Holding

Section 18's exclusion of anticipatory bail does not apply where no prima facie case is established or the complaint is prima facie false or mala fide, allowing anticipatory bail and the quashing of the proceedings.

Summary

The appellant, Dr. Subhash Kashinath Mahajan, a senior government official, was charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for refusing sanction to prosecute two senior officers who had made adverse entries in his service record. He sought anticipatory bail and the quashing of the proceedings, arguing that the complaint was false and mala fide. The Supreme Court held that Section 18 of the Act, which bars anticipatory bail, is not an absolute bar and does not apply where no prima facie case is made out or the complaint is patently false. The Court emphasized the need for procedural safeguards, including prior sanction for arrest of public servants and a preliminary inquiry before filing an FIR. Consequently, the proceedings were declared an abuse of process and quashed, and the appeal was allowed.

Issues considered

The scope and applicability of Section 18 of the SC/ST (Prevention of Atrocities) Act with respect to anticipatory bail.
Whether anticipatory bail can be granted when the complaint is prima facie false or no case is made out.
Whether arrest of a public servant under the Act requires prior sanction of the appointing authority or SSP.
The necessity of a preliminary inquiry before registration of FIR and arrest in cases under the Act.
Whether the proceedings against the appellant constitute an abuse of process of the court.

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 41, s. 41A, s. 438, s. 482
Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 21
Indian Penal Code, 1860s. 182, s. 192, s. 193, s. 203, s. 219, s. 34
Maharashtra Control of Organised Crime Act, 1999s. 21(3), s. 21(4)
Narcotic Drugs and Psychotropic Substances Act, 1985s. 37
Protection of Civil Rights Act, 1955
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 18, s. 3(1)(ix), s. 3(2)(vi), s. 3(2)(vii)
Terrorist and Disruptive Activities (Prevention) Act, 1985s. 17(4), s. 17(5)
Unlawful Activities (Prevention) Act, 1967s. 43D(4), s. 43D(5)

Subjects

anticipatory bailSC/ST Actfalse implicationabuse of processfundamental rightsarrest safeguardspreliminary inquirypresumption of innocenceproportionalityconstitutional law

Judgment

[2018] 4 S.C.R. 877 877

DR. SUBHASH KASHINATH MAHAJAN A
v.
THE STATE OF MAHARASHTRA AND ANR.
(Criminal Appeal No. 416 of 2018)
MARCH 20, 2018 B
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
The Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 – s.18 – Exclusion of anticipatory bail, in
cases of false implications – Procedural safeguards – Respondent
C
no.2-complainant, a govt. employee belonging to Scheduled Caste,
lodged FIR in 2006 against his two senior officers (non-Scheduled
Caste) when they made adverse entry in his Annual Confidential
Report – Sanction to proceed against the said two senior officers,
refused by appellant in 2011 – Present FIR lodged by respondent
no.2 against the appellant in 2016 – Appellant sought quashing of D
proceedings, which was rejected by High Court – Held: There is no
absolute bar against grant of anticipatory bail in cases under the
Atrocities Act if no prima facie case is made out or where on judicial
scrutiny the complaint is found to be prima facie mala fide – Exclusion
of anticipatory bail is justified only to protect victims of perpetrators
E
of crime in genuine cases– It cannot be made applicable to those
who are falsely implicated for extraneous reasons – To avoid false
implication of an innocent, a preliminary enquiry may be conducted
by the DSP concerned to find out whether the allegations make out
a case under the Atrocities Act and that the allegations are not
frivolous or motivated – Arrest of a public servant can only be after F
approval of the appointing authority and of a non-public servant
after approval by the S.S.P. which may be granted in appropriate
cases if considered necessary for reasons recorded – Such reasons
must be scrutinized by Magistrate for permitting further detention
– In the instant case, the proceedings against appellant are clear
G
abuse of process of court and are quashed – Code of Criminal
Procedure, 1973 – s.438 and ss.482, 41, 41A, 197 – Penal Code,
1860 – ss.182, 192, 193, 203 and s.219 r/w s.34 – Constitution of
India – Arts.14, 15, 16 and 21 – The Scheduled Castes and The
Scheduled Tribes (Prevention of Atrocities) Rules, 1995 – r.12(4) –
Protection of Civil Rights Act, 1955 – Terrorist and Disruptive H
877
878 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Activities (Prevention) Act, 1985 – s.17(4), (5) – Unlawful Activities
(Prevention) Act, 1967 – ss.43D(4), (5) – Maharashtra Control of
Organised Crime Act, 1999 – ss.21(3), (4) – Narcotic Drugs and
Psychotropic Substances Act, 1985 – s.37.
Code of Criminal Procedure, 1973 – ss.41, 41A – Power of
B arrest – Held: Enforcement of a legislation has to be consistent
with the fundamental rights – Power of arrest is to be exercised
with caution – Mere unilateral allegation by any individual
belonging to any caste, when such allegation is clearly motivated
and false, cannot deprive a person of his liberty without an
independent scrutiny – Scheduled Castes and the Scheduled
C Tribes(Prevention of Atrocities) Act, 1989.
Interpretation of Statutes – Literal interpretation vis-à-vis
purposive interpretation – Held: A statute is to be read in the context
of the background and its object – Exclusion of provision for
anticipatory bail cannot possibly, by any reasonable interpretation,
D be treated as applicable when no case is made out or allegations
are patently false or motivated – Doctrines/Principles – Doctrine
of proportionality.
Criminal Trial – Presumption of innocence – Held: Presumption
of innocence is a human right – Placing of burden of proof on
E accused in certain circumstances may be permissible but there cannot
be presumption of guilt so as to deprive a person of his liberty –
Protection of innocent is as important as punishing the guilty –
Human rights.
Constitution of India – Powers/Role of Supreme Court to issue
F appropriate orders or directions for enforcement of fundamental
rights – Held: Role of Supreme Court travels beyond merely dispute
settling and directions can be issued which are not directly in conflict
with a valid statute – Power to declare law carries with it, within the
limits of duty, to make law when none exists.

G Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 – Purpose and object of – Discussed.
Allowing the appeal, the Court
HELD: Consideration of the issue whether directions can
be issued by this Court to protect fundamental right under Article
H 21 against uncalled for false implication and arrests
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 879
MAHARASHTRA AND ANR.

1.1 Jurisdiction of Supreme Court to issue appropriate A
orders or directions for enforcement of fundamental rights is a
basic feature of the Constitution. Supreme Court, as the ultimate
interpreter of the Constitution, has to uphold the constitutional
rights and values. Articles 14, 19 and 21 of the Constitution
represent the foundational values which form the basis of the
B
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 C
nullified by this Court by appropriate orders or directions. Power
of the legislature has to be exercised consistent with the
fundamental rights. Enforcement of a legislation has also to be
consistent with the fundamental rights. Undoubtedly, the Supreme
Court has jurisdiction to enforce the fundamental rights of life
D
and liberty against any executive or legislative action. The
expression ‘procedure established by law’ under Article 21
implies just, fair and reasonable procedure. [Para 31] [913-G-H;
914-A-D]
1.2 The Supreme Court is not expected to adopt a passive
or negative role and remain bystander or a spectator if violation E
of rights is observed. It is necessary to fashion new tools and
strategies so as to check injustice and violation of fundamental
rights. No procedural technicality can stand in the way of
enforcement of fundamental rights. Role of Supreme Court travels
beyond merely dispute settling and directions can certainly be F
issued which are not directly in conflict with a valid statute. Power
to declare law carries with it, within the limits of duty, to make
law when none exists. There are innumerable occasions when
Supreme Court has issued directions for enforcement of
fundamental rights e.g., directions regarding functioning of caste
scrutiny Committee; directions to regulate appointment of law G
officers; directions to regulate powers of this Court and High
Courts in designating Senior Advocates; guidelines have been
issued for the welfare of a child accompanying his/her mother in
imprisonment; directions for checking trafficking of women and
children; for night shelters for the homeless; directions to check H
880 SUPREME COURT REPORTS [2018] 4 S.C.R.

A malnutrition in children; directions to provide medical assistance
by Government run hospitals; directions for protection of human
rights of prisoners; directions for speedy trial of under trials.
[Paras 32, 35] [914-D-F; 917-D-F]
Maneka Gandhi vs. UOI (1978) 1 SCC 248 : [1978] 2
B SCR 621 – followed.
1.3 In Joginder Kumar, it was observed that horizon of
human rights is expanding. There are complaints of violation of
human rights because of indiscriminate arrests. The law of arrest
is of balancing individual rights, liberties and privileges, duties,
C obligations and responsibilities. On the one side is the social
need to check a crime, on the other there is social need for
protection of liberty, oppression and abuse by the police and the
other law enforcing agencies. The 3rd Report of the National Police
Commission was noted to the effect that power of arrest was one
of the chief sources of corruption of police. 60% of arrests were
D unnecessary or unjustified. The arrest could be justified only in
grave offences to inspire the confidence of the victim, to check
the accused from committing further crime and to prevent him
from absconding. The National Police Commission recommended
that the police officer making arrest should record reasons. It
E was observed that no arrest can be made merely because it is
lawful to do so. The exercise of power must be for a valid purpose.
Except in heinous offences arrest must be avoided. This
requirement was read into Article 21. In Arnesh Kumar, it was
observed that arrest brings humiliation, curtails freedom and casts
scars forever. It is considered a tool for harassment and
F oppression. The drastic power is to be exercised with caution.
Power of arrest is a lucrative source of corruption. Referring to
the amendment of law in Section 41 Cr.P.C., in the light of
recommendations of the Law Commissions, it was directed that
arrest may be justified only if there is ‘credible information’ or
G ‘reasonable suspicion’ and if arrest was necessary to prevent
further offence or for proper investigation or to check interference
with the evidence. Reasons are required to be recorded. However,
compliance on the ground is far from satisfactory for obvious
reasons. The scrutiny by the Magistrates is also not adequate.
[Para 36] [918-A-F]
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 881
MAHARASHTRA AND ANR.

Joginder Kumar v. State of U.P. (1994) 4 SCC 260; A
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 :
[2014] 8 SCR 128 – relied on.
Further consideration of potential impact of working of Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 on spreading casteism B
2. Working of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 should not result in
perpetuating casteism which can have an adverse impact on
integration of the society and the constitutional values. Secularism
is a basic feature of the Constitution. Irrespective of caste or C
religion, the Constitution guarantees equality in its preamble as
well as other provisions including Articles 14-16. The Constitution
envisages a cohesive, unified and casteless society. Interpretation
of the Atrocities Act should promote constitutional values of
fraternity and integration of the society. This may require check
on false implications of innocent citizens on caste lines. [Paras D
42, 47] [929-H; 930-A-B; 933-B-C]
Issue of anticipatory bail
3.1 Section 18 of the Atrocities Act contains bar against
grant of anticipatory bail. Exclusion of anticipatory bail has been E
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 F
at the whim of another. Law has to protect the innocent and punish
the guilty. Thus considered, exclusion has to be applied to genuine
cases and not to false ones. This will help in achieving the object
of the law. If the provisions of the Act are compared as against
certain other enactments where similar restrictions are put on G
consideration of matter for grant of anticipatory bail or grant of
regular bail, an interesting situation emerges. [Paras 49-52] [933-
D-E; 934-C-E]
3.2 Section 17(4) of the Terrorist and Disruptive Activities
(Prevention) Act, 1985 (“TADA” - since repealed) stated
H
882 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “…nothing in Section 438 of CrPC shall apply in relation to any
case involving the arrest of any person on an accusation of having
committed an offence punishable under the provisions of this
Act…”. Section 17(5) of the TADA Act put further restriction on
a person accused of an offence punishable under the TADA Act
being released on regular bail and one of the conditions was:
B
Where the Public Prosecutor opposes the application for grant
of bail, the court had to be satisfied that there were reasonable
grounds for believing that the accused was not guilty of such
offence and that he was not likely to commit any such offence
while on bail. The provisions of the Unlawful Activities
C (Prevention) Act, 1967, namely under Section 43D(4) and 43D(5)
are similar to the aforesaid Sections 17(4) and 17(5) of the TADA
Act. Similarly the provisions of Maharashtra Control of Organised
Crime Act, 1999, namely, Sections 21(3) and 21(4) are also identical
in terms. Thus the impact of release of a person accused of having
committed the concerned of fences under these special
D
enactments was dealt with by the Legislature not only at the stage
of consideration of the matter for anticipatory bail but even after
the arrest at the stage of grant of regular bail as well. The
provisions of the Narcotic Drugs and Psychotropic Substances
Act, 1985 are however, distinct in that the restriction under
E Section 37 is at a stage where the matter is considered for grant
of regular bail. No such restriction is thought of and put in place
at the stage of consideration of matter for grant of anticipatory
bail. On the other hand, the provisions of the Act are diametrically
opposite and the restriction in Section 18 is only at the stage of
consideration of matter for anticipatory bail and no such restriction
F
is available while the matter is to be considered for grant of
regular bail. Theoretically it is possible to say that an application
under Section 438 of CrPC may be rejected by the Court because
of express restrictions in Section 18 of the Atrocities Act but the
very same court can grant bail under the provisions of Section
G 437 of CrPC, immediately after the arrest. There seems to be
no logical rationale behind this situation of putting a fetter on
grant of anticipatory bail whereas there is no such prohibition in
any way for grant of regular bail. It is, therefore, all the more
necessary and important that the express exclusion under Section
18 of the Atrocities Act is limited to genuine cases and
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 883
MAHARASHTRA AND ANR.

inapplicable where no prima facie case is made out. [Para 52] A
[934-E-H; 935-A-E]
3.3 If a person is able to show that, prima facie, he has not
committed any atrocity against a member of SC and ST and that
the allegation was mala fide and prima facie false and that prima
facie no case was made out, no justification is seen for applying B
Section 18 in such cases. The perpetrators of atrocities should
not be granted anticipatory bail so that they may not terrorise
the victims. Consistent with this view, it can certainly be said
that innocent persons against whom there was no prima facie
case or patently false case cannot be subjected to the same
treatment as the persons who are prima facie perpetrators of the C
crime. [Para 53] [935-F-H; 936-A]
3.4 It is well settled that a statute is to be read in the
context of the background and its object. Instead of literal
interpretation, the court may, in the present context, prefer
purposive interpretation to achieve the object of law. Doctrine of D
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 E
a judicial function depending on facts. As a policy, anticipatory
bail may be excluded but exclusion cannot be intended to apply
where a patently malafide version is put forward. Courts have
inherent jurisdiction to do justice and this jurisdiction cannot be
intended to be excluded. Thus, exclusion of Court’s jurisdiction
is not to be read as absolute. There can be no dispute with the F
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 G
interpretation, be treated as applicable when no case is made out
or allegations are patently false or motivated. If this interpretation
is not taken, it may be difficult for public servants to discharge
their bona fide functions and, in given cases, they can be
blackmailed with the threat of a false case being registered under
H
884 SUPREME COURT REPORTS [2018] 4 S.C.R.

