Tuesday, 31 December 2019

Madras HC: Court can give anticipatory bail in SC &ST Atrocities Act

In Dr.Subhash Kashinath Mahajan, the Honble Supreme Court had 
specifically held that the exclusion of Section 438 of Cr.PC applies when a 
prima facie case of commission of offence under the Atrocities Act is made 
out.  On the other hand, if it can be shown that the allegations are prima 
facie motivated and false, such exclusion will not apply.    Thus, the 
decision rendered by the Honble Supreme Court in Dr.Subhash Kashinath 
Mahajan rests on an interpretation of Section 438 of Cr.PC.  Section 18 A 
does not appear to have removed the basis on which Dr.Subhash Kashinath 
Mahajan judgment is founded.  Mere employment of the expression 
notwithstanding any judgment or order or direction of any Court? may not 
make any difference.  I am therefore tempted to hold that even post 
amendment, Sessions Courts also will have the power  to grant  anticipatory 
bail. However, I cannot lose sight of the fact that the constitutional 
validity of Section 18 A has been  challenged before the Honble Supreme 
Court. The Honble Supreme Court specifically declined to stay the operation 
of this provision, though a strong request was made.  Thus, as on date, in 
view of  Section 18 A, Section 438 of Cr.PC stands excluded in cases arising 
under the Atrocities Act.  

11.The  outcome of the challenge can be one way or the other. Section 
18 A of the Act can be upheld.  Or it can be struck down. Even if its 
validity is upheld, the High Courts would still be entitled to grant 
anticipatory bail. The statute only excludes the applicability of Section 438 
of Cr.PC.   In the State of Uttar Pradesh, Section 438 of the Code has been 
deleted by the State amendment and the said  deletion has been upheld in 
(1994) 3 SCC 569 (Kartar Singh vs. State of Punjab).    But, that has not 
curtailed the extraordinary power of the High Court to entertain a plea of 
anticipatory bail and this power was held to be available in Hema Mishra  vs. 
State of U.P. and Ors, (2014) 4 SCC 453). 
12.Section 438 of Cr.PC is not the sole repository of the power to 
grant anticipatory bail.  The High Courts are endowed with inherent powers to 
make such orders as to secure the ends of justice.   I hope I am not 
indulging in quibbling or hair splitting  when I say that neither Section 18 
nor Section 18 A engraft a bar against grant of anticipatory bail.  They are 
to the effect that the provision of Section 438 of the Code shall not apply 
to a case under the Atrocities Act.  Even if Section 438 of Cr.PC is not 
available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that 
this Court is very much possessed of the power to grant anticipatory bail 
even in cases arising under  the Schedules Castes and the Scheduled Tribes 
(Prevention of Atrocities) Act, 1989.  The petitions can be filed under 
Article 226 of the Constitution of India or under Section 482 of Cr.PC.  
13.If the provision is struck down, in view of Dr.Subhash Kashinath 
Mahajan judgment, the Sessions Courts also will have the power to grant 
anticipatory bail. Of course, the test laid down in Dr.Subhash Kashinath 
Mahajan judgment will have to be met. I initially felt that Sessions Courts 
can also grant anticipatory bail in such cases. But, so long as Section 18 A 
(2) of the Act is in the statute book, since Sessions Courts cannot invoke 
Section 482 of Cr.PC, I hold that it is only the High Court which can grant 
the relief of anticipatory bail and not the Sessions Courts. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 

( Criminal Jurisdiction )

Date  : 26/11/2019

PRESENT

THE HONBLE MR.JUSTICE G.R.SWAMINATHAN

CRL OP(MD). No.17224 of 2019

Dr.S.Ariharan, Vs.  The Inspector of Police,



ORDER :  The Court made the following order :
The question that arises for my consideration is whether  anticipatory 
bail can be granted to the petitioners herein when they stand  accused of 
having intentionally insulted  a member of a scheduled caste with intent to 
humiliate her within public view. 

2.I place on record my gratitude to Shri.M.Ajmal Khan, learned Senior 
Counsel, for assisting this Court as  amicus curiae.    

