Case Analysis: Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454.

Author: Shrishti Verma.

CITATION

(2018) 6 SCC 454.

NAMES OF PARTIES

Appellant: Dr. Subhash Kashinath Mahajan;
Respondent: State of Maharashtra, Bhaskar Karbhari Gaikwad.

JUDGES

Justice Adarsh Kumar Goel;
Justice Uday U. Lalit.

INTRODUCTION

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 was passed with the objective of protect the interest of the oppressed community and prevent discrimination against the weaker sections of the society. In the present case under consideration, the Supreme Court attempted to dilute the provisions of the Act which was met with criticism from the masses. The Supreme Court, later, in a review petition filed by the Union Government, reversed this decision, however, this decision still remains an important landmark considering the abuse of the provisions of the Act, to prevent which this judgment was passed.

FACTS

The facts leading to the present appeal are as follows.

• Bhaskar Karbhari Gaikwad, the complainant, was an employee of the Department of the College of Pharmacy. His seniors, Dr. Satish Bhise and Dr. Kishor Burade made some adverse remarks in his Annual Confidential Report.
• Both of the seniors were non-scheduled caste, while the complainant was a member of a scheduled caste. The adverse entry suggested that his integrity and character were not good.
• Aggrieved by this, the complainant lodged an FIR with the Karad Police, however since the above two persons were Class-I officers, the investigating officer applied for a sanction under S. 197 of the CrPC.
• This sanction was refused by the appellant, Dr. Mahajan.
• The complainant then lodged an FIR against the appellant contending that he was not the competent authority to grant or refuse a sanction and only the State Government could do so.
• The High Court of Bombay refused to quash this complaint against the appellant due to which this appeal has been preferred.

ISSUES

1. Whether a unilateral allegation of mala fide can be a ground for prosecution of an officer who acted in official capacity to deal with the matter?
2. Whether directions can be issued to protect fundamental right under Article 21 against uncalled for implications and arrests?
3. Whether there is an absolute bar to the grant of anticipatory bail as envisaged in the provision of Section 18 of the Atrocities Act?

JUDGMENT

The court answered the first question in negative observing that there should be procedural safeguards for prosecution under the Act on the basis of unilateral allegation. Moreover, there cannot be a complete bar on the provision of anticipatory bail because this would lead to abuse of the process of the court.

Even if there is no provision for anticipatory bail in the statute, the court may still grant interim bail depending upon the circumstances in each case. The court also formulated guidelines for conducting preliminary enquiry in cases where arrest was to be made.

Submissions of the learned Amicus:

The learned Amicus noted that the FIR was lodged five years after the order was passed by the Appellant. It was observed that 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 Penal Code. He submitted a table to elaborate his point, explaining that denying sanction cannot amount to false or frivolous information, or disappearance of evidence, so Section 3 cannot be attracted. Similarly, it cannot fall under the provisions of the IPC providing false information, fabricating false evidence, or making a corrupt report. Thus, the High Court ought to have quashed the proceedings in light of this.

He added that one sided version before a trial cannot displace the presumption of innocence. There needs to be a just and fair procedure before taking away the liberty of a person. Reference to section 41(1)(b) of the CrPC was made, where it was said that the police must have a reason to believe and there should be credible information. The arrest should be made only after complying with the safeguards under sections 41 and 41-A of the CrPC. He submitted that a preliminary enquiry should be a must to prevent the exercise of arbitrary power of arrest. Where there is an arrest to be made, and the approval of the appointing authority must be taken if the arrest is in relation to a public servant, whereas in cases of non-public servants, approval of the Senior Superintendent of Police must be taken.

He observed that Section 18 of the Act excludes Section 438 CrPC, and is violative of Articles 14 and 21 of the Constitution. Reliance was placed on Gurbaksh Singh Sibbia v. State of Punjab. Taking away the grant of anticipatory bail is discriminatory and violative of Article 14. The test of reasonableness and fairness is implicit under Article 21.

Submissions of the Learned counsel for intervener supporting the appeal

Placing reliance on the Sixth Report of the Standing Committee of Social Justice and Empowerment, the counsel said that the Act should include provisions for securing justice to those who are falsely implicated within it. Safeguards like preliminary inquiry and sanction of the Magistrate were suggested by the counsel for the intervener. Emphasis was laid on the judgment in NT Desai v State of Gujarat stating that the court cannot be a mere spectator to the liberty of a person being surrendered to a malicious complaint.

Even an accused of a heinous crime like murder, dacoity, or rape etc. can pray for anticipatory bail pleading that he is falsely implicated, but not a person under the Atrocities Act because of the bar of Section 18. Numerous judgments were supplied as illustrations to show how the abuse of law was rampant. To balance the societal interest with the rights of victims of false allegations, it was suggested that there should be the formation of an internal committee in every department where a complaint should be lodged in these matters with supporting evidence. Such committee may be vested with the power of conducting preliminary enquiry into the matter.