A the Atrocities Act, without any protection of law. This cannot be
the scenario in a civilized society. Similarly, even a non public
servant can be blackmailed to surrender his civil rights. This is
not the intention of law. Such law cannot stand judicial scrutiny.
It will fall foul of guaranteed fundamental rights of fair and
reasonable procedure being followed if a person is deprived of
B
life and liberty. Thus, literal interpretation cannot be preferred
in the present situation. [Paras 56, 58 and 59] [936-D-E; 938-B-F]
3.5 The exclusion of Section 438 Cr.P.C. applies when a
prima facie case of commission of offence under the Atrocities
Act is made. On the other hand, if it can be shown that the
C allegations are prima facie motivated and false, such exclusion
will not apply. Section 18 of the Atrocities Act has, thus, to be
read and interpreted in this manner. [Paras 60, 63] [938-F-G;
943-C-D]
3.6 Concept of “Due process” and principles of 8 t h
D Amendment of the U.S. Constitution have been read by this Court
as part of guarantee under Article 21 of the Constitution.
Presumption of innocence is a human right. No doubt, placing of
burden of proof on accused in certain circumstances may be
permissible but there cannot be presumption of guilt so as to
E deprive a person of his liberty without an opportunity before an
independent forum or Court. In view of the above, an accused is
certainly entitled to show to the Court, if he apprehends arrest,
that case of the complainant was motivated. If it can be so shown
there is no reason that the Court is not able to protect liberty of
such a person. There cannot be any mandate under the law for
F arrest of an innocent. The law has to be interpreted accordingly.
In the working of the Act in the last three decades, it has been
judicially acknowledged that there are instances of abuse of the
Act by vested interests against political opponents in Panchayat,
Municipal or other elections, to settle private civil disputes
G arising out of property, monetary disputes, employment disputes
and seniority disputes. It may be noticed that by way of rampant
misuse complaints are ‘largely being filed particularly against
Public Servants/quasi judicial/judicial officers with oblique motive
for satisfaction of vested interests’. [Paras 64-66] [943-E; 944-F;
946-G-H; 947-A-B]
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 885
MAHARASHTRA AND ANR.

3.7 Innocent citizens are termed as accused, which is not A
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
B
inapplicable to cases where there is no prima facie case was made
out, there will be no protection available to innocent citizens.
Thus, limiting the exclusion of anticipatory bail in such cases is
essential for protection of fundamental right of life and liberty
under Article 21 of the Constitution. Accordingly, it is held that
exclusion of provision for anticipatory bail will not apply when no C
prima facie case is made out or the case is patently false or mala
fide. This may have to be determined by the Court concerned in
facts and circumstances of each case in exercise of its judicial
discretion. In doing so, a well established principle of law is being
reiterated that protection of innocent against abuse of law is part
D
of inherent jurisdiction of the Court being part of access to justice
and protection of liberty against any oppressive action such as
mala fide arrest. In doing so, the efficacy of Section 18 is not
being diluted in deserving cases where Court finds a case to be
prima facie genuine warranting custodial interrogation and pre-
trial arrest and detention. Protection of innocent is as important E
as punishing the guilty. [Paras 67, 68 and 71] [947-B-F; 948-F-G]
3.8 It is difficult to hold that the legislature wanted exclusion
of judicial function of going into correctness or otherwise of the
allegation in a criminal case before liberty of a person is taken
away. The legislature could not have intended that any unilateral F
version should be treated as conclusive and the person making
such allegation should be the sole judge of its correctness to the
exclusion of judicial function of courts of assessing the truth or
otherwise of the rival contentions before personal liberty of a
person is adversely affected. It is thus patent that in cases under
the Atrocities Act, exclusion of right of anticipatory bail is G
applicable only if the case is shown to bona fide and that prima
facie it falls under the Atrocities Act and not otherwise. Section
18 does not apply where there is no prima facie case or to cases
of patent false implication or when the allegation is motivated for
extraneous reasons. [Paras 73, 74] [949-E-H] H
886 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Issue of safeguards against arrest and false implications
4.1 The under privileged need to be protected against any
atrocities to give effect to the Constitutional ideals. The Atrocities
Act has been enacted with this objective. At the same time, the
said Act cannot be converted into a charter for exploitation or
B oppression by any unscrupulous person or by police for
extraneous reasons against other citizens as has been found on
several occasions. Any harassment of an innocent citizen,
irrespective of caste or religion, is against the guarantee of the
Constitution. This Court must enforce such a guarantee. Law
should not result in caste hatred. The preamble to the
C Constitution, which is the guiding star for interpretation,
incorporates the values of liberty, equality and fraternity. There
is need to safeguard innocent citizens against false implication
and unnecessary arrest for which there is no sanction under the
law which is against the constitutional guarantee and law of arrest
D laid down by this Court. Normal rule is to register FIR if any
information discloses commission of a cognizable offence. There
are however, exceptions to this rule and cases under the
Atrocities Act also fall in exceptional category where preliminary
inquiry must be held. Such inquiry must be time-bound and should
not exceed seven days. Even if preliminary inquiry is held and
E case is registered, arrest is not a must. [Paras 75, 76, 77, 79 and
80] [950-B-E; 952-G]
4.2 Accordingly, it is directed that in absence of any other
independent offence calling for arrest, in respect of offences under
the Atrocities Act, no arrest may be effected, if an accused person
F 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
G 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
H Act and is not frivolous or motivated. [Para 81] [953-C-E]
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 887
MAHARASHTRA AND ANR.

Consideration of present case A
5. The proceedings against the appellant are liable to be
quashed. [Para 82] [953-E-F]
Conclusions
6. Conclusions are as follows: B
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
C
complaint is found to be prima facie mala fide. The
view taken and approach of the Gujarat High Court in
Pankaj D Suthar and Dr. N.T. Desai is approved and
the judgments of this Court in Balothia and Manju Devi
are clarified;
iii) In view of acknowledged abuse of law of arrest in cases D
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
E
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 F
frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable
by way of disciplinary action as well as contempt.
The above directions are prospective. [Para 83] [953-F-H;
954-A-D] G
Pravinchandra N Solanki and Ors. v. State of Gujarat
(2012)1 GLR 499 – overruled.
State of M. P. v. Ram Krishna Balothia (1995) 3 SCC 221 :
[1995] 1 SCR 897; Manju Devi v. Onkarjit Singh
Ahluwalia (2017) 13 SCC 439 : [2017] 2 SCR 703 – clarified. H
888 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Union of India v. Raghubir Singh (1989) 2 SCC 754 :
[1989] 3 SCR 316; Indra Sawhney and Ors v. Union
of India and Ors. (1992) Suppl. 3 SCC 217 : [1992]
2 Suppl. SCR 454; Kedar Nath v. State of Bihar [1962]
Suppl. 2 SCR 769; Lalita Kumari v. State of U.P. (2014)
2 SCC 1: [2013] 14 SCR 713 – followed.
B
Dr. N.T. Desai v. State of Gujarat (1997) 2 GLR 942;
Pankaj D Suthar v. State of Gujarat (1992)1 GLR 405
– approved.
D.K. Basu v. State of W.B. (1997) 1 SCC 416 : [1996]
10 Suppl. SCR 284; Subramanian Swamy v. UOI (2016)
C 7 SCC 221 : [2016] 3 SCR 865; Vilas Pandurang Pawar
and Anr. v. State of Maharashtra and Ors. (2012) 8
SCC 795 : [2012] 8 SCR 270; Shakuntla Devi v.
Baljinder Singh (2014) 15 SCC 521; Bandhua Mukti
Morcha v. UOI (1984) 3 SCC 161 : [1984] 2 SCR 67;
D Vishakha v. State of Rajasthan (1997) 6 SCC 241 :
[1997] 3 Suppl. SCR 404; Lakshmi Kant Pandey v.
UOI (1983) 2 SCC 244; Common Cause v. UOI (1996)
1 SCC 753 : [1996] 1 SCR 89; M.C. Mehta v. State of
T.N. (1996) 6 SCC 756 : [ 1996] 9 Suppl. SCR 726;
Supreme Court Bar Asson. v. UOI (1998) 4 SCC 409 :
E [1998] 2 SCR 795; Dayaram vs. Sudhir Batham (2012)
1 SCC 333 : [2011] 15 SCR 1092; Rajesh Kumar v.
State (2011) 13 SCC 706; Siddharam Satlingappa
Mhetre v. State of Maharashtra (2011) 1 SCC 694 :
[2010] 15 SCR 201; Rini Johar & Ors. v. State of M.P.
F & Ors. (2016) 11 SCC 703; Hema Mishra v. State of
U.P. (2014) 4 SCC 453 : [2014] 1 SCR 465; Noor Aga
v. State of Punjab (2008) 16 SCC 417: [2008]
10 SCR 379; Dadu alias Tulsidas v. State of
Maharashtra (2000) 8 SCC 437; State of U.P. v.
Bhagwant Kishore Joshi [1964] 3 SCR 221; P.
G Sirajuddin v. State of Madras (1970) 1 SCC 595 : [1971]
1 SCR 304 – relied on.
Joti Prasad v. State of Haryana (1993) Suppl. 2 SCC
497; Badan Singh @ Baddo v. State of U.P. & Ors.
2002 CriLJ 1392; Adri Dharan Das v. State of West
H Bengal (2005) 4 SCC 303 : [2005] 2 SCR 188; Tata
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 889
MAHARASHTRA AND ANR.

Chemicals Ltd. v. Commissioner of Customs (2015) 11 A
SCC 628 : [2015] 7 SCR 132; Ganga Saran & Sons
Pvt. Ltd. v. Income Tax Officer & Ors. (1981) 3 SCC
143 : [1981] 3 SCR 564; M. C. Abraham v. State of
Maharashtra (2003) 2 SCC 649 : [2002] 5 Suppl.
SCR 677; D. Venkatasubramaniam v. M. K. Mohan
B
Krishnamachari (2009) 10 SCC 488 : [2009] 14
SCR 441; Gurbaksh Singh Sibbia etc. v. State of Punjab
[1980] 3 SCR 383; Nikesh Tarachand Shah v. Union
of India and Anr. (2017) 13 SCALE 609 : 2017 SCC
OnLine SC 1355; Jones v. State 2004 SCC OnLine
Mad 922 : 2004 CriLJ 2755; Dhiren Prafulbhai Shah C
v. State of Gujarat 2016 CriLJ 2217; Sharad v. State
of Maharashtra 2015(4) BomCR(Crl) 545; State of
Jharkhand and Anr. v. Govind Singh (2005)10 SCC
437 : [2004] 6 Suppl. SCR 651; Rohitash Kumar and
Ors v. Om Prakash Sharma and Ors. (2013) 11 SCC
D
451 : [2012] 13 SCR 47; Madhuri Patil v. Tribal
Development (1994) 6 SCC 241 : [1994] 3 Suppl.
SCR 50; State of Punjab v. Brijeshwar Singh Chahal
(2016) 6 SCC 1 : [2016] 4 SCR 685; Indira Jaising v.
Supreme Court of India (2017) 9 SCC 766; R.D.
Upadhyay v. State of A.P. (2007) 15 SCC 337: [2006] E
3 SCR 1132; Bachpan Bachao Andolan v. UOI (2011)
5 SCC 1 : [2011] 5 SCR 353; Union for Civil Liberties
v. UOI (2010) 5 SCC 318; People’s Union for Civil
Liberties v. UOI (2004) 12 SCC 104; Paschim Banga
Khet Mazdoor Samity v. State of W.B. (1996) 4 SCC 37
F
: [1996] 2 Suppl. SCR 331; Sunil Batra v. Delhi Admn.
(1978) 4 SCC 494 : [1979] 1 SCR 392; Hussainara
Khatoon (IV) v. Home Secy. State of Bihar (1980) 1 SCC
98 : [1979] 3 SCR 532; People’s Union for Civil
Liberties (PUCL) and Anr. Etc. v. Union of India and
Anr. (2003) 4 SCC 399 : [2003] 2 SCR 1136; Lal G
Kamlendra Pratap Singh v. State of Uttar Pradesh and
Ors. (2009) 4 SCC 437 : [2009] 4 SCR 1027; Kartar
Singh v. State of Punjab (1994) 3 SCC 569 : [1994]
2 SCR 375; State of Punjab v. Dalbir Singh (2012) 3
SCC 346 : [2012] 4 SCR 608 – referred to.
H
890 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Case Law Reference
(1993) Suppl. 2 SCC 497 referred to Para 12
2002 CriLJ 1392 referred to Para 12
[2005] 2 SCR 188 referred to Para 12
B [2015] 7 SCR 132 referred to Para 12
[1981] 3 SCR 564 referred to Para 12
[2002] 5 Suppl. SCR 677 referred to Para 13
[2009] 14 SCR 441 referred to Para 13
C
[1980] 3 SCR 383 referred to Para 15
(2017) 13 SCALE 609 referred to Para 16
2004 CriLJ 2755 referred to Para 21
2016 CriLJ 2217 referred to Para 21
D
2015(4) BomCR(Crl) 545 referred to Para 21
[2004] 6 Suppl. SCR 651 referred to Para 27
[2012] 13 SCR 47 referred to Para 27
[1978] 2 SCR 621 followed Para 31
E
[1984] 2 SCR 67 relied on Para 32
[1997] 3 Suppl. SCR 404 relied on Para 32
(1983) 2 SCC 244 relied on Para 32

F [1996] 1 SCR 89 relied on Para 32
[1996] 9 Suppl. SCR 726 relied on Para 32
[1998] 2 SCR 795 relied on Para 32
[2011] 15 SCR 1092 relied on Para 32
G [1989] 3 SCR 316 followed Para 33
(2011) 13 SCC 706 relied on Para 34
[1994] 3 Suppl. SCR 50 referred to Para 35
[2016] 4 SCR 685 referred to Para 35
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 891
MAHARASHTRA AND ANR.

