Dr Subhash Kashinath Mahajan v State Of Maharashtra- Case brief
- shrey singh
- May 13, 2020
- 8 min read
Dr Subhash Kashinath Mahajan v State Of Maharashtra
(2018) 6 Supreme Court Cases 454 : (2018) 3 Supreme Court Cases (Cri) 124 : 2018 SCC OnLine SC 243
Criminal Appeal No. 416 of 2018, decided on March 20, 2018
Bench: Adarsh Kumar Goel and Uday U. Lalit, JJ.
Facts
The appellant herein is the original accused in a case for the offences punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as also Sections 182, 192, 193, 203 and 219 read with Section 34 IPC. He was serving as Director of Technical Education in the State of Maharashtra at the relevant time.
The second respondent complainant is an employee of the Department. He was earlier employed as a Storekeeper in a Government College and was later posted at Government Distance Education Institute, Pune. Dr S and Dr K, who were his seniors but non-scheduled caste, made adverse entry in his annual confidential report to the effect that his integrity and character was not good. He lodged an FIR against the said two officers under the Atrocities Act on 4-1-2006 on that ground. The investigating officer concerned applied for sanction under Section 197 CrPC against them to the Director of Technical Education on 21-12-2010. The sanction was refused by the appellant on 20-1-2011. Because of this, ‘C’ Summary Report was filed against S and K 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 28-3-2016 by illegally dealing with the matter of sanction. The appellant was granted anticipatory bail. But the High Court refused to quash the criminal complaint under Section 482 CrPC. Hence, the present appeal.
Question of law
Whether the criminal complaint against the appellant can be quashed?
(Supreme Court also clarify the law and rights of the accused in such cases)
Held
The Supreme Court quashing the criminal complaint held that:
Regarding function of court
The Supreme 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. The Supreme Court has jurisdiction to enforce the fundamental rights of life and liberty against any executive or legislative action. The expression “procedure established by law” under Article 21 implies just, fair and reasonable procedure.
The Court is not expected to adopt a passive or negative role and remain a bystander or a spectator if violation of rights is observed. Role of the Supreme Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute. Power to declare law carries with it, within the limits of duty, to make law when none exists.
Regarding arbitrary arrest
The horizon of human rights is expanding. There are complaints of violation of human rights because of indiscriminate arrests. The law of arrest is of balancing individual rights, liberties and privileges, duties, obligations and responsibilities. On the one side is the social need to check a crime, on the other there is social need for protection of liberty, oppression and abuse by the police and the other law-enforcing agencies. No arrest can be made merely because it is lawful to do so. The exercise of power must be for a valid purpose. Except in heinous offences arrest must be avoided. This requirement was read into Article 21.
The fundamental rights are all parts of an integrated scheme and their waters must mix to constitute grand flow of impartial justice. Legislation should not invade the rights and should not smack of arbitrariness. The restriction of law should be rational and connected to the purpose for which it is necessary. It should not be arbitrary or excessive.
It is, thus, too late in the day to accept an objection that the 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.
Section 18 of the SC/ST Act
In Ram Kishna Balothia, (1995) 3 SCC 221, Section 18 of the Atrocities Act was held not to be violative of Articles 14 and 21 of the Constitution. Referring to the Statement of Objects and Reasons, it was observed that members of SC and ST are vulnerable and are denied number of civil rights and they are subjected to humiliation and harassment. Thus, the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation.
Though there is no merit in the submission of the Amicus that judgment in Balothia case may need to be revisited in view of judgments, particularly Maneka Gandhi, (1978) 1 SCC 248, it is unnecessary to refer the matter to the larger Bench as the judgment can be clarified in the light of law laid down by the 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.
Regarding Anticipatory bail
Inspite of the statutory bar against grant of anticipatory bail, a constitutional court is not debarred from exercising its jurisdiction to grant relief. Interim bail can be granted even in such cases without the accused being actually arrested.
A statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of citizen must be read consistent with the concept of fairness and reasonableness.
In the present context, wisdom of legislature in creating an offence cannot be questioned but individual justice is a judicial function depending on facts. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently mala fide 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.
If this interpretation is not taken, it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be blackmailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the scenario in a civilised society. Similarly,
even a non-public servant can be blackmailed to surrender his civil rights. This is not the intention of law. Such law cannot stand judicial scrutiny. It will fall foul of guaranteed fundamental rights of fair and reasonable procedure being followed if a person is deprived of life and liberty. Thus, literal interpretation cannot be preferred in the present situation.
Applying the above well-known principle, it is held that the exclusion of Section 438 CrPC 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.
Cases were preliminary inquiry is necesary
The normal rule is to register FIR if any information discloses commission of a cognizable offence. There are, however, exceptions to this rule. There may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
Under the SC/ST Act which 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, (2014) 2 SCC 1. Even if preliminary inquiry is held and case is registered, arrest is not a must.
Accordingly, it is directed that in absence of any other independent offence calling for arrest, in respect of offences under the SC/ST 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 court concerned. 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.
Direction by Supreme Court
Thus, it is directed 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.
(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 SSP 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.
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