Because of the provision of monetary incentive being provided under S. 12(4) of the Act for lodging a case, the Act becomes more prone to abuse because individuals might lodge complaints only for the monetary incentive. The counsel also relied on NCRB data how numerous false cases were found to be filed.

Interventions against the appellant

The counsel appearing for intervener pointed that the atrocities against SC/ST continue to happen because of 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.

Submissions of the learned Additional Solicitor General

The National Crime Records Bureau data was again cited alleging misuse of the provisions of the Act. He also pointed out how anticipatory bail has been granted in genuine cases where no prima facie case was made out.

Observations of the Court

The court is the ultimate interpreter of the Constitution. Article 14, 19, and 21 form the basis of the rule of law. Rights under Article 14 and 21 must be protected from unreasonable procedure even if the procedure is laid down by the Legislature. Any violation or abrogation of these rights can be nullified by the court. The expression “procedure established by law” under Article 21 implies just, fair, and reasonable procedure.

The court cannot be expected to be a mere bystander to the violation of fundamental rights. The role of the court may sometimes be perceived as legislative in nature when it issues directions to enforce fundamental rights. It can issue directions when they are not in conflict with a valid statute. “The power to declare law carries with it, within the limits of duty, to make laws when none exists.” The court in various instances has issued directions for the enforcement of fundamental rights.

The court has been instrumental in issuance of directions for the regulation of power to arrest in numerous decisions including Joginder Kumar v. State of UP((Joginder Kumar v. State of UP 1994 4 SCC 260.)) (which expanded the horizon of human rights), Arnesh Kumar v. State of Bihar((Arnesh Kumar v. State of Bihar 2014 8 SCC 273.)) (which regulated the power to arrest, noting that “power of arrest is a lucrative source of corruption”), DK Basu v. State of West Bengal((DK Basu v. State of West Bengal 1997 1 SCC 416.)) (to check the abuse of arrest and drastic police power), Subramanian Swamy v. Union of India((Subramanian Swamy v. Union of India 2016 7 SCC 221.)) (to check the validity of the provisions creating defamation as an offence), Siddharam Satlingappa Mhetre v. State of Maharashtra((Siddharam Satlingappa Mhetre v. State of Maharashtra 2011 1 SCC 694.)) (where it laid down the parameters for exercise of discretion of anticipatory bail) and many more.

The Report of the National Commission to Review the Working of the Constitution, which was also quoted in PUCL v. Union of India((PUCL v. Union of India 2003 4 SCC 399.)) stated that one of the failures of the Constitution was that the elections continued to be fought on caste lines. The court then went on to conclude that the interpretation of the Atrocities Act should be to promote the constitutional values of fraternity and integration.

Regarding the issue of granting anticipatory bail, the court observed that in State of MP v. Ram Krishna Balothia((State of MP v. Ram Krishna Balothia 1995 3 SCC 221.)), Section 18 was held not to be violative of Articles 14 and 21 of the Constitution, and that the bar to anticipatory bail had to be viewed in the context of prevailing social conditions. If anticipatory bail is granted in such cases, the accused can terrorize the victim and prevent investigation. However, the court went on to note that the judgment in Balothia may need to be revisited in light of the Maneka Gandhi case, and that the exclusion of anticipatory bail should be applied to genuine cases and not false ones.

The court affirmed the contention of the ASG that there cannot be an absolute bar on the grant of anticipatory bail. Despite the statutory bar, a constitutional court is not debarred from grant relief. Hence, the exclusion of court’s jurisdiction is not to be read as absolute. A literal interpretation of the provision cannot be preferred since it would be misused to make a person surrender his civil rights on the basis of a mala fide allegation. Hence, a unilateral mala fide allegation cannot be used to deprive a person of his liberty. The exclusion can only apply where a clear prima facie case is made out. If the prima facie story of the complainant is found to be doubtful, the arrest would be unjudicial. The court overruled Pravinchandra N. Solanki v. State of Gujarat((Pravinchandra N. Solanki v. State of Gujarat 2011 SCC OnLine Guj 6848.)) which took a contrary view to the present interpretation.

The court emphasized due process. It observed that presumption of innocence is a human right. There can be no presumption of guilt to deprive a person of his liberty without opportunity to be heard. The court referred to Noor Aga v. State of Punjab((Noor Aga v. State of Punjab 2008 16 SCC 417.)) to hold that an accused is entitled to show to the court that the case of the complainant was motivated if he apprehends arrest. The court observed that the intent of the legislature was not to term innocent persons as accused. Because of rampant abuse of the provisions of the Act, false complaints are being filed for satisfaction of vested interests.

The court finally held that cases under the Atrocities Act fall under the exceptional category where preliminary inquiry must be held and should be done in a time-bound manner where it should not exceed seven days in line with Lalita Kumari v. State of UP((Lalita Kumari v. State of UP 2014 2 SCC 1.)). Moreover, even if a case is registered after preliminary inquiry, arrest is not a must.

