New Delhi: The Supreme Court on Tuesday said that the arrest of a accused under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, is not mandatory and recourse to coercive action would be only after preliminary inquiry and sanction by the competent authority.
Coupled with this, the court said, that there was 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 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” without the permission of appointing authority in case of public servant or that of Senior Superintendent of Police in case of general public, said the bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit in its judgment.
The bench said it provided for the safeguard “in view of acknowledged abuse of law of arrest” under the Act.
Speaking for the bench, Justice Goel said: “It is necessary to express concern that working of the Atrocities Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values.”
Referring to earlier pronouncements by the top court, the judgment said: “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.”
Addressing the often said dictum that court should not pass directions with are legislative in nature, Justice Goel said: “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.”
In a series of directions, the court said that the permission for arrest “must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court”.
The court further said that “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 of an innocent”, the court said 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”.
The court said as it quashed a complaint filed against the then Director of Education Subhash Kashinath Mahajan by Bhaskar Karbhari Gaidwad who was store-keeper in a pharmacy college in Maharashtra.
Mahajan had declined Gaidwad’s application seeking to file a complaint against the Principal of the college under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act after he made adverse entries in Gaidwad’s ACR.
Gaidwad had contended that Mahajan was not competent to deal with his application as it could have been dealt by the state government alone.
The Bombay High Court had declined to quash complaint against Mahajan.