Court has failed to take note of
aspects which would have a significant bearing on the present case.
5. It is submitted that the Act of 1989 had been enacted to
remove the disparity of the Scheduled Castes and Scheduled Tribes who
remain vulnerable and denied their civil rights. The Statement of
Objects and Reasons of the Act of 1989, for which it had been enacted
is as under:
"Despite various measures to improve the socio-economic
conditions of the Scheduled Castes and the Scheduled Tribes, they
remain vulnerable. They are denied number of civil rights. They
are subjected to various offences, indignities, humiliations, and
harassment. They have, in several brutal incidents, been deprived
of their life and property. Serious crimes are committed against
them for various historical, social, and economic reasons.
2. .......... When they assert their rights and resist practices of
untouchability against them or demand statutory minimum wages
or refuse to do any bonded and forced labour, the vested interests
try to cow them down and terrorise them. When the Scheduled
Castes and the Scheduled Tribes try to preserve their
self-respect or honour of their women, they become irritants for
the dominant and the mighty. Occupation and cultivation of even
the Government allotted land by the Scheduled Castes and
Scheduled Tribes is resented and more often these people
become victims of attacks by the vested interests. Of late, there
has been an increase in the disturbing trend of the commission of
certain atrocities like making the Scheduled Caste persons ear
inedible substances, like human excreta and attacks on and mass
killings of helpless Scheduled Castes and the Scheduled Tribes
and rape of women belonging to the Scheduled Castes and the
 UNION OF INDIA v. STATE OF MAHARASHTRA
[ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
1140
SUPREME COURT REPORTS
[2019] 12 S.C.R.
Scheduled Tribes. Under the circumstances, the existing laws
like the Protection of Civil Rights Act, 1955 and the normal
provisions of the Indian Penal Code have been found to be
inadequate to check these crimes. A special legislation to check
and deter crimes against them committed by non-Scheduled Castes
and non-Scheduled Tribes has, therefore, become necessary."
The preamble to the Act of 1989 states as under:
"An Act to prevent the Commission of offences of atrocities against
the members of the Scheduled Castes and the Scheduled Tribes,
to provide for special courts for the trial of such offences and for
the relief and rehabilitation of the victims of such offences and
for matters connected therewith or incidental thereto."
Section 18 of the Act of 1989 has been enacted to take care of an
inherent deterrence and to instil a sense of protection amongst members
of Scheduled Castes and Scheduled Tribes. It is submitted that any
dilution of the same would shake the very objective of the mechanism to
prevent the offences of atrocities. The directions issued would cause a
miscarriage of justice even in deserving cases. With a view to object
apprehended misuse of the law, no such direction can be issued. In case
there is no prima facie case made out under the Act of 1989,
anticipatory bail can be granted. The same was granted in the case in
question also.
6. It is submitted that because of the continuing atrocities against
the members of the Scheduled Castes and Scheduled Tribes, a
commission of offences against them indicated an increase, even the
existing provisions were not considered sufficient to achieve the
objective to deliver equal justice to the members of the Scheduled Castes
and the Scheduled Tribes. Hence, the Act of 1989 had been amended in
April 2015, enforced with effect from 26.01.2016.
7. It is further submitted that the amendments broadly related to
addition of several new offences/atrocities like tonsuring of
head/moustache, or similar acts which are derogatory to the dignity of
the members of Scheduled Castes and Scheduled Tribes, garlanding with
footwear, denying access to irrigation facilities or forest rights, dispose
or carry human or animal carcasses, or to dig graves, using or permitting
manual scavenging, dedicating a Scheduled Caste or a Scheduled Tribe
woman as devadasi, abusing in caste name, perpetrating witchcraft
A
B
C
D
E
F
G
H
1141
atrocities, imposing social or economic boycott, preventing Scheduled
Caste and Scheduled Tribe candidates from filing nomination to contest
elections, insulting a Scheduled Castes/ Scheduled Tribes woman by
removing her garments, forcing a member of Scheduled Caste/
Scheduled Tribe to leave house, village or residence, defiling objects
sacred to members of Scheduled Castes and Scheduled Tribes, touching
or using acts or gestures of a sexual nature against members of
Scheduled Castes and Scheduled Tribes and addition of certain IPC
offences like hurt, grievous hurt, intimidation, kidnapping etc., attracting
less than ten years of imprisonment committed against members of
Scheduled Castes and Scheduled Tribes as offences punishable under
the Act of 1989, beside rephrasing and expansion of some of the earlier
offences.