ANALYSIS

When the matter was under consideration in the High Court, the court observed that a public servant administering his duties should not apprehend frivolous or false prosecution as it would jeopardize the administration, however, such prosecution cannot be quashed merely because it would lead to the abuse of the provisions of the Act. The quashing would send a wrong signal to the downtrodden and backward sections of the society.

The Supreme Court differed from this view. The difference was visible in the judgment which significantly diluted the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 in order to prevent its abuse. It observed that the abuse of the Act would prevent public servants from exercising their duties. They might have apprehension in mind which would prevent them from giving genuine remarks. This is the reason why in its judgment, the Supreme Court held that in order for an FIR to be lodged, there has to be a preliminary investigation and a prima facie case. Moreover, sanction from appointing authority or SSP will have to be taken as the case may be. However, the court failed to take into consideration the number of atrocities that still take place frequently against these sections of the society in the form of harassment, illegal land encroachments, forced evictions, etc.

“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”. The court relied on NCRB data to note how there are a high number of acquittals in cases filed under the provisions of this act. However, it failed to note that acquittals do not necessarily mean innocence. The main factor owing to acquittals may be poor investigation and incompetence of the prosecution.((Guha, Ayan, and Neha Chauhan. “Debate, Discourse and Dilemma: Putting Dr. Subhash Kashinath Mahajan vs State of Maharashtra in Context.” Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, vol. 51, no. 3, 2018, pp. 381–91. JSTOR, https://www.jstor.org/stable/26630274. Accessed 10 Sep. 2022.)) These guidelines do attempt to punish abuse of the process of the court. However, they are also a significant deterrent from filing genuine cases in a country where the upper castes already have an upper hand at resources. The court also failed to take into consideration the indifferent attitude of the Authorities because of which the provisions of the Act were not complied with properly. The power in the hands of the upper caste may prevent the administration from finding a prima facie case. The indifference of the police and the administration with respect to cases like these is not something new.

The Supreme Court itself in National Campaign on Dalit Human Rights v. Union of India((National Campaign on Dalit Human Rights v. Union of India 2017 2 SCC 432.)) noted that “there has been a failure on the part of the authorities concerned in complying with the provisions of the Act and the Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities”. Dalits have to struggle extra hard to get their complaints registered. Their complaints are routinely disregarded. And even when it is registered, many complainants and witnesses eventually turn hostile because of the political and economic power of the socially dominant. In light of all these findings, the contention of misuse of the provisions of the Act cannot stand.

The Central Government eventually filed a revision petition against the judgment. The revision petition was accepted and the Apex Court overturned the judgment in this case. The condemnation of the judgment was so severe that the Parliament did not wait for the review petition to be heard, instead, it passed the amendment to include Section 18A. Now, this section has been recognized by the Supreme Court. Through the amendment, the provision of bar on anticipatory bail was restored in order to undo the repercussions of the judgment. The amendment also mentioned that preliminary investigation is not a pre-requisite for an FIR. Furthermore, the investigating officer shall not require sanction or permission for making an arrest, and the provision of S. 438 CrPC will not apply to any case under the provision of this Act notwithstanding any court order or judgment.

Observing the present sorrow state of affairs of SCs and STs, the Supreme Court in its review judgment ‘Union of India v State of Maharashtra’, overturned the judgment in Subhash Kashinath Mahajan v State of Maharashtra. The Supreme Court relied on the premise that it cannot breach the solemn doctrine of separation of powers. Furthermore, there cannot be a presumption of abuse of the provisions of the Act. The caste of a person cannot be said to be the cause for lodging a false case. The members of SC and ST have been discriminated against for a very long period of time. Due safeguard against this has to be given to them and they cannot be placed at disadvantageous position because of the law. They hardly muster up courage to speak up against the atrocities committed against them by the upper caste. This is the sole reason why the beneficial provisions of the Act have been made by the way of the amendment.

CONCLUSION

The contention of the court that the provisions of the Act may be misused was the reason why the court made provisions for safeguard against false cases. But, the marginalised and downtrodden sections of the society are being discriminated against and oppressed to this day. For this reason, the court in its review petition overturned the judgment, and the Central Government However, the Supreme Court’s perspective cannot be dismissed altogether, for, the lack of economic resources and weaker social connections are the reason the Dalits face discrimination; but the ones having government jobs cannot be said to be absolutely lacking in resources. Thus, there needs to be a mechanism for improving the social justice system and providing immunity to those suffering from the complexities in the institution.

The Supreme Court noted “the Constitution envisages a cohesive, unified and casteless society” in the judgment. In September 2022, Justice DY Chandrachud in a lecture in IIT Delhi (2022) spoke about how we do not need to make a casteless society, but instead, one should come face to face with the discrimination that still pervades and permeates in our society, and find justice for those who are discriminated on the ground of caste.