ISSUE

whether there is an absolute bar to the grant of anticipatory bail

whether in cases where there is no prima facie case under the Act, bar under Section 18
operates can be considered.

whether directions can be issued by this Court to protect fundamental right under Article 21
against uncalled for false implication and arrests

FACTS

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.

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.

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 nonscheduled 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.

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.

ARGUMENTS OF PETITIONER

10. Learned amicus submitted that in facts of the present case, no offence was made out
under Sections 3(1)(ix), 3(2)(vi) and 3(2) (vii) of the Atrocities Act and Sections 182, 192,
193, 203 and 219 of the Indian Penal Code and, thus, the High Court ought to have quashed
the proceedings.

11. It was submitted by learned amicus that FIR was lodged after five years of the order
passed by the appellant. The order was passed on 20th January, 2011 while the FIR was
lodged on 28th March, 2016 which further strengthened the case for quashing in addition to
the facts and legal contentions noted in the previous para. Moreover, in absence of any
allegation of mala fides, even if order passed by the appellant was erroneous proceedings
against him are not called for.

12. Learned amicus submitted that under the scheme of the Atrocities Act, several offences
may solely depend upon the version of the complainant which may not be found to be true.
There may not be any other tangible material. One sided version, before trial, cannot displace
the presumption of innocence. Such version may at times be self serving and for extraneous
reason. Jeopardising liberty of a person on an untried unilateral version, without any
verification or tangible material, is against the fundamental rights guaranteed under the
Constitution. Before liberty of a person is taken away, there has to be fair, reasonable and just
procedure. Referring to Section 41(1)(b) Cr.P.C. it was submitted that arrest could be effected
only if there was ‘credible’ information and only if the police officer had ‘reason to believe’
that the offence had been committed and that such arrest was necessary. Thus, the power of
arrest should be exercised only after complying with the safeguards intended under Sections
41 and 41A Cr.P.C. It was submitted that the expression ‘reason to believe’ in Section 41
Cr.P.C. had to be read in the light of Section 26 IPC and judgments interpreting the said
expression. The said expression was not at par with suspicion. Reference has been made in
this regard to Joti Prasad versus State of Haryana, Badan Singh @ Baddo versus State of U.P.
& Ors., Adri Dharan Das versus State of West Bengal, Tata Chemicals Ltd. versus
Commissioner of Customs and Ganga Saran & Sons Pvt. Ltd. versus Income Tax Officer &
Ors. In the present context, to balance the right of liberty of the accused guaranteed under
Article 21, which could be taken away only by just fair and reasonable procedure and to
check abuse of power by police and injustice to a citizen, exercise of right of arrest was
required to be suitably regulated by way of guidelines by this Court under Article 32 read
with Article 141 of the Constitution. Some filters were required to be incorporated to meet
the mandate of Articles 14 and 21 to strengthen the rule of law.

 13. Learned amicus submitted that this Court has generally acknowledged the misuse of
power of arrest and directed that arrest should not be mechanical. It has been laid down that
the exercise of power of arrest requires reasonable belief about a person’s complicity and also
about need to effect arrest. Reliance has been placed on Joginder Kumar versus State of U.P.,
M.C. Abraham versus State of Maharashtra, D. Venkatasubramaniam versus M. K. Mohan
Krishnamachari 8 , Arnesh Kumar versus State of Bihar and Rini Johar & Ors. versus State of
M.P. & Ors.

14. It was submitted that in the context of the Atrocities Act, in the absence of tangible
material to support a version, to prevent exercise of arbitrary power of arrest, a preliminary
enquiry may be made mandatory. Reasons should be required to be recorded that information
was credible and arrest was necessary. In the case of public servant, approval of disciplinary
authority should be obtained and in other cases approval of Superintendent of Police should
be necessary. While granting such permission, based on a preliminary enquiry, the authority
granting permission should be satisfied about credibility of the information and also about
need for arrest. If an arrest is effected, while granting remand, the Magistrate must pass a
speaking order as to correctness or otherwise of the reasons for which arrest is effected.
These requirements will enforce right of concerned citizens under Articles 14 and 21 without
in any manner affecting genuine objects of the Act.