8. It is submitted that the provisions have also been made for the
establishment of exclusive Special Courts and specification of Exclusive
Special Public Prosecutors to exclusively try the offences under the Act
of 1989 to enable expeditious disposal of cases, Special Courts and
Exclusive Special Courts to take direct cognisance of offences and
completion of trial as far as possible within two months from the date of
filing of the charge sheet and addition of chapter on the "Rights of
Victims and Witnesses".
9. It is also submitted on behalf of Union of India that as per the
amendment Rules, 2016 the provisions have also been made with regard
to relief amount of 47 offences of atrocities to victims, rationalisation of
the phasing of payment of relief amount, enhancement of relief amount
between Rs.85,000/- to Rs.8,25,000/- depending upon the nature of the
offence, payment of admissible relief within seven days, on completion
of investigation and filing of charge sheet within sixty days to enable
timely commencement of prosecution and periodic review of the scheme
for the rights and entitlements of victims and witnesses in accessing
justice by the State, District and Sub-Division Level Vigilance and
Monitoring Committees in their respective meetings.
10. It is submitted that this Court has failed to appreciate that low
rate of conviction and high rate of acquittal under the Act of 1989,
related cases is attributable to several factors like delay in lodging the
FIR, witnesses, and complainants becoming hostile, absence of proper
scrutiny of the cases by the prosecution before filing the charge sheet in
the Court, lack of proper presentation of the case by the prosecution and
 UNION OF INDIA v. STATE OF MAHARASHTRA
[ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
1142
SUPREME COURT REPORTS
[2019] 12 S.C.R.
appreciation of evidence by the Court. There is long pendency of the
trial, which makes the witness to lose their interest and lack of
corroborative evidence. There are procedural delays in investigation
and filing of the charge sheet.
11. It is submitted that Rule 7(2) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that
investigating officer to complete the investigation within 30 days.
Without immediate registration of FIR and arrest and by providing
anticipatory bail to the accused, Rule 7 is bound to be frustrated.
12. It is further submitted that the directions issued are legislative.
It would devoid the object of the Act to remove the caste-based
sub-judication and discrimination. Such directions are impermissible to
be issued under Article 142 of the Constitution of India.
13. It is also submitted that offences of atrocities against the
members of Scheduled Castes and Scheduled Tribes have been
disturbingly continuing and as per the data of National Crime Records
Bureau (NCRB), Ministry of Home Affairs, 47,338 number of cases
were registered in the country under the Act of 1989 in conjunction with
the Indian Penal Code during the year 2016. Further, only 24.5 % of the
said cases ended in conviction and 89.3% were pending in the courts at
the end of the year 2016. In the circumstances, it is not proper to dilute
the provisions and make it easier for the accused to get away from
arrest by directing a preliminary enquiry, approval for an arrest.
14. Per contra, it is submitted that directions are proper because
of misuse of the legislative provisions of the Atrocities Act, and no case
for interference is made out in the review jurisdiction.
15. Before dealing with submission, we refer to the decisions. In
National Campaign on Dalit Human Rights & Ors v. Union of India
& Ors. (2017) 2 SCC 432, this Court has considered the report of
Justice K. Punnaiah Commission and the 6th Report of the National
Commission for Scheduled Castes/ Scheduled Tribes. The NHRC
report also highlighted the non-registration of cases and various other
machinations resorted to by the police to discourage Dalits from
registering cases under the Act of 1989. In the said case this Court had
directed the strict implementation of the provisions of the
Act of 1989. The relevant portion of the decision mentioned above is
extracted hereunder:
A
B
C
D
E
F
G
H
1143
"18.