3.The Scheduled Castes and the Schedules Tribes (Prevention of 
Atrocities Act), 1989 was enacted to prevent the commission of offences  of 
atrocities against the members of the Scheduled Castes and Schedules Tribes. 
Section 18 of the Act excluded the applicability of Section 438 of Criminal 
Procedure Code right from the inception.  Its constitutionality was upheld in 
(1995) 3 SCC 221 (State of M.P. and Ors. vs. Ram Krishna Balothia).  However, 
the Bar found an ingenious way of overcoming the situation.   Petitions under 
Section 482 of Cr.Pc were filed  in such cases with the prayer to permit the 
accused to surrender before the jurisdictional court and to mandate the court 
concerned to accept the surrender and dispose of the bail petition on the 
same day.   Unless serious offences under the Penal Code were involved, the 
usual practice was to  allow the petitions as prayed for.  Of course, some 
Judges held that such petitions were not maintainable.  Some   used to give 
directions that the bail petitions were to be considered expeditiously.  They 
avoided the use of the words ?on the same day?.    

4.Such a camouflaging became unnecessary following the definite ruling 
of the Honble Supreme Court in the decision reported in (2018) 6 SCC 454 
(Dr.Subhash Kashinath Mahajan vs. State of Maharashtra and another).   The 
Honble Supreme Court held that 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.     But then, the Bar had to revert to the old ways 
following the enactment of Central Act No.27 of 2018 introducing Section 18 A 
which reiterated that the provisions  of Section 438 of the Code shall not 
apply to a case under the Atrocities Act, notwithstanding any judgment or 
order or direction of any court.   

5.The Union of India not wanting to take chances also filed Review 
Petition (Crl) No.228 of 2018.  The same was disposed of vide judgment dated  
01.10.2019 by a three Judges Bench.  On a careful reading of the judgement  
dated 01.10.2019, one can note  that the essence and soul of Dr.Subhash 
Kashinath Mahajan judgment has not only survived but remains intact.

6.Let us go back to Dr.Subhash Kashinath Mahajan decision. The 
conclusions are set out in Paragraph 79.1 to 79.6 (as reported in SCC).  They 
read as under :
?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 an 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 abused 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 scrutinize 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 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.?
The operative portion of the judgment in the Review Petition is as under :
?67....Resultantly, we are of the considered opinion that direction 
Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled 
and consequently we hold that direction No.(v), also vanishes.  The review 
petitions are allowed to the extent mentioned above.?
Thus, the direction set out in Paragraph No.79.2 in Subhash Kashinath Mahajan 
judgment has not at all been touched. It still holds good.  
7.It is pertinent to note that the review judgment was pronounced long 
after Central Act No.27 of 2018 amending the statute and bringing in Section 
18 A came into force on 17.08.2018. Section 18 A of the Atrocities Act reads 
as under :
18A. (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.
Having noted that the review judgment of the Honble Supreme Court has not 
taken away what was held in Paragraph No.79.2 in Dr.Subhash Kashinath 
Mahajan, the question that next arises is whether in view of Section 18 A, 
the power of the court to grant anticipatory bail for cases under the 
Atrocities Act still holds.  

8.It is obvious that Section 18 A (2) has not ushered in anything new.   
Section 18 A (1) had to be incorporated to undo some of the directions set 
out in Dr.Subhash Kashinath Mahajan.  Even without Section 18 A (1), in view 
of the review judgment, the directions set out in Section 79.3, 79.4 and 79.5 
have gone.   Section 18 A (2) is a mere reiteration of Section 18 which 
provided for exclusion of Section 438 of Cr.Pc.  The question is whether the 
use of the expression notwithstanding any judgment or order or direction of 
any court can make any difference. 

9.While it is not open to the legislature to declare that a judicial 
pronouncement given by a court of law would not be binding, it can alter the 
very basis upon which the decision has been given.  They are known as 
validating Acts.  They may make ineffective the judgments and orders of 
competent courts.  The alteration should be made in such a manner  that it 
would no more be possible for the court  to arrive at the same verdict.   In 
other words, the very premise of the earlier judgment should be uprooted, 
thereby resulting in a fundamental change of the circumstances upon which it 
was founded(Bakhtawar Trust and Ors. vs. M.D. Narayan and Ors, (2003) 5 SCC 
298). However, as held in Janapada Sabha Chhindwara and Ors. vs. Central 
Provinces Syndicate Ltd. and Ors (1970) 1 SCC 509, it is not open to the 
legislature to say that a judgment of a Court properly constituted and 
rendered in exercise of its powers in a matter brought before it shall be 
deemed to be ineffective and the interpretation of the law shall be otherwise 
than as declared by the Court.    