(2017) 9 SCC 766 referred to Para 35 A
[2006] 3 SCR 1132 referred to Para 35
[2011] 5 SCR 353 referred to Para 35
(2010) 5 SCC 318 referred to Para 35
(2004) 12 SCC 104 referred to Para 35 B
[1996] 2 Suppl. SCR 331 referred to Para 35
[1979] 1 SCR 392 referred to Para 35
[1979] 3 SCR 532 referred to Para 35
C
(1994) 4 SCC 260 relied on Para 36
[2014] 8 SCR 128 relied on Para 36
[1996] 10 Suppl. SCR 284 relied on Para 37
[2016] 3 SCR 865 relied on Para 39
D
[1992] 2 Suppl. SCR 454 followed Para 44
[2003] 2 SCR 1136 referred to Para 45
[2012] 8 SCR 270 relied on Para 54
(2014) 15 SCC 521 relied on Para 54
E
[2014] 1 SCR 465 relied on Para 55
[2009] 4 SCR 1027 referred to Para 55
[1994] 2 SCR 375 referred to Para 55
[1962] Suppl. 2 SCR 769 followed Para 57 F
(2012)1 GLR 499 overruled Para 63
[2012] 4 SCR 608 referred to Para 64
[2008] 10 SCR 379 relied on Para 65
[2010] 15 SCR 201 relied on Para 71 G
(2016) 11 SCC 703 relied on Para 71
(2000) 8 SCC 437 relied on Para 72
(1992) 1 GLR 405 approved Para 74
H
892 SUPREME COURT REPORTS [2018] 4 S.C.R.

A (1997) 2 GLR 942 approved Para 74
[1995] 1 SCR 897 clarified Para 74
[2017] 2 SCR 703 clarified Para 74
[2013] 14 SCR 713 followed Para 77
B [1964] 3 SCR 221 relied on Para 78
[1971] 1 SCR 304 relied on Para 78
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 416 of 2018.
C From the Judgment and Order dated 05.05.2017 of the High Court
of Judicature at Bombay in Criminal Application No. 1015 of 2016.
Maninder Singh, ASG, Amerander Sharan (AC), C. U. Singh,
Sr. Advs., Amit Anand Tiwari, Shashwat Singh, Samarth Khanna, Aprajita
Mukherjee, Ms. Garima Bode Dey, M. Y. Deshmukh, Nandkumar
D N. Deshmukh, Shakti Pandey, Shrikant R. Deshmukh, Yatin M. Jagtap,
R. Balasubramanian, Shekhar Vyas, Prabhas Bajaj, Akshay Amritanshu,
Ms. Aarti Sharma, M. K. Maroria, Arpit Rai, Nishant Ramakantrao
Katneshwarkar, Abhay Anturkar, Abhay Anturkar & Associates, Gaurav
Agrawal, C. George Thomas, P. Angibabu, P.V. Saravanaraja, Neelesh
Singh Rao, Ms. Manisha T. Karia, Ms. Nidhi Nagpal, Ms. Saumya,
E Shashank Mangal, Mayk Samy K., K. Muthu Ganesa Pandian,
P. Somasunder, Advs., for the appearing parties.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. This appeal has been
F preferred against the order dated 5th May, 2017 of the High Court of
Judicature at Bombay in Criminal Application No.1015 of 2016.
2. On 20th November, 2017 the following order was passed by
this Court:-
“Heard learned counsel for the parties.
G Certain adverse remarks were recorded against respondent
no. 2-Bhaskar Karbhari Gaidwad by the Principal and Head
of the Department of the College of Pharmacy where
respondent no. 2 was employed. Respondent No. 2 sought
sanction for his prosecution under the provisions of the
H Scheduled Castes and the Scheduled Tribes (Prevention of
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 893
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

Atrocities) Act, 1989 and for certain other connected A
offences. The said matter was dealt with by the petitioner
and sanction was declined. This led to another complaint
by the respondent no. 2 against the petitioner under the said
provisions. The quashing of the said complaint has been
declined by the High Court.
B
The question which has arisen in the course of consideration
of this matter is whether any unilateral allegation of mala
fide can be ground to prosecute officers who dealt with the
matter in official capacity and if such allegation is falsely
made what is protection available against such abuse.
C
Needless to say that if the allegation is to be acted upon, the
proceedings can result in arrest or prosecution of the person
and have serious consequences on his right to liberty even
on a false complaint which may not be intended by law meant
for protection of a bona fide victim.
The question is whether this will be just and fair procedure D
under Article 21 of the Constitution of India or there can be
procedural safeguards so that provisions of Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
are not abused for extraneous considerations.
Issue notice returnable on 10th January, 2018. E
In the meanwhile, there shall be stay of further proceedings.
Issue notice to Attorney General of India also as the issue
involves interpretation of a central statute.
Mr. Amrendra Sharan, learned senior counsel is requested
F
to assist the Court as amicus. Mr. Sharan will be at liberty
to have assistance of Mr. Amit Anand Tiwari, Advocate. … …”
3. Though certain facts are stated while framing the question
already noted, some more facts may be noted. The appellant herein is
the original accused in the case registered at City Police Station, Karad
G
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. H
894 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 4. The second respondent - the complainant is an employee of the
department. He was earlier employed as a Store Keeper in the
Government College of Pharmacy, Karad. He was later posted at
Government Distance Education Institute, Pune. Dr. Satish Bhise and
Dr. Kishor Burade, who were his seniors but non-scheduled caste, made
adverse entry in his annual confidential report to the effect that his
B
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
C 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,
D
according to him, the appellant committed the offences alleged in the FIR
dated 28th March, 2016 by illegally dealing with the matter of sanction.
5. The complaint is fully extracted below:
“In the year 2009 I was working as store keeper in the Govt.
E Pharmacy College Karad, at that time I have registered
complaint to Karad City Police Station Cr. NO. 3122/09 u/s
3(1)9, 3(2)(7)6 of S.C. & S.T. (Prevention of Atrocities) Act
and the investigation was done by Shri Bharat Tangade, then
D.Y.S.P. Karad division Karad in the investigation 1) Satish
Balkrushna Bhise, then Principal Pharmacy College Karad,
F 2) Kishor Balkrishna Burade, then Professor, Pharmacy
College Karad has been realized as accused in the present
crime. Investigation officer collect sufficient evidence
against both the accused, but both the accused are from Govt.
Technical Education department Class 1 Public Servant, so
G before filing charge sheet against them he wrote the letter to
the senior office of the accused u/s 197 of Cr.P.C. to take
the permission at that time Mr. Subhash Kashinath Mahajan
was working as incharge director of the office. Today also
he is working as same post. Mr. Mahajan does not belongs
to S.C. & S.T. but he knew that I belongs to S.C. and S.T.
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 895
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

In fact both the accused involved in crime No. 3122/09 are A
working on class 1 post and to file a charge sheet against
them the permission has to be taken according to Cr.P.C.
Section 197. This fact known to Shri Mahajan and Mr.
Mahajan knew that this office did not have such right to
give permission. So Mr. Mahajan send letter to Mumbai
B
Office. Infact to give the required permission or to refuse
the permission is not comes under the jurisdiction of incharge
direction, Technical Education Mumbai. But, Mr. Mahajan
misused his powers so that, accused may be benefited, he
took the decision and refused the permission to file the charge
sheet against the accused. So that, investigation officer Shri C
Bharat Tangade fails to submit the charge sheet against the both
the accused, but he complain to submit ‘C’ summary report.”
6. The appellant, after he was granted anticipatory bail, applied to
the High Court under Section 482 Cr.P.C. for quashing the proceedings
on the ground that he had merely passed a bonafide administrative order D
in his official capacity. His action in doing so cannot amount to an offence,
even if the order was erroneous. The High Court rejected the petition.
7. Dealing with the contention that if such cases are not quashed,
recording of genuine adverse remarks against an employee who is a
member of SC/ST or passing a legitimate administrative order in discharge E
of official duties will become difficult and jeopardise the administration,
the High Court observed that no public servant or reviewing authority
need to apprehend any action by way of false or frivolous prosecution
but the penal provisions of the Atrocities Act could not be faulted merely
because of possibility of abuse. It was observed that in the facts and
circumstances, inherent power to quash could not be exercised as it F
may send a wrong signal to the downtrodden and backward sections of
the society.
8. We have heard Shri Amrendra Sharan, learned senior counsel,
appearing as amicus, Shri Maninder Singh, learned Additional Solicitor
General, appearing for the Union of India, Shri C.U. Singh, learned senior G
counsel and the other learned counsel appearing for the intervenors and
learned counsel for the parties and perused the record.
9. We may refer to the submissions put forward before the Court:

H
896 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Submissions of learned Amicus
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
B proceedings. He submitted the following table to explain his point:
Provisions of the SC/ST Act Applicability of the provisions in
invoked in this case the facts of the case

3. Punishment for offences atrocities. The provision mandates a “false and
– 3 [(1) Whoever, not being a frivolous information given by the
C member of a Scheduled Caste or a public servant”, however in the
Scheduled Tribe, - present case, the Petitioner has
(ix): gives any false or frivolous denied sanction for prosecution
information to any public servant and which clearly does not amount to
thereby causes such public servant to false or frivolous information.
use his lawful power to the injury or Thus, a case under Section 3(1)(ix)
D annoyance of a member of a of the SC/ST Act is not made out.
Scheduled Caste or a Scheduled
Tribe;
3(2)(vi): knowingly or having reason Section 3(2)(vi) requires causing of
to believe that an offence has been disappearance of evidence with the
committed under this Chapter, causes intention of screening the offender
any evidence of the commission of from legal punishment, however, in
E that offence to disappear with the the present case, there is no
intention of screening the offender allegation that the petitioner has
from legal punishment, or with that caused disappearance of any
intention gives any information evidence. Therefore the ingredients
respecting the offence which he of Sections 3(2)(vi) is not made out.
knows or believes to be false, shall be
F punishable with the punishment
provided for that offence;
(vii) being a public servant, commits Since no offence under section 3 of
any offence under this section, shall the SCST is made out this section
be punishable with imprisonment for cannot be attracted.
a term which shall not be less than
one year but which may extend to the
G punishment provided for that offence.

Provisions of IPC alleged Applicability of the pr ovision s
in the fac ts of inst ant case
182. False inf ormat ion, w ith A fa lse informa tion is an
int ent to cause public ser vant t o inform ation which h as be en
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 897
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

A
use his lawful power to the given deliberately with an
injury of another person. – intention to deceive. However,
Whoever gives to any public in this case denial of sanction for
servant any information which he prosecution cannot be construed
knows or believes to be false, as a false information in any
intending thereby to cause, or way. It is an order of
knowing it to be likely that he will administrative authority. B
thereby cause, such public servant Therefore no case is made out
in – under Section 182 of the code.
(a) to do or omit anything which
such public servant ought not to
and do or omit if the true state of facts
the respecting which such information
the is given were kn own by him, or C
has
tion (b) to use the lawful power of
t to such public servant to the injury
ion. or annoyance of any person, shall
(ix) be punished with imprisonment of
. either description for a term which D
may extend to six months, or with
fine which may extend to one
g of thou sand rupees, or with both.
the 192. Fabricating false evidence. The ingredients of Section 192
nder –whoever causes any IPC is not made out therefore
, in circumstance to exist or *[makes this section will not apply in the
no any false entry in any book or present case. It was not a E
has record, or electronic record or judicial proceeding and the
any makes any document or electronic petition er has neither fabricated
ents record containing a false false evidence nor made any
out. statement, inten ding that such false entry in any book, record or
circumstance, false entry or false electronic data. Mere exercising
statement may appear in evidence of administrative power cannot
in a judicial proceeding, or in a be construed as fabricating false
F
3 of proceeding taken by law before a evidence.
tion public servant as such, or before
an arbitrator, and that such
circumstance, false entry or false
statement, so appearing in
evidence, may cause any person G
who in such proceeding is to form
an opinion upon the evidence, to
on s entertain an erroneous op inion
touching any point material to the
an result of such proceeding, is said
“to fabricate false evidence”.
H
898 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Sin ce there was no ‘false
193. Punishment for false
evidence. – Whoever eviden ce’, therefore th e
in tentionally gives false eviden ce possibility of pun ishment
in any stage of a judicial accruing to false evidence is
proceeding, or fabricates false ruled out.
evidence for th e purpose of being
B used in any stage of a judicial
proceeding, sh all be punished
with imprison ment of eith er
description for a term which may
exten d to seven years, an shall
also b e liable to fine, and whoever
in tentionally gives or fabricates
C
false eviden ce in an y oth er case,
shall be p unish ed with
imprisonmen t of eith er description
for a term which may extend to
three years, and sh all also be
liable.
D 203. Giving false information For the reasons already stated
respecting an offence hereinabove, the presen t case
committed. – Wh oever knowing does not meet the ingredients of
or having reason to believe that an this section, therefore is
offence has been committed, gives precluded from being prosecuted
any information respectin g that here. A mere opinion of a senior
E offence which h e knows or officer in an ACR d oes not
believes to be false, shall be amount to giving false
punish ed with imprisonment of information.
either description for a term which
may extend to two years, or with
fine, or with both.
219. Public servant in judicial The denial of san ction to
F proceeding corruptly making prosecute the two government
report, etc., contrary to law. – servants against wh om th e
Whoever, being a public servant, Complain ant/ Responden t no. 2
corruptly or maliciously makes or had originally filed an FIR
pronounces in any stag e of a cannot be construed as making
judicial proceeding, any report, corrupt rep ort therefore the case
G order verdict, or decision which of the petitioner does not fall
he knows to be contrary to law, within the ambit of this
shall be p unish ed with provision.
imprisonmen t of eith er description
for a term which may extend to
seven years, or with fine, or with
both .
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 899
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