 15. Learned amicus further submitted that Section 18 of the Atrocities Act, which excludes
Section 438 Cr.P.C., violates constitutional mandate under Articles 14 and 21 and is ultra
vires the Constitution. The said provision was upheld in State of M.P. versus Ram Krishna
Balothia but the said judgment was in ignorance of the Constitution Bench judgment in
Gurbaksh Singh Sibbia etc. versus State of Punjab. If a Court is not debarred from granting
anticipatory bail even in most heinous offences including murder, rape, dacoity, robbery,
NDPS, sedition etc., which are punishable with longer periods depending upon parameters
for grant of anticipatory bail, taking away such power in respect of offences under the Act is
discriminatory and violative of Article 14. Exclusion of court’s jurisdiction, even where the
court is satisfied that arrest of a person was not called for, has no nexus with the object of the
Atrocities Act.

16. Reliance has also placed on recent judgment of this Court in Nikesh Tarachand Shah
versus Union of India and Anr. declaring Section 45 of the Prevention of Money Laundering
Act, 2002 unconstitutional. This Court held that fetters on grant of bail under the said
provision when such fetters were not applicable to other offences punishable in like manners
was discriminatory and against the principle of fair just and reasonable procedure.

17. Ms. Manisha T. Karia, counsel appearing for intervenor on behalf of Sapna Korde @
Ketaki Ghodinde, who also claims to be victim of a false complaint, submitted that
respondent No. 2 lodged a false FIR No. 3210 of 2017 dated 2nd November, 2017 against her
at Khadki police station alleging that she, in collusion with the appellant herein, pressurized
respondent no. 2 to withdraw the FIR No.164 of 2016 registered with Karad Police Station
and she falsely implicated respondent no. 2 in a sexual harassment case. She is working as an
Assistant Professor in the Department of Instrumentation and Control in College of
Engineering, Pune since last eight years where respondent No. 2 was working as a
storekeeper. She had made a complaint against him for her sexual harassment and as a
reaction, the FIR was lodged by respondent No. 2 by way of the Atrocities Act. Her
anticipatory bail application was rejected by the session court but the High Court, vide order
dated 23rd November, 2017, granted interim protection against arrest. Thereafter, respondent
No. 2 initiated proceedings under Section 107 Cr.P.C. and the intervenor received notice
dated 2nd December, 2017 from the Magistrate. It was submitted that there was no safeguard
against false implication, undue harassment and uncalled for arrest and thus, this Court must
incorporate safeguards against unreasonable and arbitrary power of arrest in such cases
without following just fair and reasonable procedure which may be laid down by this Court.
Such requirement, it was submitted, was implicit requirement of law but was not being
followed.
18. Laying down safeguards to enforce constitutional guarantee under Article 21 was
necessary in view of the Sixth Report dated 19th December, 2014 of the Standing Committee
on Social Justice and Empowerment (2014-15) on the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Bill, 2014 rejecting the stand of the Ministry to
the effect that there was no need to provide for action against false or malafide implication
under the Atrocities Act. It was observed therein:- “3.9 The Committee are not inclined to
accept the contention of the Ministry that those who are found to be misusing the provisions
of the Act can be tried as per normal law of the land under the relevant sections of the IPC.
The Committee are of the firm view that the PoA Act, being a special law, should be
wholesome to the extent that it must contain an inbuilt provision for securing justice for those
too who are falsely implicated with mala fide under it. More so, when the law makers have
shown such perspicacity in addressing such issues/misgivings when they inserted

19. Thus, unless this Court laid down appropriate guidelines, there will be no protection
available against arbitrary arrests or false implications in violation of Article 21 of the
Constitution. The intervenor submitted that preliminary enquiry must be held before arrest
with regard to the following factors:

“a. Date and time of the incident and provocation. b. Preexisting dispute between the parties
or rivalry. c. Gravity of the issue involved. d. Nature of allegations by both the parties. e.
Necessary documents and evidence by the victim and accused to substantiate their case to be
placed before committee. f. The proceedings may be recorded to avoid allegations of bias and
non-transparency.”