10.In Dr.Subhash Kashinath Mahajan, the Honble Supreme Court had 
specifically held that the exclusion of Section 438 of Cr.PC applies when a 
prima facie case of commission of offence under the Atrocities Act is made 
out.  On the other hand, if it can be shown that the allegations are prima 
facie motivated and false, such exclusion will not apply.    Thus, the 
decision rendered by the Honble Supreme Court in Dr.Subhash Kashinath 
Mahajan rests on an interpretation of Section 438 of Cr.PC.  Section 18 A 
does not appear to have removed the basis on which Dr.Subhash Kashinath 
Mahajan judgment is founded.  Mere employment of the expression 
notwithstanding any judgment or order or direction of any Court? may not 
make any difference.  I am therefore tempted to hold that even post 
amendment, Sessions Courts also will have the power  to grant  anticipatory 
bail. However, I cannot lose sight of the fact that the constitutional 
validity of Section 18 A has been  challenged before the Honble Supreme 
Court. The Honble Supreme Court specifically declined to stay the operation 
of this provision, though a strong request was made.  Thus, as on date, in 
view of  Section 18 A, Section 438 of Cr.PC stands excluded in cases arising 
under the Atrocities Act.  

11.The  outcome of the challenge can be one way or the other. Section 
18 A of the Act can be upheld.  Or it can be struck down. Even if its 
validity is upheld, the High Courts would still be entitled to grant 
anticipatory bail. The statute only excludes the applicability of Section 438 
of Cr.PC.   In the State of Uttar Pradesh, Section 438 of the Code has been 
deleted by the State amendment and the said  deletion has been upheld in 
(1994) 3 SCC 569 (Kartar Singh vs. State of Punjab).    But, that has not 
curtailed the extraordinary power of the High Court to entertain a plea of 
anticipatory bail and this power was held to be available in Hema Mishra  vs. 
State of U.P. and Ors, (2014) 4 SCC 453). 
12.Section 438 of Cr.PC is not the sole repository of the power to 
grant anticipatory bail.  The High Courts are endowed with inherent powers to 
make such orders as to secure the ends of justice.   I hope I am not 
indulging in quibbling or hair splitting  when I say that neither Section 18 
nor Section 18 A engraft a bar against grant of anticipatory bail.  They are 
to the effect that the provision of Section 438 of the Code shall not apply 
to a case under the Atrocities Act.  Even if Section 438 of Cr.PC is not 
available, Section 482 of Cr.PC can very much be invoked. Hence, I hold that 
this Court is very much possessed of the power to grant anticipatory bail 
even in cases arising under  the Schedules Castes and the Scheduled Tribes 
(Prevention of Atrocities) Act, 1989.  The petitions can be filed under 
Article 226 of the Constitution of India or under Section 482 of Cr.PC.  
13.If the provision is struck down, in view of Dr.Subhash Kashinath 
Mahajan judgment, the Sessions Courts also will have the power to grant 
anticipatory bail. Of course, the test laid down in Dr.Subhash Kashinath 
Mahajan judgment will have to be met. I initially felt that Sessions Courts 
can also grant anticipatory bail in such cases. But, so long as Section 18 A 
(2) of the Act is in the statute book, since Sessions Courts cannot invoke 
Section 482 of Cr.PC, I hold that it is only the High Court which can grant 
the relief of anticipatory bail and not the Sessions Courts. 
  
14.It is relevant to note that when a petition for anticipatory bail 
was filed before the Madras High Court and the Registry refused to number the 
same on the ground of maintainability, the Honble Supreme Court in the 
decision reported in 2019 (2) Crimes 321 (SC) (P.Surendran vs. State by 
Inspector of Police), held that the High Court Registry could not have 
exercised such judicial power to answer the maintainability of the petition 
when the same was in the realm of the court.  The Registry was directed to 
number the petition and place it before the appropriate Bench.  However, the 
Honble Apex Court made it clear that they have not expressed any views on 
the nature of the amendment, the standard of judicial review and the extent 
of justiciability under Section 18 A of the SC & ST Act which was left open 
for the appropriate Bench to consider.

