C.R.M. 8302 of 2018

21st December, 2018.

Petitioner Counsel: Mr. AYAN BHATTACHARYA, Mr. SHIBASIS CHATTERJEE, Mr KARAN DAGHA, Mr. OZAIR ELAHI
Respondent Counsel: Mr. KAUSHIK CHANDA, A.S.G., Mr ANIRBAN MITRA, Mr. S. DATTA

Cases Cited:
Subhash Kashinath Mahajan Vs. State of Maharashtra, 2018 ALL MR (Cri) 1773 (S.C.)=2018 ALL SCR (Cri) 542 : (2018) 6 SCC 454 [Para 2]
State of Madhya Pradesh Vs. Ram Kishna Balothia, 1995 ALLMR ONLINE 384 : (1995) 3 SCC 221 [Para 10]
Vilas Pandurang Pawar Vs. State of Maharashtra, 2012 ALL MR (Cri) 3743 (S.C.)=(2012) 8 SCC 795 [Para 10]

JUDGMENT

SANJIB BANERJEE, J. :- In the light of the manner in which the larger legal issues raised here are proposed to be dealt with, the matter falls within a narrow compass. One of the charges against the petitioner seeking anticipatory bail is under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Despite the recent amendment to such Act of 1989 and the introduction of Section 18-A by such amendment with effect from August 20, 2018, the petitioner maintains that not only is the petition under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail maintainable, but the merits of the matter need also to be gone into as in any other case under such provision of the Code.

2. Section 18 of the said Act fell for consideration of the Supreme Court yet again in a recent judgment reported at (2018) 6 SCC 454 : [2018 ALL MR (Cri) 1773 (S.C.) : 2018 ALL SCR (Cri) 542] (Subhash Kashinath Mahajan v. State of Maharashtra) where, upon noticing several previous Supreme Court judgments on such provision, it was concluded as follows at paragraph 79 of the report:

"79. Our conclusions are as follows:

79.1. Proceedings in the present case are clear abuse of process of court and are quashed.

79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar and N.T. Desai and clarify the judgments of this Court in Balothia and Manju Devi.

79.3. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention.

79.4. 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.

79.5. Any violation of Directions 79.3 and 79.4 will be actionable by way of disciplinary action as well as contempt.

79.6. The above directions are prospective."

3. The directions contained in such order were issued in the context of the finding rendered therein that cases under the said Act "also fall in exceptional category where preliminary inquiry must be held ... inquiry must be time-bound ... arrest is not a must ...". The judgment in Subhash Kashinath Mahajan was rendered upon interpreting Section 18 of the said Act in the light of the constitutional safeguards pertaining to liberty and freedom and despite Section 18 of the said Act being worded thus:

"18. Section 438 of the Code not to apply to persons committing an offence under the Act.- 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 under this Act."

4. The Union of India carried a petition for the review of the judgment in Subhash Kashinath Mahajan. By an order of April 3, 2018 the hearing on the review petition was adjourned and, according to the Union's submission here, such review petition has not yet been disposed of by the Supreme Court.

5. In the Parliament's bid to undo the effect of the dictum in Subhash Kashinath Mahajan, Section 18-A was introduced into the Act by an amendment made effective on August 20, 2018. The new provision provides as follows:

"18-A. No enquiry or approval required. - (1) For the purposes of this Act, -

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,

against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."

6. Two principal grounds have been urged by the petitioner by filing a supplementary affidavit and questioning the vires of the amendment or the newly-introduced Section 18-A of the Act. The primary contention of the petitioner is that an order of court cannot be nullified by any legislature without undoing the basis of such order. The second, equally important, legal issue raised is that even upon Section 18-A of the Act being taken at face value without questioning the validity thereof, it does not imply that the moment a charge in any complaint is brought against a person and such charge is said to be under the said Act, such person has no right to approach an appropriate forum under Section 438 of the Code.

7. Several judgments have been brought to bear on the primary contention that Section 18-A of the Act falls foul of the fundamental doctrine of separation of powers in that the legislature does not possess the authority to undo a judicial order unless the basis of such judicial order is altered so that the same judgment may not hold good upon the law having been amended. Judgments have also been brought by the Union to try and justify the provision by suggesting that where, on the interpretation of the existing law, the court has conferred certain benefits, the same can be nullified by the legislature even with retrospective effect, so long as the law enacted does not contravene Chapter-III of the Constitution and other constitutional provisions. The Union asserts that the directions contained in paragraph 79 of the report in Subhash Kashinath Mahajan amount to benefits being conferred on an accused facing a charge under the said Act; which benefits have been done away with by Section 18-A(1) of the Act and, for good measure, clarificatory Section 18-A(2) sets at rest any doubts that may have been harboured as to the effect of the Supreme Court dictum in Subhash Kashinath Mahajan.