false 11. It was submitted by learned amicus that FIR was lodged after A
th e five years of the order passed by the appellant. The order was passed
ment on 20th January, 2011 while the FIR was lodged on 28th March, 2016
e is 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 malafides, even if order passed by the appellant was
B
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 C
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
ated procedure. Referring to Section 41(1)(b) Cr.P.C. it was submitted that D
case arrest could be effected only if there was ‘credible’ information and
ts of only if the police officer had ‘reason to believe’ that the offence had
is been committed and that such arrest was necessary. Thus, the power
uted of arrest should be exercised only after complying with the safeguards
nior
not
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 E
false
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 Haryana1, Badan
Singh @ Baddo versus State of U.P. & Ors.2, Adri Dharan Das
to
ment
versus State of West Bengal 3 , Tata Chemicals Ltd. versus F
th e Commissioner of Customs4 and Ganga Saran & Sons Pvt. Ltd. versus
o. 2 Income Tax Officer & Ors.5 In the present context, to balance the
FIR right of liberty of the accused guaranteed under Article 21, which could
king be taken away only by just fair and reasonable procedure and to check
case abuse of power by police and injustice to a citizen, exercise of right of
fall G
this
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
1
1993 Supp (2) SCC 497
2
2002 CriLJ 1392
3
(2005) 4 SCC 303
4
(2015) 11 SCC 628
5
(1981) 3 SCC 143 H
900 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B 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.6, M.C. Abraham versus State
of Maharashtra7, D. Venkatasubramaniam versus M. K. Mohan
Krishnamachari8, Arnesh Kumar versus State of Bihar9 and Rini
Johar & Ors. versus State of M.P. & Ors.10
C 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,
D 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
E 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
F 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
Balothia11 but the said judgment was in ignorance of the Constitution
Bench judgment in Gurbaksh Singh Sibbia etc. versus State of
Punjab12. If a Court is not debarred from granting anticipatory bail
G 6
(1994) 4 SCC 260
7
(2003) 2 SCC 649
8
(2009) 10 SCC 488
9
(2014) 8 SCC 273
10
(2016) 11 SCC 703
11
(1995) 3 SCC 221
12
(1980) 2 SCC 565
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 901
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

even in most heinous offences including murder, rape, dacoity, robbery, A
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
B
object of the Atrocities Act. In this regard, reliance has been placed on
following observations in Sibbia (supra).
“10. Shri V.M. Tarkunde, appearing on behalf of some of
the appellants, while supporting the contentions of the other
appellants, said that since the denial of bail amounts to
deprivation of personal liberty, courts should lean against C
the imposition of unnecessary restrictions on the scope of
Section 438, when no such restrictions are imposed by the
legislature in the terms of that section. The learned Counsel
added a new dimension to the argument by invoking Article
21 of the Constitution. He urged that Section 438 is a D
procedural provision which is concerned with the personal
liberty of an individual who has not been convicted of the
offence in respect of which he seeks bail and who must
therefore be presumed to be innocent. The validity of that
section must accordingly be examined by the test of fairness
and reasonableness which is implicit in Article 21. If the E
legislature itself were to impose an unreasonable restriction
on the grant of anticipatory bail, such a restriction could
have been struck down as being violative of Article 21.
Therefore, while determining the scope of Section 438, the
court should not impose any unfair or unreasonable F
limitation on the individual’s right to obtain an order of
anticipatory bail. Imposition of an unfair or unreasonable
limitation, according to the learned Counsel, would be
violative of Article 21, irrespective of whether it is imposed
by legislation or by judicial decision.
G
13. … …The High Court and the Court of Session to whom
the application for anticipatory bail is made ought to be left
free in the exercise of their judicial discretion to grant bail
if they consider it fit so to do on the particular facts and
circumstances of the case and on such conditions as the case
may warrant. …. H
902 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 21. …. …A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out of
its intemperate use. …
26. We find a great deal of substance in Mr. Tarkunde’s
submission that since denial of bail amounts to deprivation
B of personal liberty, the court should lean against the
imposition of unnecessary restrictions on the scope of Section
438, especially when no such restrictions have been imposed
by the legislature in the terms of that section. Section 438 is
a procedural provision which is concerned with the personal
liberty of the individual, who is entitled to the benefit of the
C presumption of innocence since he is not, on the date of his
application for anticipatory bail, convicted of the offence
in respect of which he seeks bail. An over-generous infusion
of constraints and conditions which are not to be found in
Section 438 can make its provisions constitutionally
D vulnerable since the right to personal freedom cannot be
made to depend on compliance with unreasonable
restrictions. The beneficent provision contained in Section
438 must be saved, not jettisoned. No doubt can linger after
the decision in Maneka Gandhi (1978) 1 SCC 248, that in
order to meet the challenge of Article 21 of the Constitution,
E the procedure established by law for depriving a person of
his liberty must be fair, just and reasonable. Section 438, in
the form in which it is conceived by the legislature, is open
to no exception on the ground that it prescribes a procedure
which is unjust or unfair. We ought, at all costs, to avoid
F throwing it open to a Constitutional challenge by reading
words in it which are not to be found therein.”
16. Reliance has also placed on recent judgment of this Court in
Nikesh Tarachand Shah versus Union of India and Anr.13 declaring
Section 45 of the Prevention of Money Laundering Act, 2002
G 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.

13
H (2017) 13 Scale 609, 2017 SCC OnLine SC 1355
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 903
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

Submissions of counsel for intervenor supporting the appeal A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
904 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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 clause 14 (Punishment
for false or malicious complaint and false evidence) in ‘The
Sexual Harassment of women at Workplace (Prevention,
B
Prohibition and Redressal) Act, 2013.”
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
C 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
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.
E f. The proceedings may be recorded to avoid allegations
of bias and non-transparency.”
20. The following further safeguards have been suggested by
the counsel for the intervenor:
“Arrest specifically in connection with offences under POA
F Act should only be made with the prior sanction of the
Magistrate. However this may not apply in case arrest has
to be made in connection with other offences under IPC.
Further the gravity of offence also needs to be seen since
most of the cases at the institutional level are only on the
G basis of mere altercations or action by the public servants in
their official capacity.
Secondly if the Accused under the POA Act surrenders with
prior notice to the Public Prosecutor, then his bail Application
should be considered on the same day and if not the regular
H bail, then at the least interim bail should be granted in the
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 905
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

interest of justice. This requirement may be read into Section A
18 of the POA Act.”
21. In support of the submission that courts have acknowledged
the misuse of law, reliance has also been placed on the following
Judgments:
(i) Judgment of the Madras High Court in Jones versus State14 B
wherein the High Court observed:
“This Court recently has brought to light the misuse of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 against people of other community. This
is another example of misuse of the Act. The purpose of C
bringing SC & ST Act is to put down the atrocities committed
on the members of the scheduled castes and scheduled tribes.
The law enforcing authorities must bear in mind that it
cannot be misused to settle other disputes between the
parties, which is alien to the provisions contemplated under D
the Act. An Act enacted for laudable purpose can also become
unreasonable, when it is exercised overzealously by the
enforcing authorities for extraneous reasons. It is for the
authorities to guard against such misuse of power conferred
on them.”
E
(ii) Judgment of Gujarat High Court in Dr. N.T. Desai vs. State of
Gujarat15 observing :
“But then having closely examined the complaint more
particularly in the context and light of the backdrop of the
peculiar facts situation highlighted by the petitioner leading F
ultimately to filing of the complaint, this Court prime facie
at the very outset is at some doubt about the complainant’s
story and yet if it readily, mechanically like a gullible child
accepts the allegations made in the complaint at its face
value, it would be surely blundering and wandering away
from the path of bail-justice, making itself readily available G
in the hands of the scheming complainant who on mere
asking will get arrested accused on some false allegations
of having committed non-bailable offence, under the Atrocity
14
2004 SCC OnLine Mad 922 : 2004 CriLJ 2755
15
(1997) 2 GLR 942 H
906 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Act, meaning thereby the Court rendering itself quite deaf,
dumb and blind mortgaging its commonsense, ordinary
prudence with no perception for justice, denying the rightful
protection to the accused becoming ready pawn pliable in
the hands of sometime scheming, unscrupulous
complainants !!! This sort of a surrender to prima facie
B
doubtful allegation in the complaint is not at all a judicial
approach, if not unjudicial !! At the cost of repetition, 1 make
it clear that these observations are only preliminary, at this
stage only in peculiar background of the case highlighted
by petitioner-accused and for that purpose may be even in
C future be so highlighted by the accused in some other cases
to the satisfaction of the Court ! The reason is having regard
to the basic cardinal tenets of the criminal jurisprudence
more particularly in view of the peculiar circumstances
highlighted by the accused which allegedly actuated
complainant to victimise him, in case if ultimately at the end
D
of trial what the accused has submitted in defence is accepted
as probable or true and as a result, the accused is given a
clean bill, holding that the complaint was nothing else but
false, concoction by way of spite to wreck the personal
vengeance then in that case what indeed would be the
E remedy and redresses in the hands of the petitioner, who in
the instant case is Doctor by profession and for that purpose
in other cases an innocent citizen? He stands not only
stigmatised by filing of a false complaint against him but he
shall stand further subjected to trial !! Not only that but before
that even subjected to arrest before the public eye and taken
F
to Special Court where only he could pray for bail ! Thus,
subjected to all sort of agonies, pains and sufferings lowering
his image and esteem in the eye of public because the Court
when approached adopted the helpless attitude? Under such
bewildering circumstances, what indeed would be the face
G of the Court and the fate of the Administration of Justice
denying bail to some victimised innocent accused at crucial
stage when he surrenders to the Court custody for the
purpose?!! Should the Court proclaiming doing justice stand
befooled at the hands of some mischievous complainant with
head-down in shame !! Supposing for giving false evidence
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 907
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

before the Court, the complainant is ordered to be A
prosecuted, but then will such prosecutions of complainant
bring back the damage already done to an innocent !!
Bearing in mind this most embarrassing and excruciating
situation created by the complainant when, this Court as a
Constitutional functionary is duty bound to zealously protect
B
the liberty of citizen, should it be helplessly watching and
passively surrendering itself to sometimes prima facie ex-
facie malicious complaint denying simple bail to the accused?
In this regard, perhaps, it may be idly said that accused can
be given compensation for the malicious prosecution and
ultimate refusal of bail or anticipatory bail !! True, but then C
in that case what compensation can any Court would be in a
position to give when the complainant is a person who is
poor enough unable to pay a single pie?!! Not only that but
in case complainant is rich and able to pay compensation
then even can any monetary compensation ever adequately
D
compensate the wrong accused suffered at the hands of the
malicious complainant? It is here that the conscience of this
Court stands pricked and terribly perturbed and indeed will
have a sleepless night if what ought we do not know where
the petitioner, in the facts and circumstances of the case be
quite innocent and accordingly a needy consumer of bail E
justice and yet is unnecessarily subjected to arrest taken to
the police custody and then before Court because of denial
of bail to him at this stage !!”
(iii) Dealing with the same issue, the Gujarat High Court in Dhiren
Prafulbhai Shah versus State of Gujarat16 observed as under: F
“48. In the course of my present sitting, I have come across
various cases wherein the provisions of Atrocities Act are
misused. I find that various complaints are filed immediately
after elections, be it Panchayat, Municipal or Corporation,
alleging offence under the Atrocities Act. I have no hesitation G
in saying that in most of the cases, it was found that the
F.I.R.s/Complaints were filed only to settle the score with their
opponents after defeat in the elections. I have also come
across various cases, wherein, private civil disputes arising
16
2016 CriLJ 2217
H
908 SUPREME COURT REPORTS [2018] 4 S.C.R.

A out of property, monetary matters, dispute between an
employee and employer, dispute between the subordinate and
his superior - are given penal and the complaints are being
filed either under Section 190 r/w. 200 or F.I.Rs. at the police
station. The matter in hand is one another example of misuse
of the Act. As observed by me earlier, the purpose of bringing
B
SC and ST Act is to put-down the atrocities committed on the
members of the Scheduled Castes and Scheduled Tribes. The
law enforcing authorities must bear in mind that it cannot
be misused to settle other disputes between the parties like
the case one in hand, which is alien to the provisions
C contemplated under the laudable Act. An Act enacted for
laudable purpose can also become unreasonable, when it is
exercised over-zealously by the enforcing authorities for
extraneous reasons. It is for the authorities to guard against
such misuse of power conferred on them.
D 49. Passing mechanically orders by the Court of Magistrates
in complaint and/or registration of the F.I.R. at the Police
Station, which do not have any criminal element, causes great
hardships, humiliation, inconvenience and harassment to the
citizens. For no reasons the reputation of the citizen is put to
stake as immediately after the said orders are passed,
E innocent citizens are turned as accused. One should not
overlook the fact that there is Section-18 in the Atrocities
Act, which imposes a bar so far as the grant of anticipatory
bail is concerned, if the offence is one under the Atrocities
Act. If a person is accused having committed murder, dacoity,
F rape, etc., he can pray for anticipatory bail under Section-
438 of the Cr.P.C. on the ground that he is innocent and has
been falsely involved, but if a person alleged to have
committed an offence under the Atrocities Act, cannot pray
for an anticipatory bail because of the bar of Section-18 of
the Act, and he would get arrested. This is the reason for the
G authorities to guard against any misuse of the Provisions of
the Atrocities Act.”
(iv) Judgment of Gujarat High Court in Pankaj D Suthar versus
State of Gujarat17 observing:
17
H (1992)1 GLR 405
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 909
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

“4. …But then, what according to this Court is the most A
welcome step by way of collective wisdom of the Parliament
in ushering social beneficial legislation cannot be permitted
to be abused and converted into an instrument to blackmail
to wreak some personal vengeance for settling and scoring
personal vendetta or by way of some counter-blasts against
B
opponents some public servants, as prima facie appears to
have been done in the present case. The basic questions in
such circumstances therefore are-Whether a torch which is
lighted to dispel the darkness can it be permitted to set on
fire the innocent surroundings? Whether a knife an
instrument which is meant for saving human life by using C
the same in the course of operation by a surgeon, can it be
permitted to be used in taking the life of some innocent? The
very same fundamental question arises in the facts and
circumstances of this case also, viz., ‘whether any statute
like the present Atrocities Act, especially enacted for the
D
purposes of protecting weaker sections of the society hailing
from S.C. & S.T. communities can be permitted to be abused
by conveniently converting the same into a weapon of
wrecking personal vengeance on the opponents?’ The
answer to this question is undoubtedly and obviously ‘No’.
Under such circumstances, if the Courts are to apply such E
provision of Section 18 of the Atrocities Act quite
mechanically and blindly merely guided by some general
and popular prejudices based on some words and tricky
accusations in the complaint on mere assumptions without
intelligently scrutinising and testing the probabilities,
F
truthfulness, genuineness and otherwise dependability of the
accusations in the complaint etc., then it would be simply
unwittingly and credulously playing in the hands of some
scheming unscrupulous complainant in denying the justice.
Virtually, it would be tantamount to abdicating and relegating
its judicial duty, function of doing justice in such matters in G
favour and hands of such unscrupulous complainant by
making him a Judge in his own cause. This is simply
unthinkable and therefore impermissible. Whether the
provisions of any particular Act and for that purpose the
rules made thereunder are applicable to the facts of a
H
910 SUPREME COURT REPORTS [2018] 4 S.C.R.