15.When an accused in a case under the Atrocities Act takes out an 
application for grant of anticipatory bail, he has to necessarily implead the 
victim/dependant/defacto complainant. It shall be the duty of the 
investigation officer to inform the defacto complainant/victim/dependant 
about the listing of the case.  This function has to be discharged in an 
expeditious manner.  Section 15 (1) (3) of the Act states that a victim or 
his dependent shall have the right to reasonable, accurate, and timely notice 
of any Court proceeding including any bail proceeding and the Special Public 
Prosecutor or the State Government shall inform the victim about any 
proceedings under this Act. The victim or the defacto complainant has to be 
heard.  But, if proceedings are going to be adjourned on this ground, it does 
have a bearing on the liberty of the accused. When the Special Public 
Prosecutor or the Government counsel is served with the relevant papers, it 
shall be their duty to pass on the information to the 
victim/dependant/defacto complainant with utmost expedition.  It is not 
necessary for the accused or the petitioner to serve the papers on the victim 
or effect notice in any other mode.  The statute even while conferring a 
right on the victim has carefully chosen to cast the duty only on the Special 
Public Prosecutor/the State Government.   

16.It is necessary to make a mention at this juncture about the manner 
in which a petition for anticipatory bail has to be drafted.  In a leading 
case in  Bharat Singh and Ors. vs. State of Haryana and Ors (1988) 4SCC 534, 
the Honble Supreme Court drew a distinction between a pleading under the CPC 
and a writ petition or a counter affidavit.  While in a pleading, that is, a 
plaint or a written statement, the facts and not evidence are required to be 
pleaded, in a writ petition or in the counter affidavit not only the facts 
but also the evidence in proof of such facts have to be pleaded and annexed 
to it.   If an accused is to be granted anticipatory bail in a case arising 
under the Atrocities Act, he has to fulfil the test laid down in Dr.Subhash 
Kashinath Mahajan case.  It is true that there are no strict rules of 
pleading in Criminal Procedure Code as those in the Civil Procedure Code.  
Nevertheless, the principles of natural justice require that the victim is 
not taken by surprise. Hence, the petition to be filed by the accused along 
with the anexures should contain all the necessary and relevant materials. 
Only after a judicial scrutiny of those materials and particulars,  the court 
can come to a decision as  to whether the accused is entitled to anticipatory 
bail.  Of course, the finding given by the court is only based on a prima 
facie view for the purpose of granting anticipatory bail and it will not have 
any bearing on the investigation as such. 
17.Having held that a petition for anticipatory bail is maintainable 
even if the case has been registered under the Scheduled Castes and the 
Scheduled Tribes (Prevention of Atrocities) Act, 1989, I now proceed to 
analyse the facts on hand. The first petitioner is a Tutor in the Government 
Homeopathy Medical College and Hospital, Thirumangalam. The second petitioner 
is working as a Nurse in the same institution. They apprehend arrest at the 
hands of the first respondent since the second respondent~Mayammal who is 
working as a Sweeper in the said institution lodged a complaint against them 
before the Inspector of Police, Thirumangalam Town police station. 


18.The matter was listed for admission on 22.11.2019, it was adjourned 
to 25.11.2019. On the adjourned date, the learned Government Advocate 
(crl.side) made a submission that the issue has been amicably resolved and 
that no First Information Report was registered. In the normal course of 
events, the criminal original petition should have been closed by recording 
the said submission. But then, the petitioners counsel strongly submitted 
that the petitioners are not parties to any compromise as claimed by the 
police and he pressed for an adjudication. He pointed out that the defacto 
complainant in her complaint dated 16.11.2019 had alleged that both the 
petitioners herein have abused her by referring to her community. It is 
relevant to mention that the defacto complainant belongs to a notified 
Scheduled Caste.  

19.The petitioners- counsel alleged that the defacto complainant would 
rarely report for duty on time and often play truant.  The first petitioner 
was given additional charge as Assistant Superintendent for a period of three 
months from 02.11.2019. The administrative work included closing the 
Attendance Register of the staff. On 16.11.2019, when the defacto complainant 
did not report for duty at 7.00 a.m., he made an endorsement to that effect 
and went to the Old Homeopathy Hospital Block attached to the Government 
Hospital Block, Thirumangalam. It is a full 2 kms., away from the Government 
Homeopathy Medical College and Hospital, Thirumangalam.  He had submitted a 
report on the previous day against the defacto complainant and her 
unauthorised absence and the delay in reporting for duty.  He had also 
pointed out that the defacto complainant used to make corrections in the 
Attendance Register. 