22. It was, thus, submitted that above judgments are merely illustrations to show that the
abuse of law was rampant. If mere accusations are treated as sufficient, it may unfairly
damage the personal and professional reputation of a citizen. There is a need to balance the
societal interest and peace on the one hand and the protection of rights of victims of such
false allegations on the other. If allegations are against an employee, a committee should be
formed in every department as follows:- “i. The employer or Head of every institution may be
directed to constitute an internal committee to look into the matters and specific grievances
related to atrocities committed on the members of SC/ST ii. That before proceeding to lodge
any FIR or criminal complaint, a written complaint should made to the internal committee of
the institution along with supportive evidence. iii. Such committee may be given the power to
conduct a preliminary inquiry into the matter by hearing both the parties and other evidence,
so as to ascertain the existence of a prima facie case under the POA Act.”

23. It has been further suggested that Magistrate must verify the averments in a
Complaint/FIR to ascertain whether a prima facie case is made out and whether arrest was
necessary and only then arrest should be made or continued.

24. It is further submitted by the counsel for the intervenor that the Atrocities Act is also
prone to misuse on account of monetary incentive being available merely for lodging a case
under Rule 12(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules,
1995. Such incentive may encourage not only genuine victims but, there being no safeguard
even against a false case being registered only to get the monetary incentive, such false cases
may be filed without any remedy to the affected person.

ARGUMENTS OF RESPONDENT

Shri C.U. Singh, learned senior counsel appearing for the said intervenor, submitted that
where law is clear no guideline should be issued by the Court. Reliance has been placed on
State of Jharkhand and Anr. Versus Govind Singh and Rohitash Kumar and Ors versus Om
Prakash Sharma and Ors. It was submitted that this Court could not lay down guidelines in
the nature of legislation.

28. Shri C.U. Singh submitted that the Section 18 of the Atrocities Act has already been
upheld in Balothia (supra) and Manju Devi versus Onkarjit Singh Ahluwalia. He also relied
upon Statement of Objects and Reasons of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Bill, 2013 dated 14th July, 2014. Therein it is stated
that there are procedural hurdles such as non-registration of cases, procedural delays in
investigation, arrests and filing of charge-sheets and delays in trial and low conviction rate on
account of which in spite of deterrent provisions, atrocities against SC/ST continues at
disturbing level which necessitated amendment in the Act.

29. Further intervention has been sought by one Yogendra Mohan Harsh. Learned counsel for
the said intervenor submitted that atrocities against SCs and STs are increasing and if
submissions of amicus are to be accepted, the Act will be rendered ineffective and teethless.
30. Learned ASG submitted that in view of decisions in Balothia (supra) and Manju Devi
(supra) there is no occasion to go into the issue of validity of provisions of the Atrocities Act.
He also submitted that decisions of this Court in Vilas Pandurang Pawar and Anr. versus
State of Maharashtra and Ors. and Shakuntla Devi versus Baljinder Singh permit grant of
anticipatory bail if no prima facie case is made out. Thus, in genuine cases anticipatory bail
can be granted. He also submitted that the Government of India had issued advisories on 3rd
February, 2005, 1st April, 2010 and 23rd May, 2016 and also further amended the Atrocities
Act vide Amendment Act No. 1 of 2016 which provides for creation of Special Courts as
well as Exclusive Special Courts. Referring to the data submitted by the National Crime
Records Bureau (NCRB) it was further submitted that out of the total number of complaints
investigated by the police in the year 2015, both for the persons belonging to the SC category
and also belonging to the ST category, in almost 15-16% cases, the competent police
authorities had filed closure reports. Out of the cases disposed of by the courts in 2015, more
than 75% cases have resulted in acquittal/withdrawal or compounding of the cases. It was
submitted that certain complaints were received alleging misuse of the Atrocities Act and a
question was also raised in Parliament as to what punishment should be given against false
cases. The reply given was that awarding punishment to members of SCs and STs for false
implication would be against the spirit of the Act. A press statement dated 19th March, 2015
was issued by the Central Government to the effect that in case of false cases, relevant
Sections of IPC can be invoked. It was submitted that no guideline should be laid down by
this Court which may be legislative in nature.