A particular case or not, is always and unquestionably a matter
which lies strictly and exclusively within the domain of
‘judicial consideration-discretion’ and therefore neither mere
allegations made in the complainant by themselves nor bare
denials by the accused can either automatically vest or divest
the Court from discharging its ultimate judicial function-
B
duty to closely scrutinise and test the prima facie
dependability of the allegations made in the complaint and
reach its own decision.”
(v) Judgment of Bombay High Court in Sharad versus State of
Maharashtra18 observing :
C
“12. We hasten to add that such type of complaints for
rampant misuse of the provisions of Section 3(1)(x) of the
Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act, 1989, are largely being filed particularly
against Public Servants/quasi judicial/judicial officers with
D oblique motive for satisfaction of vested interests. We think
the learned Members of the Bar have enormous social
responsibility and obligation to ensure that the social fabric
of the society is not damaged or ruined. They must ensure
that exaggerated versions should not be reflected in the
E criminal complaints having the outrageous effect of
independence of judicial and quasi judicial authorities so
also the public servants. We cannot tolerate putting them in
a spooked, chagrined and fearful state while performing
their public duties and functions. We also think that a serious
re-look at the provisions of the Act of 1989 which are being
F now largely misused is warranted by the Legislature, of
course, on the basis of pragmatic realities and public opinion.
A copy of this Judgment is directed to be sent to the Law
Commission for information.”
22. It was, thus, submitted that above judgments are merely
G 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
H 18
2015(4) BomCR(Crl) 545
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 911
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

an employee, a committee should be formed in every department as A
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. ………….. B
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 C
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 D
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. E
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.
25. Reference has also been made to Annual Report 2016-2017 F
of the Ministry of Social Justice and Empowerment and data compiled
by the Government of Maharashtra for the years 1990 to 2013 (dated
30th April, 2013) in respect of offences registered under Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Protection
of Civil Rights Act, 1955 against Maharashtra Members of Parliament,
G
Member of Legislative Assembly, Zill Parishad Adhyaksha, Gramsevak,
Talathi, B.D.O., Collector, Palakmantri, Chief Minister, Home Minister,
IPS, IAS, IRS, IFS, MNP Commissioner, MNP Assistant Commissioner,
other Government Officer/Servant, other non-Government Officers/
Servants (numeric data prepared on the basis of information available).
H
912 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 26. As per data (Crime in India 2016 – Statistics) compiled by
the National Crime Records Bureau, Ministry of Home Affairs under
the headings “Police Disposal of Crime/Atrocities against SCs cases
(State/UT-wise)-2016” (Table 7A.4) and “Police Disposal of Crime/
Atrocities against STs Cases (State/UT-wise) – 2016” (Table 7C.4) it
is mentioned that in the year 2016, 5347 cases were found to be false
B
cases out of the investigated out of SC cases and 912 were found to be
false cases out of ST cases. It was pointed out that in the year 2015,
out of 15638 cases decided by the courts, 11024 cases resulted in acquittal
or discharge, 495 cases were withdrawn and 4119 cases resulted in
conviction. (Reference: Annual Report 2016-2017 published by the
C Department of Social Justice & Empowerment, Ministry of Social Justice
and Empowerment, Government of India).
Interventions against the appellant
27. Intervention application has also been filed by one Ananda
Sakharam Jadhav who claims to be convenor of the Bahujan Karmachari
D Kalyan Sangh. 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 Singh19 and Rohitash Kumar and Ors versus
Om Prakash Sharma and Ors.20 It was submitted that this Court could
E 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 Ahluwalia21. He also relied upon Statement of Objects
and Reasons of the Scheduled Castes and the Scheduled Tribes
F (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.
G
29. Further intervention has been sought by one Yogendra Mohan
Harsh. Learned counsel for the said intervenor submitted that atrocities

19
(2005)10 SCC 437
20
(2013)11 SCC 451
H 21
(2017) 13 SCC 439
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 913
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

against SCs and STs are increasing and if submissions of amicus are to A
be accepted, the Act will be rendered ineffective and teethless.
Submissions of learned Additional Solicitor General (ASG)
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 B
decisions of this Court in Vilas Pandurang Pawar and Anr. versus
State of Maharashtra and Ors. 22 and Shakuntla Devi versus
Baljinder Singh23 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 C
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 D
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 E
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. F
It was submitted that no guideline should be laid down by this Court
which may be legislative in nature.
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 G
31. We may, at the outset, observe that jurisdiction of this Court
to issue appropriate orders or directions for enforcement of fundamental
22
(2012) 8 SCC 795
23
(2014) 15 SCC 521
H
914 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B
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
C 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 procedure24.
D 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 rights25. There are enumerable
decisions of this Court where this approach has been adopted and
E 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 enacted26.
Role of this Court travels beyond merely dispute settling and directions
can certainly be issued which are not directly in conflict with a valid
F statute27. Power to declare law carries with it, within the limits of duty,
to make law when none exists28.
33. Constitution Bench of this Court in Union of India versus
Raghubir Singh29, observed :
24
Maneka Gandhi vs. UOI (1978) 1 SCC 248, paras 82 to 85
G 25
Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13
26
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
27
Supreme Court Bar Asson. V. UOI (1998) 4 SCC 409, para 48
28
Dayaram vs. Sudhir Batham (2012) 1 SCC 333, para 18
29
(1989(2) SCC 754
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 915
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

“7. … It used to be disputed that Judges make law. Today, it A
is no longer a matter of doubt that a substantial volume of
the law governing the lives of citizens and regulating the
functions of the State flows from the decisions of the superior
Courts. “There was a time,” observed Lord Reid, “When it
was thought almost indecent to suggest that Judges make
B
law - They only declare it.... But we do not believe in fairly
tales any more.” “The Judge as Law Maker”, p. 22. In
countries such as the United Kingdom, where Parliament as
the legislative organ is supreme and stands at the apex of
the constitutional structure of the State, the role played by
judicial law-making is limited. C
In the first place the function of the Courts is restricted to
the interpretation of laws made by Parliament, and the Courts
have no power to question the validity of Parliamentary
statutes, the Diceyan dictum holding true that the British
Parliament is paramount and all powerful. In the second D
place, the law enunciated in every decision of the Courts in
England can be superseded by an Act of Parliament. As
Cockburn C.J. observed in Exp. Canon Selwyn (1872) 36
JP Jo 54:
There is no judicial body in the country by which the validity
of an Act of Parliament could be questioned. An act of the E
Legislature is superior in authority to any Court of Law.
And Ungoed Thomas J., in Cheney v. Conn, (1968) 1 All ER
779 referred to a Parliamentary statute as “the highest form
of law...which prevails over every other form of law.” The
position is substantially different under a written Constitution F
such as the one which governs us. The Constitution of India,
which represents the Supreme Law of the land, envisages
three distinct organs of the State, each with its own distinctive
functions, each a pillar of the State.
Broadly, while Parliament and the State Legislature fin India G
enact the law and the Executive Government implements it,
the judiciary sits in judgment not only on the implementation
of the law by the Executive but also on the validity of the
Legislation sought to be implemented One of the functions
of the superior judiciary in India is to examine the
H
916 SUPREME COURT REPORTS [2018] 4 S.C.R.

A competence and validity of legislation, both in point of
legislative competence as well as its consistency with the
Fundamental Rights. In this regard, the Courts in India
possess a power not known to the English Courts. Where a
statute is declared invalid in India it cannot be reinstated
unless constitutional sanction is obtained therefore by a
B
constitutional amendment of an appropriately modified
version of the statute is enacted which accords with
constitutional prescription.
The range of judicial, review recognised in the superior
judiciary of India is perhaps the widest and the most extensive
C known to the world of law.
The power extends to examining the validity of even an
amendment to the Constitution, for now it has been repeatedly
held that no constitutional amendment can be sustained
which [violates the basic structure of the Constitution. See
D Kesavananda Bharati Sripadagalayaru v. State of Kerala
AIR1973SC1461), Smt. Indira Nehru. Gandhi v. Raj Narain
[1976]2SCR347], Minerva Mills Ltd. v. Union of India
[1981]1SCR206] and recently in S. P. Sampath Kumar v.
Union of India [(1987)ILLJ128SC]. With this impressive
expanse of judicial power, it is only right that the superior
E Courts in India should be conscious of the enormous
responsibility which rests on them. This is specially true of
the Supreme Court, for as the highest Court in the entire
judicial system the law declared by it is, by Article 141 of the
Constitution, binding on« all Courts within the territory of India.”
F 34. The law has been summed up in a decision in Rajesh Kumar
versus State30 as follows:
“62. Until the decision was rendered in Maneka Gandhi
(supra), Article 21 was viewed by this Court as rarely
embodying the Diceyian concept of rule of law that no one
G can be deprived of his personal liberty by an executive action
unsupported by law. If there was a law which provided some
sort of a procedure it was enough to deprive a person of his
life or personal liberty. In this connection, if we refer to the
example given by Justice S.R. Das in his judgment in A.K.
30
H (2011) 13 SCC 706
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 917
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

Gopalan (supra) that if the law provided the Bishop of A
Rochester ‘be boiled in oil’ it would be valid under Article
21. But after the decision in Maneka Gandhi (supra) which
marks a watershed in the development of constitutional law
in our country, this Court, for the first time, took the view
that Article 21 affords protection not only against the
B
executive action but also against the legislation which
deprives a person of his life and personal liberty unless the
law for deprivation is reasonable, just and fair. and it was
held that the concept of reasonableness runs like a golden
thread through the entire fabric of the Constitution and it is
not enough for the law to provide some semblance of a C
procedure. The procedure for depriving a person of his life
and personal liberty must be eminently just, reasonable and
fair and if challenged before the Court it is for the Court to
determine whether such procedure is reasonable, just and
fair and if the Court finds that it is not so, the Court will
D
strike down the same.”
35. Apart from the above, there are enumerable occasions when
this Court has issued directions for enforcement of fundamental rights
e.g., directions regarding functioning of caste scrutiny Committee31;
directions to regulate appointment of law officers32; directions to regulate
powers of this Court and High Courts in designating Senior Advocates33; E
guidelines have been issued for the welfare of a child accompanying his/
her mother in imprisonment34; directions for checking trafficking of
women and children35; for night shelters for the homeless36; directions
to check malnutrition in children37; directions to provide medical assistance
by Government run hospitals38; directions for protection of human rights of F
prisoners39; directions for speedy trial of under trials40. The list goes on.
31
Madhuri Patil v. Tribal Development (1994) 6 SCC 241
32
State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1
33
Indira Jaising versus Supreme Court of India (2017) 9 SCC 766
34
R.D. Upadhyay versus State of A.P. (2007) 15 SCC 337
35
Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1
G
36
Union for Civil Liberties versus UOI (2010)5 SCC 318
37
People’s Union for Civil Liberties versus UOI (2004) 12 SCC 104 and (2010) 15
SCC 57
38
Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4 SCC 37
39
Sunil Batra versus Delhi Admn. (1978) 4 SCC 494
40
Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98 H
918 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 36. Issuance of directions to regulate the power of arrest has
also been the subject matter of decisions of this Court. In Joginder
Kumar versus State of U.P.41, this Court observed that horizon of human
rights is expanding. There are complaints of violation of human rights
because of indiscriminate arrests. The law of arrest is of balancing
individual rights, liberties and privileges, duties, obligations and
B
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. This Court
noted the 3rd Report of the National Police Commission to the effect
that power of arrest was one of the chief sources of corruption of police.
C 60% of arrests were unnecessary or unjustified. The arrest could be
justified only in grave offences to inspire the confidence of the victim, to
check the accused from committing further crime and to prevent him
from absconding. The National Police Commission recommended that
the police officer making arrest should record reasons. This Court
observed that no arrest can be made merely because it is lawful to do
D
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
2142. In Arnesh Kumar versus State of Bihar43, this Court observed
that arrest brings humiliation, curtails freedom and casts scars forever.
It is considered a tool for harassment and oppression. The drastic power
E is to be exercised with caution. Power of arrest is a lucrative source of
corruption. Referring to the amendment of law in Section 41 Cr.P.C., in
the light of recommendations of the Law Commissions, it was directed
that arrest may be justified only if there is ‘credible information’ or
‘reasonable suspicion’ and if arrest was necessary to prevent further
offence or for proper investigation or to check interference with the evidence.
F
Reasons are required to be recorded. However, compliance on the ground
is far from satisfactory for obvious reasons. The scrutiny by the Magistrates
is also not adequate. This Court issued the following directions:
“11. Our endeavour in this judgment is to ensure that
police officers do not arrest the accused unnecessarily
G and Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed
above, we give the following directions:
41
(1994) 4 SCC 260
42
Para 21
43
H (2014) 8 SCC 273
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 919
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

11.1. All the State Governments to instruct its police A
officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid
down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list B
containing specified sub-clauses under Section
41(1)(b)(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the C
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention; D
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of Police of the district for the reasons E
to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A
CrPC be served on the accused within two weeks from
the date of institution of the case, which may be extended
by the Superintendent of Police of the district for the
F
reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable
to be punished for contempt of court to be instituted
before the High Court having territorial jurisdiction. G
11.8. Authorising detention without recording reasons
as aforesaid by the Judicial Magistrate concerned shall
be liable for departmental action by the appropriate
High Court.”
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920 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 37. In D.K. Basu versus State of W.B.44, this Court, to check
abuse of arrest and drastic police power, directed as follows:
“35. We, therefore, consider it appropriate to issue the
following requirements to be followed in all cases of arrest
or detention till legal provisions are made in that behalf as
B preventive measures:
(1) The police personnel carrying out the arrest and
handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with
their designations. The particulars of all such police
C personnel who handle interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out the arrest of the
arrestee shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by at least one witness,
who may either be a member of the family of the arrestee
D
or a respectable person of the locality from where the arrest
is made. It shall also be countersigned by the arrestee and
shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is
being held in custody in a police station or interrogation
E centre or other lock-up, shall be entitled to have one friend
or relative or other person known to him or having interest
in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular
place, unless the attesting witness of the memo of arrest is
F himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend
or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the
G police station of the area concerned telegraphically within
a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right
to have someone informed of his arrest or detention as soon
as he is put under arrest or is detained.
H 44
(1997) 1 SCC 416
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 921
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