20.According to the petitioners, the defacto complainant came a full 
one hour late and when she saw that the Attendance Register had already been 
closed, she picked up quarrel with the second petitioner.  Thereafter, the 
defacto complainant challenged the first petitioner when he was in the cabin 
of the Principal. She tried to justify her late reporting and threatened the 
Principal that she would get even with the petitioners herein by lodging a 
complaint under the Atrocities Act.  She actually lodged a complaint two days 
later before the local police. In her complaint dated 16.11.2019, the defacto 
complainant had stated that the petitioners abused her in filthy language by 
referring to her caste.    In the petitioners typed set of papers the true 
copy of the said complaint was enclosed. 

21.I called for the case file. Interestingly, it contained only four 
papers, namely, (i)complaint dated 20.11.2019 given by Mayammal in which she 
had alleged that the petitioners herein used inappropriate words while 
scolding her on 16.11.2019 at 08.00 a.m.  (ii)Acknowledgement issued by the 
Sub Inspector of Police bearing C.S.R No.522 of 2019. (iii)letter dated 
22.11.2019 given by Mayammal in which she states that since the Principal of 
the College had given an assurance that no disciplinary action will be taken 
against her, she was not pursuing her complaint dated 20.11.2019 given 
against the petitioners herein. (iv)letter dated 22.11.2019 given by 
Dr.B.Karthikeyan, M.D., Principal of the said institution indicating that the 
management does not propose to take any action against Mayammal and that her 
service grievances would be redressed within three months and that her 
Attendance Register would also be kept in the college. 


22.I was surprised that while the petitioners had enclosed the typed 
copy of the complaint of Mayammal containing the allegation that the 
petitioners abused her by referring to her community, the case file of the 
first respondent police did not reflect the same. I therefore directly asked 
Ms.Mayammal as to whether she had given any complaint against the petitioners 
under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 
Act 1989. Mayammal readily and immediately answered in the affirmative. Like 
a magician pulling rabbits out of his hat, Mayammal pulled out a bunch of 
complaints from her bag.  She passed on a copy of the complaint dated 
16.11.2019 to the court.  It tallied with what was enclosed in page No.3 of 
the petitioners typed set.   

23.Mayammal was suspended from service on 22.11.2019. Her explanation 
was sought. Now, she lodged one more complaint dated 23.11.2019. The latest 
and updated and revised complaint had allegations against one matron Shanthi 
also as if she also abused her by referring to her community.  


24.I have to record my displeasure over the conduct of the respondent 
police. Mayammal, the defacto complainant herein had given a written 
complaint against the petitioners herein alleging that they have abused her 
with reference to her community. The said complaint has been deliberately 
suppressed and the first respondent has tried to act as a mediator. The 
Principal had been coerced into to giving an undertaking that he would not 
take any disciplinary action against the defacto complainant. When the police 
official from the first respondent police station took the stand that no such 
complaint under the Scheduled Castes and the Scheduled Tribes (Prevention of 
Atrocities) Act, 1989 has been received from the defacto complainant, 
Mayammal contradicted the same and stated that she did give more than one 
complaint in this regard.   

25.On a careful scrutiny of the entire material on record, I have no 
hesitation to come to the conclusion that the complaint of the defacto 
complainant against the petitioners that they abused her by referring to her 
community is false and mala fide.  She appears to be  a habitual late comer.  
When her superior officers attempted to discipline her, she chose to hit back 
and hide behind her communal identity.  She had lodged complaints under the 
Atrocities Act to foreclose any disciplinary action against her.  In fact, 
she initially succeeded in her endeavour. Only because the petitioners took a 
principled stand, she could not get away with her filibustering tactics.   

26.Though as on date, there is no FIR against the petitioners, they are 
having a legitimate apprehension that they may be arrested as and when the 
case based on the complaint of Mayammal is registered. Applying the 
principles laid down by the Honble Supreme Court, I hold that the 
petitioners are entitled to the relief of anticipatory bail. Accordingly, the 
petitioners are ordered to be released on bail in the event of arrest or on 
their appearance before the learned Judicial Magistrate, Thirumangalam and on 
their executing a bond for a sum of Rs.10,000/(Rupees Ten thousand only) 
with two sureties each for a like sum to the satisfaction of the learned 
Magistrate concerned and on further condition that the petitioners shall 
appear before the respondent police as and when required for interrogation. 
The petitioners shall comply with the conditions stipulated under Section 438 
of Cr.P.C scrupulously. The petitioners shall appear before the concerned 
Magistrate within a period of 15 days from the date on which the order copy 
made ready, failing which, the petition for anticipatory bail shall stand 
dismissed.  
    
                                      
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