REASONING

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

31. We may, at the outset, observe that jurisdiction of this Court to issue appropriate orders or
directions for enforcement of fundamental rights is a basic feature of the Constitution. This
Court, as the ultimate interpreter of the Constitution, has to uphold the constitutional rights
and values. Articles 14, 19 and 21 represent the foundational values which form the basis of
the rule of law. Contents of the said rights have to be interpreted in a manner which enables
the citizens to 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, this Court has jurisdiction to
enforce the fundamental rights of life and liberty against any executive or legislative action.
The expression ‘procedure established by law’ under Article 21 implies just, fair and
reasonable procedure.

32. This Court is not expected to adopt a passive or negative role and remain bystander or a
spectator if violation of rights is observed. It is necessary to fashion new tools and strategies
so as to check injustice and violation of fundamental rights. No procedural technicality can
stand in the way of enforcement of fundamental rights. 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 enacted. Role
of this 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.

41. It is, thus, too late in the day to accept an objection that this Court may not issue any
direction which may be perceived to be of legislative nature even if it is necessary to enforce
fundamental rights under Articles 14 and 21 of the Constitution.

47. We are thus of the view that interpretation of the Atrocities Act should promote
constitutional values of fraternity and integration of the society. This may require check on
false implications of innocent citizens on caste lines.

51. Though we find merit in the submission of learned amicus that judgment of this Court in
Ram Krishna Balothia (supra) may need to be revisited in view of judgments of this Court,
particularly Maneka Gandhi (supra), we consider it unnecessary to refer the matter to the
larger Bench as the judgment can be clarified in the light of law laid down by this Court.
Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of
crime. It cannot be read as being applicable to those who are falsely implicated for extraneous
reasons and have not committed the offence on prima facie independent scrutiny. Access to
justice being a fundamental right, grain has to be separated from the chaff, by an independent
mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to
protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to
genuine cases and not to false ones. This will help in achieving the object of the law.

Theoretically it is possible to say that an application under Section 438 of the Code may be
rejected by the Court because of express restrictions in Section 18 of the Act but the very
same court can grant bail under the provisions of Section 437 of the Code, immediately after
the arrest. There seems to be no logical rationale behind this situation of putting a fetter on
grant of anticipatory bail whereas 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 Act is limited to genuine cases and inapplicable where no prima facie case
is made out.

We are unable to read the said judgment as laying down that exclusion is applicable to such
situations. If a person is able to show that, prima facie, he has not committed any atrocity
against a member of SC and ST and that the allegation was mala fide and prima facie false
and that prima facie no case was made out, we do not see any justification for applying
Section 18 in such cases. Consideration in the mind of this Court in Balothia (supra) is that
the perpetrators of atrocities should not be granted anticipatory bail so that they may not
terrorise the victims. Consistent with this view, it can certainly be said that innocent persons
against whom there was no prima facie case or patently false case cannot be subjected to the
same treatment as the persons who are prima facie perpetrators of the crime.

54. In view of decisions in Vilas Pandurang Pawar (supra) and Shakuntla Devi (supra),
learned ASG has rightly stated that there is no absolute bar to grant anticipatory bail if no
prima facie case is made out inspite of validity of Section 18 of the Atrocities Act being
upheld.

56. It is well settled that a statute is to be read in the context of the background and its object.
Instead of literal interpretation, the court may, in the present context, prefer purposive
interpretation to achieve the object of law. Doctrine of proportionality is well known for
advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of
citizen must be read consistent with the concept of fairness and reasonableness.

58. 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.