(6) An entry must be made in the diary at the place of A
detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars
of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also B
examined at the time of his arrest and major and minor
injuries, if any present on his/her body, must be recorded at
that time. The “Inspection Memo” must be signed both by
the arrestee and the police officer effecting the arrest and
its copy provided to the arrestee.
C
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved
doctors appointed by Director, Health Services of the State
or Union Territory concerned. Director, Health Services
should prepare such a panel for all tehsils and districts as D
well.
(9) Copies of all the documents including the memo of
arrest, referred to above, should be sent to the Illaqa
Magistrate for his record.
E
(10) The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout the
interrogation.
(11) A police control room should be provided at all
district and State headquarters, where information regarding F
the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12
hours of effecting the arrest and at the police control room
it should be displayed on a conspicuous notice board.
36. Failure to comply with the requirements hereinabove
G
mentioned shall apart from rendering the official concerned
liable for departmental action, also render him liable to be
punished for contempt of court and the proceedings for
contempt of court may be instituted in any High Court of the
country, having territorial jurisdiction over the matter.
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922 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 37. The requirements, referred to above flow from Articles
21 and 22(1) of the Constitution and need to be strictly
followed. These would apply with equal force to the other
governmental agencies also to which a reference has been
made earlier.”
B 38. In Rini Johar (supra) this Court considered the issue of
wrongful arrest and payment of compensation. It was observed that
wrongful arrest violates Article 21 of the Constitution and thus the victim
of arrest was entitled to compensation. This Court noted the observations
and guidelines laid down against wrongful arrests in Joginder Kumar
(supra), D.K. Basu (supra), Arnesh Kumar (supra) and other cases
C and held that since the arrest is in violation of guidelines laid down by
this Court and is violative of Article 21, the person arrested was entitled
to compensation.
39. In Subramanian Swamy versus UOI 45, this Court
considered the issue of validity of provisions creating defamation as an
D offence. In the course of said judgment, need for harmony in competing
claims of different interests was considered. This Court observed that
the fundamental rights are all parts of an integrated scheme and their
waters must mix to constitute grand flow of impartial justice46. This
Court also observed that legislation should not invade the rights and should
E not smack of arbitrariness. Considering the principles of reasonableness,
this Court observed that ultimate impact of rights has to be determined.
This was different from abuse or misuse of legislation. Proportionality
of restraint has to be kept in mind while determining constitutionality.
Concept of public interest and social interest determine the needs of the
society47. After referring to Maneka Gandhi (supra), it was observed
F that it is the duty of this Court to strike a balance in the right of speech
and right to protect reputation48. The restriction of law should be rational
and connected to the purpose for which it is necessary. It should not be
arbitrary or excessive49.
40. Again this Court in Siddharam Satlingappa Mhetre versus
G State of Maharashtra50 laid down parameters for exercise of discretion
45
(2016) 7 SCC 221
46
Para 137
47
Para 130
48
Para 144
49
Para 194 and 195
H 50
(2011) 1 SCC 694
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 923
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

of anticipatory bail having regard to the fundamental right of liberty under A
Article 21 of the Constitution and the needs of the society where such
liberty may be required to be taken away. It was observed:
“Relevance and importance of personal liberty
36. All human beings are born with some unalienable rights
like life, liberty and pursuit of happiness. The importance B
of these natural rights can be found in the fact that these
are fundamental for their proper existence and no other right
can be enjoyed without the presence of right to life and
liberty. Life bereft of liberty would be without honour and
dignity and it would lose all significance and meaning and C
the life itself would not be worth living. That is why “liberty”
is called the very quintessence of a civilised existence. …
52. The fundamental rights represent the basic values
enriched by the people of this country. The aim behind having
elementary right of the individual such as the Right to Life D
and Liberty is not fulfilled as desired by the Framers of the
Constitution. It is to preserve and protect certain basic human
rights against interference by the State. The inclusion of a
chapter in the Constitution is in accordance with the trends
of modern democratic thought. The object is to ensure the
inviolability of certain essential rights against political E
vicissitudes. …
54. Life and personal liberty are the most prized possessions
of an individual. The inner urge for freedom is a natural
phenomenon of every human being. Respect for life, liberty
and property is not merely a norm or a policy of the State F
but an essential requirement of any civilised society.
64. The object of Article 21 is to prevent encroachment upon
personal liberty in any manner. Article 21 is repository of
all human rights essential for a person or a citizen. A fruitful
and meaningful life presupposes life full of dignity, honour, G
health and welfare. In the modern “Welfare Philosophy”, it
is for the State to ensure these essentials of life to all its
citizens, and if possible to non-citizens. While invoking the
provisions of Article 21, and by referring to the oftquoted
statement of Joseph Addison, “Better to die ten thousand
H
924 SUPREME COURT REPORTS [2018] 4 S.C.R.

A deaths than wound my honour”, the Apex Court in Khedat
Mazdoor Chetna Sangath v. State of M.P. (1994) 6 SCC 260
posed to itself a question “If dignity or honour vanishes
what remains of life?” This is the significance of the Right
to Life and Personal Liberty guaranteed under the
Constitution of India in its Third Part. …
B
International Charters
Universal Declaration of Human Rights, 1948
80. Article 3 of the Universal Declaration says:

C “3. Everyone has the right to life, liberty and security
of person.”
Article 9 provides:
“9. No one shall be subjected to arbitrary arrest,
detention or exile.”
D
Article 10 says:
“10. Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial
tribunal, in the determination of his rights and
obligations and of any criminal charge against him.”
E [As to its legal effect, see M. v. United Nations & Belgium
(1972) 45 Inter LR 446 (Inter LR at pp. 447, 451.)]
86. According to the Report of the National Police
Commission, when the power of arrest is grossly abused and
clearly violates the personal liberty of the people, as
F enshrined under Article 21 of the Constitution, then the courts
need to take serious notice of it. When conviction rate is
admittedly less than 10%, then the police should be slow in
arresting the accused. The courts considering the bail
application should try to maintain fine balance between the
G societal interest vis-à-vis personal liberty while adhering to
the fundamental principle of criminal jurisprudence that the
accused is presumed to be innocent till he is found guilty by
the competent court.
87. The complaint filed against the accused needs to be
H thoroughly examined including the aspect whether the
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 925
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

complainant has filed a false or frivolous complaint on A
earlier occasion. The court should also examine the fact
whether there is any family dispute between the accused and
the complainant and the complainant must be clearly told
that if the complaint is found to be false or frivolous, then
strict action will be taken against him in accordance with
B
law. If the connivance between the complainant and the
investigating officer is established then action be taken
against the investigating officer in accordance with law.
88. The gravity of charge and the exact role of the accused
must be properly comprehended. Before arrest, the arresting
officer must record the valid reasons which have led to the C
arrest of the accused in the case diary. In exceptional cases
the reasons could be recorded immediately after the arrest,
so that while dealing with the bail application, the remarks
and observations of the arresting officer can also be properly
evaluated by the court. D
89. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases where
the court is of the considered view that the accused has joined E
investigation and he is fully cooperating with the
investigating agency and is not likely to abscond, in that
event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached
to the arrest. Arrest leads to many serious consequences not F
only for the accused but for the entire family and at times
for the entire community. Most people do not make any
distinction between arrest at a pre-conviction stage or post-
conviction stage.
110. The Law Commission in July 2002 has severely criticised G
the police of our country for the arbitrary use of power of
arrest which, the Commission said, is the result of the vast
discretionary powers conferred upon them by this Code. The
Commission expressed concern that there is no internal
mechanism within the Police Department to prevent misuse
of law in this manner and the stark reality that complaint H
926 SUPREME COURT REPORTS [2018] 4 S.C.R.

A lodged in this regard does not bring any result. The
Commission intends to suggest amendments in the Criminal
Procedure Code and has invited suggestions from various
quarters. Reference is made in this article to the 41st Report
of the Law Commission wherein the Commission saw “no
justification” to require a person to submit to custody, remain
B
in prison for some days and then apply for bail even when
there are reasonable grounds for holding that the person
accused of an offence is not likely to abscond or otherwise
misuse his liberty. Discretionary power to order anticipatory
bail is required to be exercised keeping in mind these
C sentiments and spirit of the judgments of this Court in Sibbia
case (1980)2 SCC 565 and Joginder Kumar v. State of
U.P.(1994)4 SCC 260.
112. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
D (i) The nature and gravity of the accusation and
the exact role of the accused must be properly
comprehended before arrest is made;
(ii) The antecedents of the applicant including the
fact as to whether the accused has previously undergone
E imprisonment on conviction by a court in respect of any
cognizable offence;
(iii) The possibility of the applicant to flee from
justice;

F (iv) The possibility of the accused’s likelihood to
repeat similar or other offences;
(v) Where the accusations have been made only
with the object of injuring or humiliating the applicant
by arresting him or her;
G (vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude affecting a very
large number of people;
(vii) The courts must evaluate the entire available
material against the accused very carefully. The court
H must also clearly comprehend the exact role of the
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 927
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

accused in the case. The cases in which the accused is A
implicated with the help of Sections 34 and 149 of the
Penal Code, 1860 the court should consider with even
greater care and caution because overimplication in
the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of B
anticipatory bail, a balance has to be struck between
two factors, namely, no prejudice should be caused to
the free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;
C
(ix) The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of genuineness D
that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt as to
the genuineness of the prosecution, in the normal course
of events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be E
restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of that
case. The court must carefully examine the entire available
record and particularly the allegations which have been
directly attributed to the accused and these allegations are
corroborated by other material and circumstances on record. F
114. These are some of the factors which should be taken
into consideration while deciding the anticipatory bail
applications. These factors are by no means exhaustive but
they are only illustrative in nature because it is difficult to
clearly visualise all situations and circumstances in which a G
person may pray for anticipatory bail. If a wise discretion is
exercised by the Judge concerned, after consideration of
the entire material on record then most of the grievances in
favour of grant of or refusal of bail will be taken care of.
The legislature in its wisdom has entrusted the power to
H
928 SUPREME COURT REPORTS [2018] 4 S.C.R.

A exercise this jurisdiction only to the Judges of the superior
courts. In consonance with the legislative intention we
should accept the fact that the discretion would be properly
exercised. In any event, the option of approaching the
superior court against the Court of Session or the High Court
is always available.
B
Irrational and indiscriminate arrests are gross violation of
human rights
115. In Joginder Kumar case (supra) a three-Judge Bench
of this Court has referred to the 3rd Report of the National
C Police Commission, in which it is mentioned that the quality
of arrests by the police in India mentioned the power of arrest
as one of the chief sources of corruption in the police. The
Report suggested that, by and large, nearly 60% of the
arrests were either unnecessary or unjustified and that such
unjustified police action accounted for 43.2% of the
D expenditure of the jails.
116. Personal liberty is a very precious fundamental right
and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the
case.
E
117. In case, the State considers the following suggestions
in proper perspective then perhaps it may not be necessary
to curtail the personal liberty of the accused in a routine
manner. These suggestions are only illustrative and not
exhaustive:
F
(1) Direct the accused to join the investigation and
only when the accused does not cooperate with the
investigating agency, then only the accused be arrested.
(2) Seize either the passport or such other related
documents, such as, the title deeds of properties or the
G fixed deposit receipts/share certificates of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties
of a number of persons which according to the
prosecution are necessary in view of the facts of the
H particular case.
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 929
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

(5) The accused be directed to furnish undertaking A
that he would not visit the place where the witnesses
reside so that the possibility of tampering of evidence
or otherwise influencing the course of justice can be
avoided.
(6) Bank accounts be frozen for small duration during B
the investigation.
118. In case the arrest is imperative, according to the facts
of the case, in that event, the arresting officer must clearly
record the reasons for the arrest of the accused before the
arrest in the case diary, but in exceptional cases where it
becomes imperative to arrest the accused immediately, the C
reasons be recorded in the case diary immediately after the
arrest is made without loss of any time so that the court has an
opportunity to properly consider the case for grant or refusal of
bail in the light of reasons recorded by the arresting officer.
119. Exercise of jurisdiction under Section 438 CrPC is an D
extremely important judicial function of a Judge and must
be entrusted to judicial officers with some experience and
good track record. Both the individual and society have vital
interest in orders passed by the courts in anticipatory bail
applications. E
120. It is imperative for the High Courts through its judicial
academies to periodically organise workshops, symposiums,
seminars and lectures by the experts to sensitise judicial
officers, police officers and investigating officers so that
they can properly comprehend the importance of personal
liberty vis-à-vis social interests. They must learn to maintain F
fine balance between the personal liberty and the social interests”
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. G
Further consideration of potential impact of working of Atrocities
Act on spreading casteism
42. In the light of submissions made, it is necessary to express
concern that working of the Atrocities Act should not result in perpetuating
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930 SUPREME COURT REPORTS [2018] 4 S.C.R.

A casteism which can have an adverse impact on integration of the society
and the constitutional values. Such concern has also been expressed by
this Court on several occasions. Secularism is a basic feature of the
Constitution. Irrespective of caste or religion, the Constitution guarantees
equality in its preamble as well as other provisions including Articles 14-
16. The Constitution envisages a cohesive, unified and casteless society.
B
43. Dr. B. R. Ambedkar, in his famous speech on 25th November,
1949, on conclusion of deliberations of the Constituent Assembly, stated:
“These principles of liberty, equality and fraternity are not
to be treated as separate items in a trinity. They form a union
C of trinity in the sense that to divorce one from the other is to
defeat the very purpose of democracy. Liberty cannot be
divorced from equality, equality cannot be divorced from
liberty. Nor can liberty and equality be divorced from
fraternity. Without equality, liberty would produce the
supremacy of the few over the many. Equality without liberty
D would kill individual initiative. Without fraternity, liberty and
equality could not become a natural course of things. It would
require a constable to enforce them. …. …
… … … … … …

E In India there are castes. The castes are anti-national. In the
first place because they bring about separation in social
life. They are anti-national also because they generate
jealousy and antipathy between caste and caste. But we must
overcome all these difficulties if we wish to become a nation
in reality. For fraternity can be a fact only when there is a
F nation. Without fraternity, equality and liberty will be no
deeper than coats of paint.”
44. In Indra Sawhney and Ors versus Union of India and
Ors.51 this Court observed:
“339. Secularism is the basic feature of the Indian
G
Constitution. It envisages a cohesive, unified and casteless
society. The Constitution has completely obliterated the caste
system and has assured equality before law. Reference to
caste under Articles 15(2) and 16(2) is only to obliterate it.
51
H 1992 Supp(3) SCC 217
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 931
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

The prohibition on the ground of caste is total, the mandate A
is that never again in this country caste shall raise its head.
Even access to shops on the ground of caste is prohibited.
The progress of India has been from casteism to
egalitarianism — from feudalism to freedom.
340. The caste system which has been put in the grave by B
the framers of the Constitution is trying to raise its ugly head
in various forms. Caste poses a serious threat to the
secularism and as a consequence to the integrity of the
country. Those who do not learn from the events of history
are doomed to suffer again. It is, therefore, of utmost
importance for the people of India to adhere in letter and C
spirit to the Constitution which has moulded this country
into a sovereign, socialist, secular democratic republic and
has promised to secure to all its citizens justice, social,
economic and political, equality of status and of
opportunity.” D
45. In the Report of the National Commission to Review the
Working of the Constitution one of the failures of the working of the
Constitution noted was that the elections continued to be fought on caste
lines. The said observations have been quoted in People’s Union for
Civil Liberties (PUCL) and Anr. Etc. versus Union of India and E
Anr.52 as follows:
“20. It is to be stated that similar views are expressed in the
Report submitted in March 2002 by the National Commission
to Review the Working of the Constitution appointed by the
Union Government for reviewing the working of the F
Constitution. Relevant recommendations are as under:
“Successes and failures
4.4. During the last half-a-century, there have been
thirteen general elections to the Lok Sabha and a much
large number to various State Legislative Assemblies. We G
can take legitimate pride in that these have been successful
and generally acknowledged to be free and fair. But, the
experience has also brought to the fore many distortions,

52
(2003)4 SCC 399
H
932 SUPREME COURT REPORTS [2018] 4 S.C.R.

A some very serious, generating a deep concern in many
quarters. There are constant references to the unhealthy
role of money power, muscle power and mafia power and
to criminalisation, corruption, communalism and
casteism.”
B 46. The speech of the then Prime Minister Shri Atal Behari
Vajpayee on this aspect was also noted in para 48 of the above judgment
which is as follows:
“Mr Divan in course of his arguments, had raised some
submissions on the subject — ‘Criminalisation of Politics’
C and participation of criminals in the electoral process as
candidates and in that connection, he had brought to our
notice the order of the Election Commission of India dated
28-8-1997. … — ‘Whither Accountability’, published in The
Pioneer, Shri Atal Behari Vajpayee had called for a national
debate on all the possible alternatives for systematic changes
D to cleanse our democratic governing system of its present
mess. He has expressed his dissatisfaction that neither
Parliament nor the State Vidhan Sabhas are doing, with any
degree of competence or commitment, what they are primarily
meant to do: legislative function. According to him, barring
E exceptions, those who get elected to these democratic
institutions are neither trained, formally or informally, in
law-making nor do they seem to have an inclination to
develop the necessary knowledge and competence in their
profession. He has further indicated that those individuals
in society who are generally interested in serving the
F electorate and performing legislative functions are finding
it increasingly difficult to succeed in today’s electoral system
and the electoral system has been almost totally subverted
by money power, muscle power, and vote bank considerations
of castes and communities. Shri Vajpayee also had indicated
G that the corruption in the governing structures has, therefore,
corroded the very core of elective democracy. According to
him, the certainty of scope of corruption in the governing
structure has heightened opportunism and unscrupulousness
among political parties, causing them to marry and divorce
one another at will, seek opportunistic alliances and
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 933
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

coalitions often without the popular mandate. Yet they capture A
and survive in power due to inherent systematic flows. He
further stated that casteism, corruption and politicisation
have eroded the integrity and efficacy of our civil service
structure also. The manifestos, policies, programmes of the
political parties have lost meaning in the present system of
B
governance due to lack of accountability.”
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.
C
Issue of anticipatory bail
48. In the light of the above, we first consider the question whether
there is an absolute bar to the grant of anticipatory bail in which case the
contention for revisiting the validity of the said provision may need
consideration in the light of decisions of this Court relied upon by learned D
amicus.
49. Section 18 of the Atrocities Act containing bar against grant
of anticipatory bail is as follows:
“Section 438 of the Code not to apply to persons committing
an offence under the Act. – Nothing in Section 438 of the E
Code shall apply in relation to any case involving the arrest
of any person on an accusation of having committed an
offence under this Act.”
50. In Balothia (supra), Section 18 was held not to be violative
of Articles 14 and 21 of the Constitution. It was observed that exclusion F
of Section 438 Cr.P.C. in connection with offences under the Act had to
be viewed in the context of prevailing social conditions and the
apprehension that perpetrators of such atrocities are likely to threaten
and intimidate the victims and prevent or obstruct them in the prosecution
of these offenders, if they are granted anticipatory bail. Referring to the
G
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. They assert their rights
and demand statutory protection. Vested interests try to cow them down
and terrorise them. There was increase in disturbing trend of commission
of atrocities against members of SC and ST. Thus, the persons who are H
934 SUPREME COURT REPORTS [2018] 4 S.C.R.

A alleged to have committed such offences can misuse their liberty, if
anticipatory bail is granted. They can terrorise the victims and prevent
investigation.
51. Though we find merit in the submission of learned amicus
that judgment of this Court in Ram Krishna Balothia (supra) may
B 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
C 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
D applied to genuine cases and not to false ones. This will help in achieving
the object of the law.
52. If the provisions of the Act are compared as against certain
other enactments where similar restrictions are put on consideration of
matter for grant of anticipatory bail or grant of regular bail, an interesting
E situation emerges. Section 17(4) of the Terrorist and Disruptive Activities
(Prevention) Act, 1985 (“TADA” for short - since repealed) stated
“…nothing in Section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of having committed
an offence punishable under the provisions of this Act…”. Section 17(5)
of the TADA Act put further restriction on a person accused of an
F offence punishable under the TADA Act being released on regular bail
and one of the conditions was: Where the Public Prosecutor opposes
the application for grant of bail, the court had to be satisfied that there
were reasonable grounds for believing that the accused was not guilty
of such offence and that he was not likely to commit any such offence
G while on bail. The provisions of the Unlawful Activities (Prevention)
Act, 1967 (for short “the UAPA Act”), namely under Section 43D(4)
and 43D(5) are similar to the aforesaid Sections 17(4) and 17(5) of the
TADA Act. Similarly the provisions of Maharashtra Control of Organised
Crime Act, 1999 (for short “MCOC Act”), namely, Sections 21(3) and
21(4) are also identical in terms. Thus the impact of release of a person
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 935
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

accused of having committed the concerned offences under these special A
enactments was dealt with by the Legislature not only at the stage of
consideration of the matter for anticipatory bail but even after the arrest
at the stage of grant of regular bail as well. The provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS
Act) are, however, distinct in that the restriction under Section 37 is at a
B
stage where the matter is considered for grant of regular bail. No such
restriction is thought of and put in place at the stage of consideration of
matter for grant of anticipatory bail. On the other hand, the provisions
of the Act are diametrically opposite and the restriction in Section 18 is
only at the stage of consideration of matter for anticipatory bail and no
such restriction is available while the matter is to be considered for grant C
of regular bail. 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
D
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.
53. We have no quarrel with the proposition laid down in the said E
judgment that persons committing offences under the Atrocities Act ought
not to be granted anticipatory bail in the same manner in which the
anticipatory bail is granted in other cases punishable with similar sentence.
Still, the question remains whether in cases where there is no prima
facie case under the Act, bar under Section 18 operates can be F
considered. 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 G
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
H
936 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B out inspite of validity of Section 18 of the Atrocities Act being upheld.
55. In Hema Mishra versus State of U.P.53, it has been expressly
laid down that inspite of the statutory bar against grant of anticipatory
bail, a Constitutional Court is not debarred from exercising its jurisdiction
to grant relief. This Court considered the issue of anticipatory bail where
C such provision does not apply. Reference was made to the view in Lal
Kamlendra Pratap Singh versus State of Uttar Pradesh and Ors.54
to the effect that interim bail can be granted even in such cases without
accused being actually arrested. Reference was also made to Kartar
Singh versus State of Punjab55 to the effect that jurisdiction under
Article 226 is not barred even in such cases.
D
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
E liberty of citizen must be read consistent with the concept of fairness
and reasonableness.
57. A Constitution Bench of this Court in Kedar Nath versus
State of Bihar56 observed:

F “26. It is also well settled that in interpreting an enactment
the Court should have regard not merely to the literal
meaning of the words used, but also take into consideration
the antecedent history of the legislation, its purpose and the
mischief it seeks to suppress [vide (1) Bengal Immunity
Company Limited v. State of Bihar [1955 2 SCR 603] and
G (2) R.M.D. Chamarbaugwala v. Union of India[1957 SCR
930]. Viewed in that light, we have no hesitation in so
53
(2014) 4 SCC 453 – paras 21, 34 to 36
54
(2009) 4 SCC 437
55
(1994) 3 SCC 569 – para 368 (17)
56
H AIR 1962 SC 955 : 1962 Supp (2) SCR 769
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 937
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

construing the provisions of the sections impugned in these A
cases as to limit their application to acts involving intention
or tendency to create disorder, or disturbance of law and
order, or incitement to violence.
27. We may also consider the legal position, as it should
emerge, assuming that the main Section 124-A is capable of B
being construed in the literal sense in which the Judicial
Committee of the Privy Council has construed it in the cases
referred to above. On that assumption, is it not open to this
Court to construe the section in such a way as to avoid the
alleged unconstitutionality by limiting the application of the
section in the way in which the Federal Court intended to C
apply it? In our opinion, there are decisions of this Court
which amply justify our taking that view of the legal position.
This Court, in the case of R.M.D. Chamarbaugwalla v. Union
of India has examined in detail the several decisions of this
Court, as also of the courts in America and Australia. After D
examining those decisions, this Court came to the conclusion
that if the impugned provisions of a law come within the
constitutional powers of the legislature by adopting one view
of the words of the impugned section or Act, the Court will
take that view of the matter and limit its application
accordingly, in preference to the view which would make it E
unconstitutional on another view of the interpretation of the
words in question. In that case, the Court had to choose
between a definition of the expression “Prize Competitions”
as limited to those competitions which were of a gambling
character and those which were not. The Court chose the F
former interpretation which made the rest of the provisions
of the Act, Prize Competitions Act (42 of 1955), with
particular reference to Sections 4 and 5 of the Act and Rules
11 and 12 framed thereunder, valid. The Court held that the
penalty attached only to those competitions which involved
the element of gambling and those competitions in which G
success depended to a substantial degree on skill were held
to be out of the purview of the Act. The ratio decidendi in
that case, in our opinion, applied to the case in hand insofar
as we propose to limit its operation only to such activities as
come within the ambit of the observations of the Federal H
938 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Court, that is to say, activities involving incitement to violence
or intention or tendency to create public disorder or cause
disturbance of public peace.”
58. In the present context, wisdom of legislature in creating an
offence cannot be questioned but individual justice is a judicial function
B 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.
C 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
D 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.
E 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.
F
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.
G
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. The said question was answered
as follows:
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 939
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

“4. Now undoubtedly it is true that the alleged offence under A
the Atrocities Act is a very serious offence and if indeed the
complaint is ultimately found to be truthful and genuine one,
there cannot be any two views about the strictest possible
view taken in such matter. Not only that but if the complaint
is also found to be prima facie dependable one that is to
B
say, free from doubt, then as a warranted under Section 18
of the Atrocities Act, even the anticipatory bail to such
accused has got to be refused. In fact, the Parliament in its
utmost wisdom has rightly evidenced great concern and
anxiety over the atrocities which are going on unabatedly
on S.Cs. & S.Ts. by inserting the provisions under Section C
18 of the Atrocities Act disabling the accused from obtaining
the anticipatory bail under Section 438 of the Code. This
indeed is a welcome step and in accordance with the
axiomatic truth, viz., ‘the disease grown desperately must
be treated desperately else not’. The disease of commission
D
of offences by way of atrocities against the members of S.Cs.
and S.Ts. are unabatedly going on since last hundreds of
years and in the recent past have become alarmingly
increasing and has become so rampant, breath taking and
has reached such a desperate pass that it indeed needed a
very stringent and desperate legislation which could help E
save the situation by effectively providing the legal protection
to such cursed, crushed and downtrodden members of S.Cs.
& S.Ts. communities. Under such circumstances, it is equally
the paramount duty of every Court to see that it responds to
legislative concern and call and ensure effective
F
implementation of the Atrocities Act, by seeing that the
provisions enshrined in the said Act are duly complied with.
But then, what according to this Court is the most welcome
step by way of collective wisdom of the Parliament in
ushering social beneficial legislation cannot be permitted to
be abused and converted into an instrument to blackmail to G
wreak some personal vengeance for settling and scoring
personal vendetta or by way of some counter-blasts against
opponents some public servants, as prima facie appears to
have been done in the present case. The basic questions in
such circumstances therefore are-Whether a torch which is
H
940 SUPREME COURT REPORTS [2018] 4 S.C.R.

A lighted to dispel the darkness can it be permitted to set on
fire the innocent surroundings? Whether a knife an
instrument which is meant for saving human life by using
the same in the course of operation by a surgeon, can it be
permitted to be used in taking the life of some innocent? The
very same fundamental question arises in the facts and
B
circumstances of this case also, viz., ‘whether any statute
like the present Atrocities Act, especially enacted for the
purposes of protecting weaker sections of the society hailing
from S.C. & S.T. communities can be permitted to be abused
by conveniently converting the same into a weapon of
C wrecking personal vengeance on the opponents?’ The
answer to this question is undoubtedly and obviously ‘No’.
Under such circumstances, if the Courts are to apply such
provision of Section 18 of the Atrocities Act quite
mechanically and blindly merely guided by some general
and popular prejudices based on some words and tricky
D
accusations in the complaint on mere assumptions without
intelligently scrutinising and testing the probabilities,
truthfulness, genuineness and otherwise dependability of the
accusations in the complaint etc., then it would be simply
unwittingly and credulously playing in the hands of some
E scheming unscrupulous complainant in denying the justice.
Virtually, it would be tentamount to abdicating and relegating
its judicial duty, fanction of doing justice in such matters in
favour and hands of such unscrupulous complainant by
making him a Judge in his own cause. This is simply
unthinkable and therefore impermissible. Whether the
F
provisions of any particular Act and for that purpose the
rules made thereunder are applicable to the facts of a
particular case or not, is always and unquestionably a matter
which lies strictly and exclusively within the domain of
‘judicial consideration-discretion’ and therefore neither mere
G allegations made in the complainant by themselves nor bare
denials by the accused can either automatically vest or divest
the Court from discharging its ultimate judicial function-
duty to closely scrutinise and test the prima facie
dependability of the allegations made in the complaint and
reach its own decision.
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 941
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

5. Now reverting to the contents of the complaint and A
attending circumstances high lighted by Mr. Pardiwala, the
learned Advocate for the petitioner-accused, the same prima
facie clearly demonstrates that at this stage the story revealed
by the complainant docs not appear to be free from doubt. If
that is so, very applicability of the Atrocities Act is rendered
B
doubtful. If that is the situation, then to refuse the
anticipatory bail on mere accusations and assumptions that
the petitioner-accused has committed an offence under the
Atrocities Act would be absolutely illegal, unjudicious, unjust
and ultimately a travesty of justice. No Court can ever embark
upon such hazards of refusing anticipatory bail on mere C
doubtful accusations and assumptions that Atrocities Act is
applicable. No Court could and should be permitted to bo
‘spoon-fed’ by the complainant whatever he wants to feed
and swallow whatever he wants the Court to gulp down to
attain and secure his unjust mala fide motivated ends. Section
D
18 of the Atrocities Act gives a vision, direction and mandate
to the Court as to the cases where the anticipatory bail must
be refused, but it does not and it certainly cannot whisk away
the right of any Court to have a prima facie judicial scrutiny
of the allegations made in the complaint. Nor can it under
its hunch permit provisions of law being abused to suit the E
mala fide motivated ends of some unscrupulous complainant.
In this case also if indeed this Court been satisfied with the
story revealed by the complainant as truthful and genuine,
then anticipatory bail would have been surely rejected right
forth as a matter of course, but since the submissions of Mr.
F
Pardiwala have considerable force, this Court has no
alternative but to accept the same in the larger interests of
justice to see that merely on the count of the firsthand
prejudice attempted to be caused by allegations in the
complaint, the petitioner-accused is not denied his precious
right of the anticipatory bail. G
6. In view of the aforesaid discussion, though in a way the
learned A.P.P. is absolutely right when he submitted that no
anticipatory bail can be granted to the petitioner-accused
because of Section 18 of the Atrocities Act, in the opinion of
this Court, his submission fails because at this stage it is too H
942 SUPREME COURT REPORTS [2018] 4 S.C.R.

A difficult to rule out the probability of the accusations levelled
by the complainant against the petitioner-accused having
committed an offence under the Atrocities Act being false,
vexatious and by way of counterblast as stemming from the
ulterior motive to humiliate, disgrace and demoralise the
petitioner-accused who is a public servant. When that is the
B
result and position, there is no question of bypassing of
Section 18 of the Atrocities Act arises as apprehended by the
learned A.P.P. Taking into consideration the facts and
circumstances of this particular case, and in view of the
aforesaid discussion, this Misc. Criminal Application for
C anticipatory bail deserves to be allowed and is allowed
accordingly”
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
D 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. It was observed;-
“8. To deal first with the preliminary objection raised by the
learned A.P.P. Mr. Desai, it may be stated that the Supreme
E Court’s decision rendered in the case of State of M.P. & Anr.
v. Ramkishan Balothia (supra) stands on altogether quite
different footing where the vires of Section 18 of the Act
came to be decided. The Apex Court has ultimately held
that Section 18 of the Act was not ultra vires. This Court is
indeed in respectful agreement with the aforesaid decision
F of the Supreme Court ….. ….. …..
….. ….. ….. .....
But then having closely examined the complaint more
particularly in the context and light of the backdrop of the
G peculiar facts situation highlighted by the petitioner leading
ultimately to filing of the complaint, this Court prime facie
at the very outset is at some doubt about the complainant’s
story and yet if it readily, mechanically like a gullible child
accepts the allegations made in the complaint at its face
value, it would be surely blundering and wandering away
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 943
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

from the path of bail-justice, making itself readily available A
in the hands of the scheming complainant who on mere
asking will get arrested accused on some false allegations
of having committed non-bailable offence, under the Atrocity
Act, meaning thereby the Court rendering itself quite deaf,
dumb and blind mortgaging its commonsense, ordinary
B
prudence with no perception for justice, denying the rightful
protection to the accused becoming ready pawn pliable in
the hands of sometime scheming, unscrupulous complainants
!!! This sort of a surrender to prima facie doubtful allegation
in the complaint is not at all a judicial approach, if not
unjudicial !!...” C
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 D
Division Bench of the said High Court in Pravinchandra N Solanki
and Ors. versus State of Gujarat57. We are unable to accept the said
view for the reasons already given and overrule the same.
64. Concept of “Due process” and principles of 8th Amendment
of the U.S. Constitution have been read by this Court as part of guarantee E
under Article 21 of the Constitution. In State of Punjab versus Dalbir
Singh58, it was observed :
“80. It has already been noted hereinabove that in our
Constitution the concept of “due process” was incorporated
in view of the judgment of this Court in Maneka F
Gandhi[(1978) 1 SCC 248] The principles of the Eighth
Amendment have also been incorporated in our laws. This
has been acknowledged by the Constitution Bench of this
Court in Sunil Batra [(1978) 4 SCC 494] In Sunil Batra
case, SCC para 52 at p. 518 of the Report, Krishna Iyer, J.
speaking for the Bench held as follows: G
“52. True, our Constitution has no ‘due process’ clause or
the Eighth Amendment; but, in this branch of law, after
57
(2012)1 GLR 499
58
(2012) 3 SCC 346
H
944 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Cooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC
248] and Maneka Gandhi the consequence is the same. For
what is punitively outrageous, scandalisingly unusual or
cruel and rehabilitatively counterproductive, is unarguably
unreasonable and arbitrary and is shot down by Articles 14
and 19 and if inflicted with procedural unfairness, falls foul
B
of Article 21.”
xxx xxxx xxxx
84. The principle of “due process” is an emanation from the
Magna Carta doctrine. This was accepted in American
C jurisprudence (see Munn v. Illinois [24 L Ed77], L Ed p. 90
: US p. 142). Again this was acknowledged in Planned
Parenthood of Southeastern Pennsylvania v. Casey [120 L
Ed 2d 674] wherein the American Supreme Court observed
as follows:
D “The guarantees of due process, though having their roots
in Magna Carta’s ‘per legem terrae’ and considered as
procedural safeguards ‘against executive usurpation and
tyranny’, have in this country ‘become bulwarks also
against arbitrary legislation’.”

E 85. All these concepts of “due process” and the concept of
a just, fair and reasonable law have been read by this Court
into the guarantee under Articles 14 and 21 of the
Constitution….”
65. Presumption of innocence is a human right. No doubt, placing
F 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 Punjab59, it was observed:
“33. Presumption of innocence is a human right as envisaged
under Article 14(2) of the International Covenant on Civil
G
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
59
H (2008) 16 SCC 417
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 945
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

(which, of course, must be read in the light of the A
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 facts and burden of B
proof, to a certain extent, can be placed on an accused. It
must be construed having regard to the other international
conventions and having regard to the fact that it has been
held to be constitutional. Thus, a statute may be
constitutional but a prosecution thereunder may not be held C
to be one. Indisputably, civil liberties and rights of citizens
must be upheld.
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 D
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. E
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 F
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
G
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).
H
946 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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
H instances of abuse of the Act by vested interests against political
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 947
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

opponents in Panchayat, Municipal or other elections, to settle private A
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’61.
B
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 C
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 D
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 E
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. F

69. In Lal Kamlendra Pratap(supra), this Court held that even
if there is no provision for anticipatory bail, the Court can grant interim
bail in suitable cases. It was observed :
“6. Learned counsel for the appellant apprehends that the G
appellant will be arrested as there is no provision for
anticipatory bail in the State of U.P. He placed reliance on a
decision of the Allahabad High Court in Amarawati v. State
60
Dhiren Praful bhai (supra)
61
Sharad (supra) H
948 SUPREME COURT REPORTS [2018] 4 S.C.R.

A of U.P. [2005 Crl LJ 755 (All)] in which a seven-Judge Full
Bench of the Allahabad High Court held that the court, if it
deems fit in the facts and circumstances of the case, may
grant interim bail pending final disposal of the bail
application. The Full Bench also observed that arrest is not
a must whenever an FIR of a cognizable offence is lodged.
B
The Full Bench placed reliance on the decision of this Court
in Joginder Kumar v. State of U.P.[(1992) 4 SCC 260]
7. We fully agree with the view of the High Court in
Amarawati case and we direct that the said decision be
followed by all courts in U.P. in letter and spirit, particularly
C since the provision for anticipatory bail does not exist in
U.P.
8. In appropriate cases interim bail should be granted
pending disposal of the final bail application, since arrest
and detention of a person can cause irreparable loss to a
D person’s reputation, as held by this Court in Joginder Kumar
case. Also, arrest is not a must in all cases of cognizable
offences, and in deciding whether to arrest or not the police
officer must be guided and act according to the principles
laid down in Joginder Kumar case.”
E 70. In Vikas Pandurang case (supra), it was observed :
“10. …..When an offence is registered against a person
under the provisions of the SC/ST Act, no court shall entertain
an application for anticipatory bail, unless it prima facie
finds that such an offence is not made out.”
F
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.
G
72. In Dadu alias Tulsidas versus State of Maharashtra62
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
62
H (2000) 8 SCC 437
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 949
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

the sentence during the pendency of the appeal. This is an essential A
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, B
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, C
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 D
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.”
E
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 F
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 G
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. H
950 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Issue of safeguards against arrest and false implications
75. We may now deal with the issue as to what directions, if any,
are necessary, apart from clarifying the legal position with regard to
anticipatory bail. The under privileged need to be protected against any
atrocities to give effect to the Constitutional ideals. The Atrocities Act
B has been enacted with this objective. At the same time, the said Act
cannot be converted into a charter for exploitation or oppression by any
unscrupulous person or by police for extraneous reasons against other
citizens as has been found on several occasions in decisions referred to
above. Any harassment of an innocent citizen, irrespective of caste or
religion, is against the guarantee of the Constitution. This Court must
C enforce such a guarantee. Law should not result in caste hatred. The
preamble to the Constitution, which is the guiding star for interpretation,
incorporates the values of liberty, equality and fraternity.
76. We are satisfied, in the light of statistics already referred as
well as cited decisions and observations of the Standing Committee of
D Parliament that there is need to safeguard innocent citizens against false
implication and unnecessary arrest for which there is no sanction under
the law which is against the constitutional guarantee and law of arrest
laid down by this Court.
77. We are conscious that normal rule is to register FIR if any
E information discloses commission of a cognizable offence. There are
however, exceptions to this rule. In Lalita Kumari versus State of
U.P.63, it was observed :
“115. Although, we, in unequivocal terms, hold that Section
154 of the Code postulates the mandatory registration of
F FIRs on receipt of all cognizable offences, yet, 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. One such instance is in the case of
allegations relating to medical negligence on the part of
G doctors. It will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in
the complaint.
xxxx xxxx xxxx

63
(2014) 2 SCC 1
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 951
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

117. In the context of offences relating to corruption, this A
Court in P. Sirajuddin [(1970) 1 SCC 595] expressed the
need for a preliminary inquiry before proceeding against
public servants.
xxxx xxxx xxxx
120.6. As to what type and in which cases preliminary inquiry B
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
C
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
D
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.
E
120.7. While ensuring and protecting the rights of the accused
and the complainant, a preliminary inquiry should be made
time-bound and in any case it should not exceed 7 days.
The fact of such delay and the causes of it must be reflected
in the General Diary entry.”
F
78. The above view is consistent with earlier judgments in State
of U.P. versus Bhagwant Kishore Joshi64 and P. Sirajuddin versus
State of Madras65. In Bhagwant Kishore it was observed:
“… … …In the absence of any prohibition in the Code,
express or implied, I am of opinion that it is open to a Police G
Officer to make preliminary enquiries before registering an
offence and making a full scale investigation into it. No
doubt, Section 5A of the Prevention of Corruption Act was
64
AIR 1964 SC 221 = 1964(3) SCR 221
65
(1970) 1 SCC 595 H
952 SUPREME COURT REPORTS [2018] 4 S.C.R.

A enacted for preventing harassment to a Government servant
and with this object in view investigation, except with the
previous permission of a Magistrate, is not permitted to be
made by an officer below the rank of a Deputy
Superintendent of Police. Where however, a Police Officer
makes some preliminary enquiries, does not arrest or even
B
question an accused or question any witnesses but merely
makes a few discreet enquiries or looks at some documents
without making any notes, it is difficult to visualize how any
possible harassment or even embarrassment would result
therefrom to the suspect or the accused person. … …”
C In Sirajuddin (supra) it was observed:
“17. … …Before a public servant, whatever be his status, is
publicly charged with acts of dishonesty which amount to
serious misdemeanour or misconduct of the type alleged in
this case and a first information is lodged against him, there
D must be some suitable preliminary enquiry into the allegations
by a responsible officer. The lodging of such a report against
a person, specially one who like the appellant occupied the
top position in a department, even if baseless, would do
incalculable harm not only to the officer in particular but to
E the department he belonged to, in general. If the Government
had set up a Vigilance and Anti-Corruption Department as
was done in the State of Madras and the said department
was entrusted with enquiries of this kind, no exception can
of taken to an enquiry by officers of this department but
any such enquiry must proceed in a fair and reasonable
F manner. … …”
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).
G
80. Even if preliminary inquiry is held and case is registered, arrest
is not a must as we have already noted. In Lalita Kumari (supra) it
was observed:
“107. While registration of FIR is mandatory, arrest of the
accused immediately on registration of FIR is not at all
H
DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF 953
MAHARASHTRA AND ANR. [ADARSH KUMAR GOEL, J.]

mandatory. In fact, registration of FIR and arrest of an A
accused person are two entirely different concepts under
the law, and there are several safeguards available against
arrest. Moreover, it is also pertinent to mention that an
accused person also has a right to apply for “anticipatory
bail” under the provisions of Section 438 of the Code if the
B
conditions mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest under that
provision by obtaining an order from the court.”
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, C
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 D
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.
E
Consideration of present case
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.
Conclusions F
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 G
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
H
954 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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-
B 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
C 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
D way of disciplinary action as well as contempt.
The above directions are prospective.
84. Before parting with the judgment, we place on record our
sincere appreciation for the invaluable assistance rendered by learned
Amicus and also assistance rendered by learned counsel who have
E appeared in this case.
The appeal is accordingly allowed in the above terms.

Divya Pandey Appeal allowed.
F

G

H