8. The Union has drawn the notice of this court to five several petitions, WP (C) No.1015 of 2018, WP (C) No.397 of 2018, WP (C) No.1016 of 2018, WP (C) No.1066 of 2018 and WP (C) No.1064 of 2018, having been filed in the Supreme Court where the vires of Section 18-A of the Act has been called into question. An order dated November 20, 2018 passed on such matters by the Supreme Court has been placed by the Union for the information that the hearing on the constitutional validity of Section 18-A of the said Act has been fixed for the third week of January, 2019.

9. The matter pertaining to the interpretation of Section 18 of the said Act, the judgment in Subhash Kashinath Mahajan and the amendment to the Act introduced in August, 2018 have been among the most important legal news in course of this year. Though there is no embargo, express or otherwise, on the challenge to the validity of Section 18-A being taken up here, since the Supreme Court is in active seisin of the matter, judicial propriety demands that in deference to the primacy of the Supreme Court, a hearing on the validity of such provision should not be started here at this stage. Accordingly, the principal legal issue raised by the petitioner is left unanswered in deference to the Supreme Court having taken up such matter for consideration.

10. It is, thus, that the second ground urged by the petitioner may be addressed. The petitioner has relied on the judgments reported at (1995) 3 SCC 221 : [1995 ALLMR ONLINE 384] (State of Madhya Pradesh v. Ram Kishna Balothia), (2012) 8 SCC 795 : [2012 ALL MR (Cri) 3743 (S.C.)] (Vilas Pandurang Pawar v. State of Maharashtra) and the decision in Subhash Kashinath Mahajan for the proposition that the mere institution of a complaint purported to be under the said Act of 1989 does not, ipso facto, divest an appropriate court of its authority to even receive a petition under Section 438 of the Code.

11. Section 18 of the said Act excludes the operation of Section 438 of the Code in relation to any case involving the arrest of any person "on an accusation of having committed an offence under this Act". Thus, it is only upon an accusation being made that a person had committed an offence under the said Act, that the court in receipt of a petition under Section 438 of the Code is not entitled to proceed therewith any further. However, it cannot be said that merely because a complainant alleges that, say, the person complained against has committed an offence under Section 3 of the Act, without indicating the nature of the act complained against, the complaint has to be regarded as an accusation of the person complained against having committed an offence under the Act. The authority of the appropriate court is not denuded to the extent that it may not even look into the complaint to ascertain whether a case of the offence under the said Act having been committed is made out in the complaint. Indeed, such exercise of jurisdiction is not prohibited by Section 18 of the Act; and, if the court finds that the complaint does not make out an offence under the said Act having been committed, the embargo under Section 18 of the Act would not come into play. Such legal position has been enunciated at paragraphs 9 and 10 of the judgment in Vilas Pandurang Pawar:

"9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

"10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. 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. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence."

12. The legal position is not that merely because an FIR refers to a provision under the Act or the complaint mentions Section 3 or Section 4 of the Act without the complaint making out any ingredients of an offence under either provision, the operation of Section 438 of the Code would stand automatically suspended. A petition under Section 438 of the Code may still be carried by the accused to the appropriate forum whereupon such forum will assess whether the accusation constitutes an offence under the said Act. Once such question is answered in the affirmative, the High Court or the court of sessions will proceed no further with the petition as the embargo under Section 18 of the Act would have fallen into place. But if the question is answered in the negative, Section 18 of the Act no longer remains a bar or stands in the way of the petition under Section 438 of the Code being considered on merits. Such further consideration becomes necessary since, as experience shows, charges come under several provisions simultaneously, including under different statutes; and, say, the complaint of a minor injury suffered in course of an assault can be combined with a charge under the said Act in respect of the same incident.

13. High judicial authorities instruct as to what ought to be the considerations that weigh with the court while assessing a petition under Section 438 of the Code. It is also left to the discretion of the appropriate superior courts as to what condition to impose in what situation while granting anticipatory bail. Similarly, an investigating officer has to apply his mind and take relevant considerations into account before proceeding to arrest a person complained against, notwithstanding such complaint being in respect of a non-bailable offence. An investigating officer should not proceed to arrest a person complained against merely because a complaint has been made and such complaint pertains to a non-bailable offence. Indeed, when an offence is such that Section 438 of the Code may not be open to the person complained against, a greater degree of circumspection has to be exercised by the investigating officer before proceeding to arrest the person complained against.

14. In the present case, the State has produced the case diary and the complaint therein. For the limited test that has to be applied, in the context of the discussion above, it cannot be said that the accusation does not disclose the ingredients of an offence under the said Act. Once so much is seen, in the light of Section 18 of the said Act read with Section 18-A thereof - without going into the question of the validity of such provision - this petition cannot be considered any further.

15. CRM 8302 of 2018 is rejected.

16. However, it is recorded that the challenge to the vires of Section 18-A of the Act has not been gone into despite the erudite initial submission in such regard made on behalf of the petitioner and the Union.

17. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Petition dismissed.