59. There can be no dispute with the proposition that mere unilateral allegation by any
individual belonging to any caste, when such allegation is clearly motivated and false, cannot
be treated as enough to deprive a person of his liberty without an independent scrutiny. Thus,
exclusion of provision for anticipatory bail cannot possibly, by any reasonable interpretation,
be treated as applicable when no case is made out or allegations are patently false or
motivated. If this interpretation is not taken, it may be difficult for public servants to
discharge their bona fide functions and, in given cases, they can be black mailed with the
threat of a false case being registered under the Atrocities Act, without any protection of law.
This cannot be the scenario in a civilized society. Similarly, even a non public servant can be
black mailed to surrender his civil rights. This is not the intention of law. Such law cannot
stand judicial scrutiny. It will fall foul of guaranteed fundamental 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.

60. Applying the above well known principle, we hold that the exclusion of Section 438
Cr.P.C. applies when a prima facie case of commission of offence under the Atrocities Act is
made. On the other hand, if it can be shown that the allegations are prima facie motivated and
false, such exclusion will not apply.

61. The Gujarat High Court in Pankaj D Suthar (supra) considered the question whether
Section 18 of the Atrocities Act excludes grant of anticipatory bail when on prima facie
judicial scrutiny, allegations are found to be not free from doubt.

62. The above view was reiterated in Dr. N.T. Desai (supra), after considering the judgment
of this Court in Balothia (supra). It was observed that even taking Section 18 of the Atrocities
Act to be valid, if the Court, prima-facie, found the story of complainant to be doubtful, the
accused could not be allowed to be arrested. Doing so would be unjudicial.

63. The above judgments correctly lays down the scope of exclusion as well as permissibility
of anticipatory bail in cases under the Atrocities Act and are consistent with the view we take.
Section 18 of the Atrocities Act has, thus, to be read and interpreted in this manner. At this
stage, we may note that we have seen a contra view of the Division Bench of the said High
Court in Pravinchandra N Solanki and Ors. versus State of Gujarat. We are unable to accept
the said view for the reasons already given and overrule the same.
65. 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 Noor Aga versus State of Punjab, it was observed:

“33. Presumption of innocence is a human right as envisaged under Article 14(2) of the
International Covenant on Civil and Political Rights. It, however, cannot per se be equated
with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India.
It, having regard to the extent thereof, would not militate against other statutory provisions
(which, of course, must be read in the light of the constitutional guarantees as adumbrated in
Articles 20 and 21 of the Constitution of India).

xxxx xxxx xxxx

 35. A right to be presumed innocent, subject to the establishment of certain foundational

Xxxx xxxx xxxx

43. The issue of reverse burden vis-à-vis the human rights regime must also be noticed. The
approach of the common law is that it is the duty of the prosecution to prove a person guilty.
Indisputably, this common law principle was subject to parliamentary legislation to the
contrary. The concern now shown worldwide is that Parliaments had frequently been making
inroads on the basic presumption of innocence. Unfortunately, unlike other countries no
systematic study has been made in India as to how many offences are triable in the court
where the legal burden is on the accused. In the United Kingdom it is stated that about 40%
of the offences triable in the Crown Court appear to violate the presumption. (See “The
Presumption of Innocence in English Criminal Law”, 1996, CRIM. L. REV. 306, at p. 309.)

44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated:
“Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law….” Similar provisions have been made in Article 6.2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and
Article 14.2 of the International Covenant on Civil and Political Rights (1966).

 Xxx xxxx xxx xxx

47. We may notice that Sachs, J. in State v. Coetzee [1997(2) LRC 593] explained the
significance of the presumption of innocence in the following terms: “There is a paradox at
the heart of all criminal procedure in that the more serious the crime and the greater the
public interest in securing convictions of the guilty, the more important do constitutional
protections of the accused become. The starting point of any balancing enquiry where
constitutional rights are concerned must be that the public interest in ensuring that innocent
people are not convicted and subjected to ignominy and heavy sentences massively
outweighs the public interest in ensuring that a particular criminal is brought to book. …
Hence the presumption of innocence, which serves not only to protect a particular individual
on trial, but to maintain public confidence in the enduring integrity and security of the legal
system. Reference to the prevalence and severity of a certain crime therefore does not add
anything new or special to the balancing exercise. The perniciousness of the offence is one of
the givens, against which the presumption of innocence is pitted from the beginning, not a
new element to be put into the scales as part of a justificatory balancing exercise. If this were
not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-
jacking, housebreaking, drug-smuggling, corruption … the list is unfortunately almost
endless, and nothing would be left of the presumption of innocence, save, perhaps, for its
relic status as a doughty defender of rights in the most trivial of cases.”

In view of the above, an accused is certainly entitled to show to the Court, if he apprehends
arrest, that case of the 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.

66. We have already noted 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
disputes60. 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’
67. Innocent citizens are termed as accused, which is not intended by the legislature. The
legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak
personal vengeance. The Act is also not intended to deter public servants from 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.

68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory
bail will not apply when no prima facie case is made out or the case is patently false or mala
fide. This may have to be determined by the Court concerned in facts and circumstances of
each case in exercise of its judicial discretion. In doing so, we are reiterating a well
established principle of law that protection of innocent against abuse of law is part of inherent
jurisdiction of the Court being part of access to justice and protection of liberty against any
oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of
Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting
custodial interrogation and pre-trial arrest and detention.

71. Law laid down by this Court in Joginder Kumar (supra), Arnesh Kumar (supra), Rini
Johar (supra), Siddharam Satlingappa (supra) to check uncalled for arrest cannot be ignored
and clearly applies to arrests under the Atrocities Act. Protection of innocent is as important
as punishing the guilty.

72. In Dadu alias Tulsidas versus State of Maharashtra while considering the validity of
exclusion of bail by an appellate court in NDPS cases, this Court noted the submission that
the legislature could not take away judicial powers by statutory prohibition against
suspending the sentence during the pendency of the appeal. This is an essential judicial
function. The relevant observations are:

“16. Learned counsel appearing for the parties were more concerned with the adverse effect
of the section on the powers of the judiciary. Impliedly conceding that the section was valid
so far as it pertained to the appropriate Government, it was argued that the legislature is not
competent to take away the judicial powers of the court by statutory prohibition as is shown
to have been done vide the impugned section. Awarding sentence, upon conviction, is
concededly a judicial function to be discharged by the courts of law established in the
country. It is always a matter of judicial discretion, however, subject to any mandatory
minimum sentence prescribed by the law. The award of sentence by a criminal court
wherever made subject to the right of appeal cannot be interfered or intermeddled with in a
way which amounts to not only interference but actually taking away the power of judicial
review. Awarding the sentence and consideration of its legality or adequacy in appeal is
essentially a judicial function embracing within its ambit the power to suspend the sentence
under the peculiar circumstances of each case, pending the disposal of the appeal.”

73. On the above reasoning, it is difficult to hold that the legislature wanted exclusion of
judicial function of going into correctness or otherwise of the allegation in a criminal case
before liberty of a person is taken away. The legislature could not have intended that any
unilateral version should be treated as conclusive and the person making such allegation
should be the sole judge of its correctness to the exclusion of judicial function of courts of
assessing the truth or otherwise of the rival contentions before personal liberty of a person is
adversely affected.

 74. 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. We approve the view of the Gujarat High Court in Pankaj D Suthar (supra) and Dr.
N.T. Desai (supra). We clarify the Judgments in Balothia (supra) and Manju Devi (supra) to
this effect.

79. We are of the view that cases under the Atrocities Act also fall in exceptional category
where preliminary inquiry must be held. Such inquiry must be time-bound and should not
exceed seven days in view of directions in Lalita Kumari (supra).

80. Even if preliminary inquiry is held and case is registered, arrest is not a must as we have
already noted.

 82. As far as the present case is concerned, we find merit in the submissions of learned
amicus that the proceedings against the appellant are liable to be quashed.

DECISION
81. Accordingly, we direct that in absence of any other independent offence calling for arrest,
in respect of offences under the Atrocities Act, no arrest may be effected, if an accused
person is a public servant, without written permission of the appointing authority and if such
a person is not a public servant, without written permission of the Senior Superintendent of
Police of the District. Such permissions must be granted for recorded reasons which must be
served on the person to be arrested and to the concerned court. As and when a person arrested
is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded
and further detention should be allowed only if the 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

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);

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.

DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA