Saturday, 29 August 2020

Whether the court must hear victim while deciding bail application of accused in bailable offences under the SC & ST Atrocities Act?

Our final conclusions may be summarised as under :
(1) Section 15A(3) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment Act,
2015 (1 of 2016) is not ultra vires Articles 14 and 21 of the
Constitution of India.
(2) Section 15A(3) of the Amendment Act, 2015, cannot be
termed as manifestly arbitrary.
(3) Section 15A(3) of the Amendment Act, 2015, has to be
construed as mandatory and not directory. The
non-compliance of the said provision would render the
order null and void.
(4) Section 15A(3) of the Amendment Act, 2015, in no
manner imposes any unreasonable restrictions or fetters
on the discretion of the competent court, for the purpose of
considering the plea of bail. The general principles with
regard to grant of bail would continue to apply even in
cases under the Atrocities Act.
(5) The right of a person, who is accused of committing
only bailable offence or offences, if any, under the Act, to
be released on bail, is absolute in view of the provisions

contained in Section 436(1) of the Code of Criminal
Procedure. There is no provision in the Act which curtails
the right of an accused to get bail in a case of bailable
offence. The provisions contained in Section 15A(5) does
not, in any manner, affect the absolute right of a person,
who is accused of only bailable offence or offences, to be
released on bail.
(6) When a person is accused of committing only bailable
offence or offences under the Act, it is not mandatory to
grant opportunity of hearing to the victim or the dependent
as provided under Section 15A(5) of the Act in a proceeding
relating to granting bail to such accused. However, before
the court decides to decline such opportunity to the victim
or the dependent, the court shall thoroughly verify and
ascertain that the allegations against the accused disclose
commission of only bailable offence or offences under the
Act, by him.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6369 of 2020

THE CHIEF JUSTICE MR. VIKRAM NATH and
 MR. JUSTICE J.B.PARDIWALA 


HEMAL ASHWIN JAIN (SHETH) Vs  UNION OF INDIA


CORAM:  THE CHIEF JUSTICE MR. VIKRAM NATH
and MR. JUSTICE J.B.PARDIWALA
Date : 06/08/2020

(PER :  MR. JUSTICE J.B.PARDIWALA)

1. By this writ-application under Article 226 of the
Constitution of India, the writ-applicant has prayed for the
following reliefs :

“(a) To allow this application;
(b) To hold and declare that the provisions of Section
15A(3) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 being violative of Article
14 and Article 21 of the Constitution of India;
(c) To issue appropriate Writ, Order or Direction quashing
and setting aside provisions of Section 15A(3) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 being ultra vires to Article 14 and
Article 21 of the Constitution of India;
(d) To direct that the provisions of Section 15A(3) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 be read down as directory and not
mandatory so as to empower the concerned court to
consider application of bail without issuing formal Notice to
the complainant;
(e) Pending admission, hearing and final disposal of this
application, to stay the implementation and operation of
provisions of Section 15A(3) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989;
(f) To pass any other and further orders as may be
deemed fit and proper to this Hon'ble Court.”
2. The facts giving rise to this litigation may be summarised
as under :

3. The writ-applicant is serving as a Manager in a company
running in the name of the Western Auto-spares situated at
Ahmedabad. It appears from the materials on record that one of
the employees of the factory got a First Information Report
registered against the writ-applicant for the offences punishable
under the provisions of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Act, 2015 (1 of
2016). In connection with the said FIR, the writ-applicant was
arrested by the police and later was ordered to be released on
bail.
4. It is the case of the writ-applicant that the registration of
the FIR against him by the employee of the factory is nothing but
gross misuse of the provisions of the Atrocities Act. It is his case
that he is a victim of malicious, vexatious and frivolous
prosecution.
5. It appears that in view of Section 15A of the Amendment
Act, 2015, falling within Chapter IVA, the first informant, in his
capacity as the so-called victim, was also heard by the Special
Court before granting bail to the writ-applicant.
6. It is the case of the writ-applicant that the amended
provisions in the form of Section 15A(3) and (5) are ultra vires
Article 14 of the Constitution of India being manifestly arbitrary.
7. According to the writ-applicant, Section 15A(3) and (5)
should be construed as directory and not mandatory. According
to the writ-applicant, the impugned provisions of law infringe the

right of an accused to seek bail from the competent court in
connection with a particular offence as it is now mandatory for
the Special Court, while considering the plea of bail in
connection with the offences under the Atrocities Act, to hear the
victim. This, according to the writ-applicant, could be termed as
a very drastic and draconian provision of law.
8. It is the case of the writ-applicant that except in cases
under the Atrocities Act, for no other offence, it is mandatory for
any court to hear the victim/complainant while considering the
plea of bail put forward by any accused. According to the
writ-applicant, no exception should be carved out when it comes
to considering the plea of bail. To put it in other words, it is the
case of the writ-applicant that even while hearing a bail
application of an accused charged with an offence of murder or
any other serious offence, if it is not mandatory for the court to
hear the victim/complainant, then why the provision like Section
15A(3) and (5) of the Amendment Act should be introduced by
the Legislature.
9. In such circumstances referred to above, the writ-applicant
prays that Section 15A(3) of the Amendment Act, 2015 (1 of
2016) be declared as violative of Article 14 and 21 respectively of
the Constitution of India, or in the alternative, the provisions of
Section 15A(3) of the Amendment Act, 2015, be construed as
directory and not mandatory so as to confer discretion upon the
competent court to consider the bail application with or without
issuing any notice to the victim.

SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT :
10. The grounds of challenge to the constitutional validity of
Section 15A(3) of the Amendment Act, 2015, as raised in the
memorandum of writ-application are as under :
“(A) That, the provision is violative of Article 14 and 21 of
the Constitution of India. The provision imposes arbitrary
restriction on bail as a mandatory procedure which violates
right to liberty enshrined under Article 21 of the Constitution
of India. It is settled law that procedural discrimination also
can condemn Article 14 of the Constitution of India. That
regard the petitioner begs to rely upon the ratio laid down
by the Hon’ble Apex Court in case of Budhan Choudhry and
Other v. The State Of Bihar [1955 AIR 191]
(B) That the provision has no nexus with the object to be
achieved by the Act. That imposing of such condition and/or
restriction on bail would not serve any purpose and would
in fact render the provision susceptible to misuse as no
exception is provided for grant of bail in case the court finds
that no offence under provisions of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
is made out.
(C) That the provision deprives accused for his
Fundamental Rights of liberty in the sense that the accused
would not be entitled to bail at the time of his production
before the court.

(D) That the provision is violative of Section 437 of the
Code of Criminal Procedure, 1973 compelling the accused to
remain in custody even if offence is punishable with
imprisonment with less than seven years. In other words
the parent statue for bail is the Code of Criminal Procedure,
1973. The procedure for bail is provided under the said
Code. There is nothing in the provisions of Section 15A(3)
which would override provisions of Section 5 of the Code of
Criminal Procedure, 1973. In fact, Section 5 of the Code of
Criminal Procedure, 1973 provides that if there is specific
provision to the contrary then provision of Section 5 will save
the provision of the Code of Criminal Procedure, 1973 even if
there is overriding effect.
(E) That the debate - discussion concerning the present
amendment does not contain any specific discussion and/or
requirement on introducing such restrictions. The object of
the Act is not to keep person charged with offence under the
Act in custody but is to bring justice to the victim by
conducting expeditious trial in this process the present
amendment is not going to yield any result.
(F) It is stated that all the courts across the State
considers bail application only after Notice is issued to the
complainant even if the cases where there are no
reasonable grounds for believing that the offence under the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is made out. This is on account of the
reason that the provision is absolute and drastic which does
not leave any exception to balance individuals liberty. This

ultimately will result into a pre-condition for grant of bail
impeaching Article 21 of the Constitution of India.
(G) The provision is drastic, arbitrary and unreasonable
which is susceptible to misuse as no exception is carved out.
(H) That even otherwise the impugned provision is bad in
law and same be quashed and set aside.”
SUBMISSIONS ON BEHALF OF THE UNION OF INDIA :
11. Mr.Devang Vyas, the learned Assistant Solicitor General of
India appearing for the Union, has vehemently opposed this
writ-application. Mr.Vyas would submit that the challenge to the
constitutional validity of Section 15A(3) of the Amendment Act,
2015, is without any basis or foundation. Mr.Vyas would submit
that Section 15A falling in Chapter IVA of the Amendment Act,
2015, is with a definite object and purpose. He would submit
that the complaint/allegation of atrocities, despite the provisions
of the enabling Act against the members of the Scheduled Castes
and Scheduled Tribes is a matter of concern. The Act has
accordingly been strengthen to make the relevant provisions of
the Act more effective. Mr.Vyas would submit that based on the
consultation process with all the stakeholders, the amendments
in the Atrocities Act were proposed to broadly cover five areas,
namely (i) Amendments to Chapter II (Offences of Atrocities) to
include new definitions, new offences, to re-phrase existing
sections and expand the scope of presumptions, (ii) Institutional
Strengthening, (iii) Appeals (a new section), (iv) Establishing

Rights of Victims and Witnesses (a new chapter) and (v)
Strengthening Preventive Measures.
12. Mr.Vyas would submit that the objective of all the
above-referred amendments in the Atrocities Act is to deliver to
the members of the Scheduled Castes and Scheduled Tribes a
greater justice as well as an enhanced deterrent to the offenders.
13. Mr.Vyas would submit that by any stretch of imagination it
cannot be said that the impugned provisions of the Amendment
Act is manifestly arbitrary. He would submit that mere
apprehension that such amended provisions in the Act are likely
to be misused cannot be a ground to strike down such
provisions as ultra vires Article 14 of the Constitution of India on
the ground of arbitrariness.
14. Mr.Vyas would submit that there is no scope to read down
the impugned provisions of law as directory. Having regard to
the language employed by the Legislature and also having regard
to the objects and reasons for the amendment, Section 15A(3) of
the Amendment Act has to be construed as mandatory and there
is no discretion with the competent court in this regard.
15. Mr.Vyas would submit that having regard to the provisions
of law, a victim or dependent has a right to be heard by the court
enabling the victim or dependent to participate in any proceeding
in respect of not only bail proceedings but also in the
proceedings of discharge, release, parole, conviction or sentence
of an accused or any connected proceedings or arguments and

file written submissions on the conviction, acquittal or
sentencing.
16. Mr.Vyas would submit that the reliance placed by the
learned counsel appearing for the writ-applicant on a recent
decision of the Supreme Court in the case of Nikesh Tarachjand
Shah v. Union of India, reported in (2018)11 SCC 1, is
completely misplaced. Mr.Vyas would submit that in Nikesh
Tarachand Shah (supra), the Supreme Court struck down
Section 45(1) of the PMLA Act on the ground of being arbitrary
and discriminatory. The twin conditions under Section 45(1) for
the offences classified thereunder in Part-A of the Schedule to
the PMLA Act were held to be arbitrary and discriminatory
because the Supreme Court found the same to be violative of
Articles 14 and 21 of the Constitution of India. Mr.Vyas pointed
out that what weighed with the Supreme Court in saying so was
the condition stipulated in Section 45 that where the Public
Prosecutor opposes the application the court should be satisfied
that there are reasonable grounds for believing that the accused
is not guilty of such offence and that he was not likely to commit
offence while on bail. Such a provision of law was found by the
Supreme Court to be manifestly arbitrary and was accordingly
declared as ultra vires Articles 14 and 21 of the Constitution of
India.
17. In such circumstances referred to above, Mr.Vyas prays
that there being no merit in this writ-application, the same be
rejected.

ANALYSIS :
18. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the following
questions of pivotal importance fall for our consideration :
(1) Whether Section 15A(3) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Amendment
Act, 2015 (1 of 2016) is ultra vires Articles 14 and 21
respectively of the Constitution of India being manifestly
arbitrary ?
(2) Whether Section 15A(3) of the Amendment Act, 2015,
is mandatory or directory ?
(3) Whether Section 15A(3) of the Amendment Act, 2015,
imposes any restrictions upon the competent court while
considering the plea of bail in connection with the offences
under the Atrocities Act ? In other words, whether Section
15A(3) of the Amendment Act could be said to be, in any
manner, placing unreasonable restrictions when it comes
to exercising discretion in favour of an accused while
considering the plea of bail ?
19. Before adverting to the rival submissions canvassed on
either side, we must look into the impugned provisions of the
Amendment Act, 2015. We quote the entire Chapter IVA of the
Amendment Act, 2015, which is with regard to the rights of the
victims and witnesses as under :

“CHAPTER IVA
RIGHTS OF VICTIMS AND WITNESSES
15A. (1) It shall be the duty and responsibility of the
State to make arrangements for the protection of victims,
their dependents, and witnesses against any kind of
intimidation or coercion or inducement or violence or threats
of violence.
(2) A victim shall be treated with fairness, respect and
dignity and with due regard to any special need that arises
because of the victim’s age or gender or educational
disadvantage or poverty.
(3) 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.
(4) A victim or his dependent shall have the right to apply
to the Special Court or the Exclusive Special Court, as the
case may be, to summon parties for production of any
documents or material, witnesses or examine the persons
present.
(5) A victim or his dependent shall be entitled to be heard
at any proceeding under this Act in respect of bail,
discharge, release, parole, conviction or sentence of an

accused or any connected proceedings or arguments and file
written submission on conviction, acquittal or sentencing.
(6) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, the Special Court or the Exclusive
Special Court trying a case under this Act shall provide to a
victim, his dependent, informant or witnesses—
(a) the complete protection to secure the ends of
justice;
(b) the travelling and maintenance expenses during
investigation, inquiry and trial;
(c) the social-economic rehabilitation during
investigation, inquiry and trial; and
(d) relocation.
(7) The State shall inform the concerned Special Court or
the Exclusive Special Court about the protection provided to
any victim or his dependent, informant or witnesses and
such Court shall periodically review the protection being
offered and pass appropriate orders.
(8) Without prejudice to the generality of the provisions of
sub-section (6), the concerned Special Court or the Exclusive
Special Court may, on an application made by a victim or
his dependent, informant or witness in any proceedings
before it or by the Special Public Prosecutor in relation to

such victim, informant or witness or on its own motion, take
such measures including––
(a) concealing the names and addresses of the
witnesses in its orders or judgments or in any records
of the case accessible to the public;
(b) issuing directions for non-disclosure of the identity
and addresses of the witnesses;
(c) take immediate action in respect of any complaint
relating to harassment of a victim, informant or
witness and on the same day, if necessary, pass
appropriate orders for protection:
Provided that inquiry or investigation into the
complaint received under clause (c) shall be tried
separately from the main case by such Court and
concluded within a period of two months from the date
of receipt of the complaint:
Provided further that where the complaint under
clause (c) is against any public servant, the Court shall
restrain such public servant from interfering with the
victim, informant or witness, as the case may be, in
any matter related or unrelated to the pending case,
except with the permission of the Court.
(9) It shall be the duty of the Investigating Officer and the
Station House Officer to record the complaint of victim,

informant or witnesses against any kind of intimidation,
coercion or inducement or violence or threats of violence,
whether given orally or in writing, and a photocopy of the
First Information Report shall be immediately given to them
at free of cost.
(10) All proceedings relating to offences under this Act shall
be video recorded.
(11) It shall be the duty of the concerned State to specify
an appropriate scheme to ensure implementation of the
following rights and entitlements of victims and witnesses in
accessing justice so as––
(a) to provide a copy of the recorded First Information
Report at free of cost;
(b) to provide immediate relief in cash or in kind to
atrocity victims or their dependents;
(c) to provide necessary protection to the atrocity
victims or their dependents, and witnesses;
(d) to provide relief in respect of death or injury or
damage to property;
(e) to arrange food or water or clothing or shelter or
medical aid or transport facilities or daily allowances
to victims;

(f) to provide the maintenance expenses to the atrocity
victims and their dependents;
(g) to provide the information about the rights of
atrocity victims at the time of making complaints and
registering the First Information Report;
(h) to provide the protection to atrocity victims or their
dependents and witnesses from intimidation and
harassment;
(i) to provide the information to atrocity victims or their
dependents or associated organisations or individuals,
on the status of investigation and charge sheet and to
provide copy of the charge sheet at free of cost;
(j) to take necessary precautions at the time of medical
examination;
(k) to provide information to atrocity victims or their
dependents or associated organisations or individuals,
regarding the relief amount;
(l) to provide information to atrocity victims or their
dependents or associated organisations or individuals,
in advance about the dates and place of investigation
and trial;
(m) to give adequate briefing on the case and
preparation for trial to atrocity victims or their

dependents or associated organisations or individuals
and to provide the legal aid for the said purpose;
(n) to execute the rights of atrocity victims or their
dependents or associated organisations or individuals
at every stage of the proceedings under this Act and to
provide the necessary assistance for the execution of
the rights.
(12) It shall be the right of the atrocity victims or their
dependents, to take assistance from the Non-Government
Organisations, social workers or advocates.”
20. We take notice of the fact that the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) (Amendment) Act,
2018, was made a subject matter of challenge before the
Supreme Court in the case of Prathvi Raj Chauhan v. Union of
India and others [Writ Petition (C) No.1015 of 2018, decided on
10th February 2020]. The main challenge before the Supreme
Court was to the legality and validity of the provisions inserted
by way of carving out Section 18A of the Act, 1989. Their
Lordships Arun Mishra and Vineet Saran, JJ. disposed of the
petition holding as under :
“9. The section 18A(i) was inserted owing to the decision
of this Court in Dr. Subhash Kashinath (supra), which made
it necessary to obtain the approval of the appointing
authority concerning a public servant and the SSP in the
case of arrest of accused persons. This Court has also

recalled that direction on Review Petition (Crl.) No.228 of
2018 decided on 1.10.2019. Thus, the provisions which
have been made in section 18A are rendered of academic
use as they were enacted to take care of mandate issued in
Dr. Subhash Kashinath (supra) which no more prevails. The
provisions were already in section 18 of the Act with respect
to anticipatory bail.
10. Concerning the applicability of provisions of section
438 Cr.PC, it shall not apply to the cases under Act of 1989.
However, if the complaint does not make out a prima facie
case for applicability of the provisions of the Act of 1989, the
bar created by section 18 and 18A(2) shall not apply. We
have clarified this aspect while deciding the review
petitions.
11. The court can, in exceptional cases, exercise power
under section 482 Cr.PC for quashing the cases to prevent
misuse of provisions on settled parameters, as already
observed while deciding the review petitions. The legal
position is clear, and no argument to the contrary has been
raised.
12. The challenge to the provisions has been rendered
academic. In view of the aforesaid clarifications, we dispose
of the petitions.”
21. We take notice of a separate judgment, though concurring,
of His Lordship Justice S.Ravindra Bhat. As the observations

made by His Lordship are helpful to this Court to decide the
present matter, we quote the observations of His Lordship
Justice S.Ravindra Bhat thus :
“1. I am in agreement with the judgment proposed by
Justice Arun Mishra as well as its conclusions that the
challenge to the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) (Amendment) Act, 2018 must fail,
with the qualifications proposed in the judgment with
respect to the inherent power of the court in granting
anticipatory bail in cases where prima facie an offence is
not made out. I would however, supplement the judgment
with my opinion.
2. The Constitution of India is described variously as a
charter of governance of the republic, as a delineation of the
powers of the state in its various manifestations vis-à-vis
inalienable liberties and a document delimiting the rights
and responsibilities of the Union and its constituent states.
It is more: it is also a pact between people, about the
relationships that they guarantee to each other (apart from
the guarantee of liberties vis-à-vis the state) in what was a
society riven along caste and sectarian divisions. That is
why the preambular assurance that the republic would be
one which guarantees to its people liberties, dignity, equality
of status and opportunity and fraternity.
3. It is this idea of India, - a promise of oneness of and
for, all people, regardless of caste, gender, place of birth,
religion and other divisions that Part III articulates in four

salient provisions: Article 15, Article 17, Article 23 and
Article 24. The idea of fraternity occupying as crucial a place
in the scheme of our nation’s consciousness and polity, is
one of the lesser explored areas in the constitutional
discourse of this court. The fraternity assured by the
Preamble is not merely a declaration of a ritual handshake
or cordiality between communities that are diverse and have
occupied different spaces: it is far more. This idea finds
articulation in Article 15. That provision, perhaps even more
than Article 14, fleshes out the concept of equality by
prohibiting discrimination and discriminatory practices
peculiar to Indian society. At the center of this idea, is that
all people, regardless of caste backgrounds, should have
access to certain amenities, services and goods so
necessary for every individual. Article 15 is an important
guarantee against discrimination. What is immediately
noticeable is that whereas Article 15 (1) enjoins the State
(with all its various manifestations, per Article 12) not to
discriminate on the proscribed grounds (religion, race, caste,
sex (i.e. gender), place of birth or any of them), Article 15 (2)
is a wider injunction: it prohibits discrimination or subjection
to any disability of anyone on the grounds of religion, caste,
race, sex or place of birth in regard to access to shops,
places of public entertainment, or public restaurants. The
relevant parts of Article 15 are extracted below:
“15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any

citizen on grounds only of religion, race, caste,
sex, place of birth or any of them .
(2) No citizen shall, on grounds only of religion,
race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or
condition with regard to
(a) access to shops, public restaurants,
hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats,
roads and places of public resort
maintained wholly or partly out of State
funds or dedicated to the use of the general
public…”
(3) Nothing in this article shall prevent the State
from making any special provision for women and
children”
Article 15(2)(b) prescribes the subjection of anyone
to any disability on the prescribed grounds (i.e.
discrimination on grounds of religion, caste, race,
sex or place of birth) with regard to “the use of
wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of
State funds or dedicated to the use of the general
public.
4. The making of this provision and others, in my view, is
impelled by the trinity of the preambular vision that the
Constitution makers gave to this country. Paeans have been

sung about the importance of liberty as a constitutional
value: its manifest articulation in the (original) seven
“lamps” i.e. freedoms under Article 19 of the Constitution;
the other rights to religion, those of religious denominations,
etc. Likewise, the centrality of equality as an important
constitutional provision has been emphasized, and its many
dimensions have been commented upon. However, the
articulation of fraternity as a constitutional value, has
lamentably been largely undeveloped. In my opinion, all the
three - Liberty, Equality and Fraternity, are intimately
linked. The right to equality, sans liberty or fraternity, would
be chimerical - as the concept presently known would be
reduced to equality among equals, in every manner- a mere
husk of the grand vision of the Constitution. Likewise,
liberty without equality or fraternity, can well result in the
perpetuation of existing inequalities and worse, result in
license to indulge in society’s basest practices. It is
fraternity, poignantly embedded through the provisions of
Part III, which assures true equality, where the state treats
all alike, assures the benefits of growth and prosperity to
all, with equal liberties to all, and what is more, which
guarantees that every citizen treats every other citizen alike.
5. When the framers of the Constitution began their
daunting task, they had before them a formidable duty and
a stupendous opportunity: of forging a nation, out of several
splintered sovereign states and city states, with the
blueprint of an idea of India. What they envisioned was a
common charter of governance and equally a charter for the
people. The placement of the concept of fraternity, in this

context was neither an accident, nor an idealized emulation
of the western notion of fraternity, which finds vision in the
French and American constitutions and charters of
independence. It was a unique and poignant reminder of a
society riven with acute inequalities: more specifically, the
practice of caste discrimination in its virulent form, where
the essential humanity of a large mass of people was
denied by society- i.e. untouchability.
6. The resolve to rid society of these millennial practices,
consigning a large segment of humanity to the eternal
bondage of the most menial avocations creating inflexible
social barriers, was criticized by many sages and saints.
Kabir, the great saint poet, for instance, in his composition,
remarked:
“If thou thinkest the maker distinguished castes:
Birth is according to these penalties for deeds.
Born a Sudra, you die a Sudra;
It is only in this world of illusion that you assume
the sacred thread. If birth from a Brahmin makes
you a Brahmin, Why did you not come by another
way?
If birth from a Turk makes you a Turk, Why were
you not circumcised in the womb?
… Saint Kabir, renounce family, caste, religion,
and nation, And live as one.”

7. There were several others who spoke, protested, or
spoke against the pernicious grip of social inequity due to
caste oppression of the weakest and vulnerable segments of
society. Guru Nanak, for instance, stated :
“Caste and dynastic pride are condemnable notions,
the one master shelters all existence.
Anyone arrogating superiority to himself halt be
disillusioned. Saith Nanak:
superiority shall be determined by God”
The Guru Granth Saheb also states that
“All creatures are noble, none low,
One sole maker has all vessels fashioned;
In all three worlds is manifest the same light…”
8. The preamble to the Constitution did not originally
contain the expression “fraternity”; it was inserted later by
the Drafting Committee under the chairmanship of
Dr.Ambedkar. While submitting the draft Constitution, he
stated, on 21 February, 1948, that the Drafting Committee
had added a clause about fraternity in the Preamble even
though it was not part of the Objectives Resolution because
it felt that “the need for fraternal concord and goodwill in
India was never greater than now, and that this particular
aim of the new Constitution should be emphasized by
special mention in the Preamble” [B.Shiva Rao : Framing of

India's Constitution Vol.III, page 510 (1968)]. Pandit Thakur
Das Bhargava expressed a “sense of gratitude to Dr.
Ambedkar for having added the word “fraternity” to the
Preamble”. Acharya Kripalani also emphasized on this
understanding, in his speech on 17 October, 1949:
“Again, I come to the great doctrine of fraternity, which
is allied with democracy. It means that we are all sons
of the same God, as the religious would say, but as
the mystic would say, there is one life pulsating
through all of us, or as the Bible says, “We are one of
another”. There can be no fraternity without this.”
9. This court too, has recognized and stressed upon the
need to recognize fraternity as one of the beacons which
light up the entire Constitution. Justice Thommen, in Indira
Sawhney v Union of India, 1992 Supp (3) SCR 454 said this:
“The makers of the Constitution were fully
conscious of the unfortunate position of the
Scheduled Castes and Scheduled Tribes. To them
equality, liberty and fraternity are but a dream;
an ideal guaranteed by the law, but far too
distant to reach; far too illusory to touch. These
backward people and others in like positions of
helplessness are the favoured children of the
Constitution. It is for them that ameliorative and
remedial measures are adopted to achieve the
end of equality. To permit those who are not

intended to be so specially protected to compete
for reservation is to dilute the protection and
defeat the very constitutional aim.”
10. In Raghunathrao Ganpatrao v. Union of India, 1993(1)
SCR 480, this court held:
“In our considered opinion this argument is
misconceived and has no relevance to the facts of
the present case. One of the objectives of the
Preamble of our Constitution is 'fraternity
assuring the dignity of the individual and the
unity and integrity of the nation.' It will be
relevant to cite the explanation given by Dr.
Ambedkar for the word 'fraternity' explaining that
'fraternity means a sense of common brotherhood
of all Indians.' In a country like ours with so many
disruptive forces of regionalism, communalism
and linguism, it is necessary to emphasise and
re-emphasise that the unity and integrity of India
can be preserved only by a spirit of brotherhood.
India has one common citizenship and every
citizen should feel that he is Indian first
irrespective of other basis. In this view, any
measure at bringing about equality should be
welcome.”
11. In a similar vein, the court in Nandini Sundar v. State

of Chhatisgarh, 2011(7) SCC 457, again commented on this
aspect and said that “The Constitution itself, in no uncertain
terms, demands that the State shall strive, incessantly and
consistently, to promote fraternity amongst all citizens such
that dignity of every citizen is protected, nourished and
promoted.”
12. It was to achieve this ideal of fraternity, that the three
provisions - Articles 15, 17 and 24 were engrafted. Though
Article 17 proscribes the practice of untouchability and
pernicious practices associated with it, the Constitution
expected Parliament and the legislatures to enact effective
measures to root it out, as well as all other direct and
indirect, (but virulent nevertheless) forms of caste
discrimination. Therefore, in my opinion, fraternity is as
important a facet of the promise of our freedoms as personal
liberty and equality is. The first attempt by Parliament to
achieve that end was the enactment of the Untouchability
(Offences) Act, 1955. The Act contained a significant
provision that where any of the forbidden practices “is
committed in relation to a member of a Scheduled Caste” the
Court shall presume, unless the contrary is proved, that
such act was committed on the ground of “Untouchability”.
This implied that the burden of proof lies on the accused and
not on the prosecution. The Protection of Civil Rights Act,
1955, followed. This too made provision for prescribing
“punishment for the preaching and practice of -
"Untouchability" for the enforcement of any disability arising
therefrom”. The enforcement of social practices associated
with untouchability and disabilities was outlawed and

made the subject matter of penalties. After nearly 35 years’
experience, it was felt that the 1955 Act (which was
amended in 1976) did not provide sufficient deterrence to
social practices, which continued unabated and in a
widespread manner, treating members of the scheduled
caste and tribe communities in the most discriminatory
manner, in most instances, stigmatizing them in public
places, virtually denying them the essential humanity which
all members of Society are entitled to.
13. It was to address this gulf between the rights which
the Constitution guaranteed to all people, particularly those
who continued to remain victims of ostracism and
discrimination, that the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereafter “the
Act”) was enacted. Rules under the Act were framed in 1995
to prevent the commission of atrocities against members of
Schedules Castes and Tribes, to provide for special courts
for the trial of such offences and for the relief and
rehabilitation of the victims of such offences and for matters
connected therewith or incidental thereto. The Statement of
Objects and Reasons appended to the Bill, when moved in
the Parliament, observed that despite various measures to
improve the socio-economic conditions of Scheduled Castes
and Scheduled Tribes, they remained vulnerable. They are
denied a number of civil rights and are subjected to various
offences, indignities, humiliation and harassment. They
have been, in several brutal instances, deprived of their life
and property. Serious atrocities were committed against
them for various historical, social and economic reasons.

The Act, for the first time, puts down the contours of
‘atrocity’ so as to cover the multiple ways through which
members of scheduled castes and scheduled tribes have
been for centuries humiliated, brutally oppressed, degraded,
denied their economic and social rights and relegated to
perform the most menial jobs.
14. The Report on the Prevention of Atrocities against
Scheduled Castes vividly described that despite enacting
stringent penal measures, atrocities against scheduled caste
and scheduled tribe communities continued; even law
enforcement mechanisms had shown a lackadaisical
approach in the investigation and prosecution of such
offences. The report observed that in rural areas, various
forms of discrimination and practices stigmatizing members
of these communities continued. Parliament too enacted an
amendment to the Act in 2015, strengthening its provisions
in the light of the instances of socially reprehensive practices
that members of scheduled caste and scheduled tribe
communities were subjected to. In this background, this
court observed in the decision in National Campaign on Dalit
Human Rights v. Union of India, (2017)2 SCC 432, that:
“The ever-increasing number of cases is also an
indication to show that there is a total failure on
the part of the authorities in complying with the
provisions of the Act and the Rules. Placing
reliance on the NHRC Report and other reports,
the Petitioners sought a mandamus from this
Court for effective implementation of the Act and
the Rules.
12. We have carefully examined the material on
record and we are of the opinion that there has
been a failure on the part of the concerned
authorities in complying with the provisions of the
Act and Rules. The laudable object with which the
Act had been made is defeated by the indifferent
attitude of the authorities. It is true that the State
Governments are responsible for carrying out the
provisions of the Act as contended by the counsel
for the Union of India. At the same time, the
Central Government has an important role to play
in ensuring the compliance of the provisions of the
Act. Section 21(4) of the Act provides for a report
on the measures taken by the Central
Government and State Governments for the
effective implementation of the Act to be placed
before the Parliament every year. The
constitutional goal of equality for all the citizens of
this country can be achieved only when the rights
of the Scheduled Castes and Scheduled Tribes
are protected. The abundant material on record
proves that the authorities concerned are guilty of
not enforcing the provisions of the Act. The
travails of the members of the Scheduled Castes
and the Scheduled Tribes continue unabated. We
are satisfied that the Central Government and
State Governments should be directed to strictly
enforce the provisions of the Act and we do so.”

15. In Subhash Kashinath Mahajan v. State of
Maharashtra & Ors, 2018(4) SCC 454, a two judge bench of
this court held that the exclusion of anticipatory bail
provisions of the Code of Criminal Procedure (by Section 18
of the Act) did not constitute an absolute bar for the grant of
bail, where it was discernable to the court that the
allegations about atrocities or violation of the provisions of
the Act were false. It was also held, more crucially, that
public servants could be arrested only after approval by the
appointing authority (of such public servant) and in other
cases, after approval by the Senior Superintendent of Police.
It was also directed that cases under the Act could be
registered only after a preliminary enquiry into the
complaint. These directions were seen to be contrary to the
spirit of the Act and received considerable comment in the
public domain; the Union of India too moved this court for
their review. In the review proceedings, a three judge bench
of this court, in Union of India v. State of Maharastra,
2019(13) SCALE 280, recalled and overruled those
directions.
16. In the meanwhile, Parliament enacted the amendment
of 2018 (by Act No. 27 of 2019), which is the subject matter
of challenge in these proceedings. The clear intention of
Parliament was to undo the effect of this court’s declaration
in Subhash Kashinath Mahajan (supra). The provisions of
the amendment expressly override the directions in Subhash
Kashinath Mahajan, that a preliminary inquiry within seven
days by the Deputy Superintendent of Police concerned, to

find out whether the allegations make out a case under the
Act, and that arrest in appropriate cases may be made only
after approval by the Senior Superintendent of Police. The
Parliamentary intent was to allay the concern that this
would delay registration of First Information Report (FIR)
and would impede strict enforcement of the provision of the
Act.
17. The judgment of Mishra, J has recounted much of the
discussion and reiterated the reasoning which led to the
recall and review of the decision in Subhash Kashinath
Mahajan (supra); I respectfully adopt them. I would only
add that any interference with the provisions of the Act,
particularly with respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar
against arrest of public servants accused of offences
punishable under the Act, would not be a positive step. The
various reports, recommendations and official data,
including those released by the National Crime Records
Bureau, paint a dismal picture. The figures reflected were
that for 2014, instances of crimes recorded were 40401; for
2015, the crime instances recorded were 38670 and for
2016, the registered crime incidents were 40801. According
to one analysis of the said 2016 report, 422,799 crimes
against scheduled caste communities’ members and 81,332
crimes against scheduled tribe communities’ members were
reported between 2006 and 2016.
18. These facts, in my opinion ought to be kept in mind by

courts which have to try and deal with offences under the
Act. It is important to keep oneself reminded that while
sometimes (perhaps mostly in urban areas) false
accusations are made, those are not necessarily reflective of
the prevailing and wide spread social prejudices against
members of these oppressed classes. Significantly, the
amendment of 2016, in the expanded definition of ‘atrocity’,
also lists pernicious practices (under Section 3) including
forcing the eating of inedible matter, dumping of excreta
near the homes or in the neighbourhood of members of such
communities and several other forms of humiliation, which
members of such scheduled caste communities are
subjected to. All these considerations far outweigh the
petitioners’ concern that innocent individuals would be
subjected to what are described as arbitrary processes of
investigation and legal proceedings, without adequate
safeguards. The right to a trial with all attendant
safeguards are available to those accused of committing
offences under the Act; they remain unchanged by the
enactment of the amendment.
19. As far as the provision of Section 18A and anticipatory
bail is concerned, the judgment of Mishra, J, has stated that
in cases where no prima facie materials exist warranting
arrest in a complaint, the court has the inherent power to
direct a pre-arrest bail.
20. I would only add a caveat with the observation and
emphasize that while considering any application seeking
pre-arrest bail, the High Court has to balance the two

interests: i.e. that the power is not so used as to convert the
jurisdiction into that under Section 438 of the Criminal
Procedure Code, but that it is used sparingly and such
orders made in very exceptional cases where no prima facie
offence is made out as shown in the FIR, and further also
that if such orders are not made in those classes of cases,
the result would inevitably be a miscarriage of justice or
abuse of process of law. I consider such stringent terms,
otherwise contrary to the philosophy of bail, absolutely
essential, because a liberal use of the power to grant
pre-arrest bail would defeat the intention of Parliament.
21. It is important to reiterate and emphasize that unless
provisions of the Act are enforced in their true letter and
spirit, with utmost earnestness and dispatch, the dream
and ideal of a casteless society will remain only a dream, a
mirage. The marginalization of scheduled caste and
scheduled tribe communities is an enduring exclusion and is
based almost solely on caste identities. It is to address
problems of a segmented society, that express provisions of
the Constitution which give effect to the idea of fraternity, or
bandhutva (referred to in the Preamble, and statutes like the
Act, have been framed. These underline the social – rather
collective resolve – of ensuring that all humans are treated
as humans, that their innate genius is allowed outlets
through equal opportunities and each of them is fearless in
the pursuit of her or his dreams. The question which each of
us has to address, in everyday life, is can the prevailing
situation of exclusion based on caste identity be allowed to
persist in a democracy which is committed to equality and

the rule of law? If so, till when? And, most importantly, what
each one of us can do to foster this feeling of fraternity
amongst all sections of the community without reducing the
concept (of fraternity) to a ritualistic formality, a tacit
acknowledgment, of the “otherness” of each one’s identity.”
22. We now proceed to consider, whether Section 15A(3) of the
Amendment Act, 2015, could be termed as manifestly arbitrary.
23. The point of law required to be decided merits enunciation
of settled principles of interpretation of statutes for reading a
clear provision as per its own terms, reading it along with every
other provision in the chapter in which it appears, reading the
statute as a whole and deciphering the intention of the
legislature that propelled the enactment given the state of affairs
that prevailed before the enactment, the mischief that was
apparent and the mode in which the legislature sought to
remedy it. The 'Heyden's rule' or the 'Mischief rule', which is the
well settled principle of law, must be present to the mind of any
interpretor of such enactment.
24. “The crime problem is the overdue debt a society pays for
tolerating for years the conditions that breed lawlessness.” - Earl
Warren.
25. An aspect of victimology, the doctrine of victim protection,
victim representation and victim rehabilitation, is the subject
matter of the litigation on hand.

26. The criminal justice system has been designed with the
State at the center-stage. Law and order is the prime duty of the
State. It fosters peace and prosperity. The rule of law is to prevail
for a welfare State to prosper. The citizens in a welfare State are
expected to have their basic human rights. These rights are often
violated. The law and order is breached. A citizen is harmed,
injured or even killed as a result of the crime. He/she is a victim
of an act termed an 'offence' in the criminal justice system.
He/she seeks recourse to law and justice. Justice is given to
him/her upon upholding the rule of law. It is denied to him/her
upon any breach by the perpetrator of the violation or even by
the defender of his rights - the State. [See : Balasaheb Rangnath
Khade vs. The State of Maharashtra and others, Criminal Appeal
No.991 of 2011 decided on 27th April 2012]
27. A thin difference between the victim and the complainant
may first be noted.
1. Oxford English Dictionary, 11th Edition at page 1610
defines the victim as a person harmed, injured or killed as
a result of a crime, accident etc. Section 2 (wa) of the Code
of Criminal Procedure which was incorporated by the
Amending Act, 5 of 2009 defines a victim as :
“a person who has suffered any loss or injury
caused by reason of the act or omission for which
the accused person has been charged and the
expression "victim" includes his or her guardian or
legal heir;

2. Black's Law Dictionary, Eighth Edition at page 302
defines the complainant as the party who brings a legal
complaint against another.
3. Advanced Law Lexicon by P. Ramanatha Aiyar at page
926 defines (4) Cr. Appeals 991, 992, 331 & 854/11 the
complainant as a person or authority making a complaint
to the council regarding something.
28. Section 377 (1) of the United States Code is in respect of
Crime Victims' Rights Act (CVRA). The Rights of Crime Victims
are set out thus :
(a) Rights of Crime Victims.- A crime victim has the
following rights:
(1) The right to be reasonably protected from the
accused.
(2) The right to reasonable, accurate, and timely notice
of any public court proceeding, or any parole
proceeding, involving the crime or of any release or
escape of the accused.
(3) The right not to be excluded from any such public
court proceeding, unless the court, after receiving clear
and convincing evidence, determines that testimony by
the victim would be materially altered if the victim
heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public
proceeding in the district court involving release, plea,
sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney
for the Government in the case.
(6) The right to full and timely restitution as
provided in law.
(7) The right to proceedings free from unreasonable
delay.
(8) The right to be treated with fairness and with
respect for the victim's dignity and privacy.
29. The Victims of Crime Act in Canada sets out in Section
2 the statement of principles upon which the human rights
are granted to the victims for the victims' access to justice.
Section 2 of the Victims of Crime Act runs thus:
PART I STATEMENT OF PRINCIPLES
2. The following principles are adopted for the guidance
of persons in Declaration providing justice for victims of
crime: treatment (a) victims should be treated with
courtesy and compassion of victims and with respect for
their dignity, privacy and convenience;
redress (b) victims should receive prompt and fair
financial redress for the harm that they have suffered;
access to (c) victims should be informed of and should

have access to services services including social,
medical, legal and mental health and assistance;
assistance information (d) victims should be informed
about the progress of the investigation and prosecution
of the offence, court procedures, court the role of the
victim in court proceedings and the ultimate
procedures, etc. disposition of the proceedings;
victim (e) victims are entitled, where their personal
interests are concerns affected, to have their views and
concerns brought to the attention of the court where
consistent with criminal law and procedure;
safety (f) victims and their families should be protected
from intimidation, retaliation and harassment;
property (g) victims should have their stolen property
returned to them as soon as possible after recovery by
law enforcement authorities victim (h) victims are
entitled to prepare a victim impact statement impact
and have it considered by the court at sentencing;
statement information (i) victims are entitled to be
informed about the offender's n on status, including
release dates, parole eligibility, and offender probation
terms.
status, etc.
30. The General Assembly of the United Nations in its 96th
plenary meeting held on 29th November, 1985 set out the

Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power which recognizes and grants to
the victims, their families, witnesses and others who aid
them the rights in the area of access to justice and fair
treatment, Restitution and Compensation as basic human
rights.
31. In India in the past the Judges have attempted to accord
and confer the victim their rights in the criminal justice system.
In the case of Vijay Valia Vs. State of Maharashtra, 1987 Mh.L.J.
49 whilst considering the question of appointment of Special
Public Prosecutors, a Division Bench of the Bombay High Court
sounded the requirement of the Courts accepting the right of the
victim to partake in the criminal prosecution for doing the victim
justice. The Court in various paras observed thus :
“Both the State and the private party have a right to
prosecute the offender whether the offence is cognizable
or non-cognizable, and the prosecution, whether
launched by the private party or the State, is a
prosecution on behalf of the State.
The right to be heard includes the right to be represented
by an able spokesman of one's confidence. This right
belongs both to the accused and the complainant. It is
not only the accused who is in need of assistance and
protection of his rights but also the complainant. In fact,
it is to vindicate the rights and grievances of the
complainant and through him, of the State, that the
prosecution is launched- whether by the State or the

private party.
......whenever there is a request made by a private party
to engage an advocate of his choice to be paid for by him,
the request should be granted as a rule. The complainant
in such cases is either a victim of the offence or is related
to the victim or otherwise an aggrieved (11) Cr. Appeals
991, 992, 331 & 854/11 person. He has a right to be
heard and vindicated. As stated earlier, the right to be
heard implies a right to be effectively represented at the
hearing of the case. He has therefore a right to engage
an advocate of his choice. There is therefore no reason
why the State should refuse him the permission to
conduct the prosecution with the help of his advocate. If
there are any reasons for refusal, they should be stated
and communicated to him in writing.”
32. In the case of Nilabati Behera (Smt) alias Lalita Behera
Vs. State of Orissa & Ors. (1993) 2 SCC 746 the Supreme
Court enjoined the courts to 'evolve' new tools and mould
the remedies for harm done variously.
33. In that case the death of a son of 22 years in police
custody entitled a mother to compensation as an heir of the
"victim" by way of monetary amends and redressal by the
State since the death constituted violation of the
Fundamental Right to Life by the State's instrumentalities or
servants.

34. The Code of Criminal Procedure was sought to be
wholly amended in tune with the reforms suggested by the
well known Malimath Committee constituted by the Ministry
of Home Affairs, Govt. of India on 24th November, 2000
which submitted its Report popularly called the Malimath
Committee Report to the Ministry of Home Affairs in March,
2003. Though the Report sought to make more than the
usual cosmetic changes and indeed suggested
recommendations in the areas of victims participation in
trial and investigation and victim compensation by way of
the grant of Rights of Victims of Crimes, even that
committee's recommendations fell far short of the depth that
the victim's place in the Indian criminal justice system
merited.
35. The excerpts of the Report may be a guide to
understanding the course of action that the legislature was
to undertake :
(1) The victim not, being a party, have no role to play
in the trial except giving evidence as a witness.
(2) The committee suggests that among the related
parties in crime, the victim has the deepest interest in
the 'vindication of justice'. Question remains how far
the victim could co-operate with the prosecution when
he/she is in a traumatic stage of his/her life and
his/her interest is threatened by people behind the
actual culprit.

(3) Active participation of the victim during investigation
would be helpful in discovering the truth and if the victim
participates in the trial, the judge can maintain a neutral
position and need not become part of investigation
Machinery as in the Inquisitorial System.
36. An attempt at protecting the victim's rights and allowing
their prosecution has been made for the first time under the
proviso to Section 372 in Chapter XXIX dealing with appeals.
The noble principle :
"Hear those who cannot shout;
Listen to those who cannot speak"
for the first time found a foothold in our Criminal Justice System
in which all but the most affected were heard.
37. The victims, even today, have no semblance of rights at the
investigation stage and a feeble position at the trial stage of a
criminal prosecution.
38. As far back as in the year 1996, this Court, in the case of
Umaben W/o. Girish Namdar and another v. State of Gujarat
and others, reported in (1996)1 GLR 703, had the occasion to
consider, whether the complainant/informant should be
permitted to oppose the bail application preferred by the
accused. The court observed thus :

“Thus, taking into consideration the overall picture,
ordinarily it is indeed not necessary that the accused should
make the complainant/informant a party in his bail
application, however, if at the time of hearing the bail
application, the complainant side comes to know that such
bail application is filed and it desires to say something
special to bring it to the special notice of the Court then in
that case, it is always open to appear as a party in person
or engage a lawyer for that purpose to appraise the
concerned learned P.P. in charge of the case with whatever
latest instructions they want to pass on to the Court for
consideration but that is altogether a different thing. So far,
the picture is not that bad wherein the Court has lost
confidence in the Investigating Agency. If in future, if the
Court feels that the desired assistance is not forthcoming
and something is kept back from coming on the record from
the prosecuting agency, then in that case, the Court may
either on the request being made by the
complainant/prosecution witnesses or of its own join the
informant as a party to bail proceeding.”
39. We are not impressed by the submissions of Mr.Popat, the
learned counsel appearing for the writ-applicant, that Section
15A(3) of the Amendment Act, 2015, deserves to be struck down
as ultra vires Articles 14 and 21 of the Constitution of India
being manifestly arbitrary.
40. The issue, whether a law can be declared unconstitutional
on the ground of arbitrariness, has received the attention of the

Supreme Court in a Constitution Bench Judgment in the case of
Shayara Bano v. Union of India and others. R.F. Nariman and
U.U. Lalit, JJ. discredited the ratio of the following judgments,
i.e., (i) State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; (ii)
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 122,
(1996) 3 SCC 709, (2016) 2 SCC 445, (2017) 9 SCC 1). In the
above referred judgments of the Supreme Court, it was held that
a law cannot be declared unconstitutional on the ground that it
is arbitrary. The Judges pointed out a Larger Bench judgment in
the case of Dr. K.R. Lakshmanan v. State of T.N. & another and
Maneka Gandhi v. Union of India & another, where manifest
arbitrariness is recognized as the third ground on which the
legislative Act can be invalidated. The following discussion in
this behalf is worthy of note:
“87. The thread of reasonableness runs through the entire
fundamental rights chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of
law, would violate Article 14. Further, there is an apparent
contradiction in the three Judge Bench decision in McDowell
(State of A.P. v. McDowell and Co., (1996) 3 SCC 709) when
it is said that a constitutional challenge can succeed on the
ground that a law is disproportionate, excessive or
unreasonable, yet such challenge would fail on the very
ground of the law being unreasonable, unnecessary or
unwarranted. The arbitrariness doctrine when applied to
legislation obviously would not involve the latter challenge
but would only involve a law being disproportionate,
excessive or otherwise being manifestly unreasonable. All
the aforesaid grounds, therefore, do not seek to differentiate

between State action in its various forms, all of which are
interdicted if they fall foul of the fundamental rights
guaranteed to persons and citizens in Part III of the
Constitution.
88. We only need to point out that even after McDowell
(State of A.P. v. McDowell and Co., (1996) 3 SCC 709), this
Court has in fact negated statutory law on the ground of it
being arbitrary and therefore violative of Article 14 of the
Constitution of India. In Malpe Vishwanath Acharya, this
Court held that after passage of time, a law can become
arbitrary, and, 25 (1996) 2 SCC 226 26 (1978) 1 SCC 248
therefore, the freezing of rents at a 1940 market value under
the Bombay Rent Act would be arbitrary and violative of
Article 14 of the Constitution of India (see paras 8 to 15 and
31).
xx xx xx
99. However, in State of Bihar v. Bihar Distillery Ltd. (State
of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453), SCC at
para 22, in State of M.P. v. Rakesh Kohli (State of M.P. v.
Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481),
SCC at paras 17 to 19, in Rajbala v. State of Haryana
(Rajbala v. State of Haryana, (2016) 2 SCC 445), SCC at
paras 53 to 65 and in Binoy Viswam v. Union of India
(Binoy Viswam v. Union of India, (2017) 7 SCC 59), SCC at
paras 80 to 82, McDowell (State of A.P. v. McDowell and Co.,
(1996) 3 SCC 709) was read as being absolute bar to the
use of arbitrariness as a tool to strike down legislation

under Article 14. As has been noted by us earlier in this
judgment, McDowell (State of A.P. v. McDowell and Co.,
(1996) 3 SCC 709) itself is per incuriam, not having noticed
several judgments of Benches of equal or higher strength, its
reasoning even otherwise being flawed. The judgments,
following McDowell (State of A.P. v. McDowell and Co.,
(1996) 3 SCC 709) are, therefore, no longer good law.”
41. The historical development of the doctrine of arbitrariness
has been noticed by the Hon'ble Judges in Shayara Bano's case
(supra) in detail. It would suffice to reproduce paragraphs 67 to
69 respectively of the said judgment as the discussion in these
paragraphs provide a sufficient guide as to how a doctrine of
arbitrariness is to be applied while adjudging the constitutional
validity of a legislation.
“67. We now come to the development of the doctrine of
arbitrariness and its application to State action as a distinct
doctrine on which Sate action may be struck down as being
violative of the rule of law contained in Article 14. In a
significant passage, Bhagwati, J., in E.P. Royappa v. State
of T.N. stated:
“The last two grounds of challenge may be taken up
together for consideration. Though we have formulated
the third ground of challenge as a distinct and
separate ground, it is really in substance and effect
merely an aspect of the second ground based on
violation of Articles 14 and 16. Article 16 embodies
the fundamental guarantee that there shall be equality

of opportunity for all citizens in matters relating to
employment or appointment to any office under the
State. Though enacted as a distinct and independent
fundamental right because of its great importance as a
principle ensuring equality of opportunity in public
employment which is so vital to the building up of the
new classless egalitarian society envisaged in the
Constitution, Article 16 is only an instance of the
application of the concept of equality enshrined in
Article 14. In other words, Article 14 is the genus while
Article 16 is a species. Article 16 gives effect to the
doctrine of equality in all matters relating to public
employment. The basic principle which, therefore,
informs both Articles 14 and 16 is equality and
inhibition against discrimination. Now, what is the
content and reach of this great equalising principle? It
is founding faith, to use the words of Bose, J., a way
of life, and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all embracing
scope and meaning, for to do so would be to violate its
activist magnitude. Equality is a dynamic concept with
many aspects and dimensions and it cannot be
cribbed, cabined and confined within traditional and
doctrinaire limits. From a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies; one belongs to
the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both

according to political logic and constitutional law and
is therefore violative of Article 14, and if it effects any
matter relating to public employment, it is also
violative of Article 16. Article 14 and 16 strike at
arbitrariness in State action and ensure fairness and
equality of treatment. They require that State action
must be based on valid relevant principles applicable
alike to all similarly situate and it must not be guided
by any extraneous or irrelevant consideration because
that would be denial of equality. Where the operative
reason for State action, as distinguished from motive
inducting from the antechamber of the mind, is not
legitimate and relevant but is extraneous and outside
the area of permissible considerations, it would
amount to mala fide exercise of power and that is hit
by Articles 14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating
from the same vice: in fact the letter comprehends the
former. Both are inhibited by Articles 14 and 16.”
68. This was further flashed out in Maneka Gandhi v.
Union of India, where after stating that various fundamental
rights must be read together and must overlap and fertilise
each other, Bhagwati, J., further amplified this doctrine as
follows:
“7. Now, the question immediately arises as to what
is the requirement of Article 14: what is the content
and reach of the great equalising principle enunciated
in this article? There can be no doubt that it is a

founding faith of the Constitution. It is indeed the pillar
on which rests securely the foundation of our
democratic republic. And, therefore, it must not be
subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made truncate its
all-embracing scope and meaning, for to do so would
to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it
cannot be imprisoned within traditional and
doctrinaire limits. We must reiterate here what was
pointed out by the majority in E.P.Royappa v. State of
T.N., namely that: (SCC p. 38, para 85)
“85. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the
rule of law in a republic, while the other, to the whim
and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and
is therefore violative of Article 14.
Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or
non- arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in
order to be in conformity with Article 14. It must be

right and just and fair and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all
and the requirement of Article 21 would not be
satisfied.””
69. This was further clarified in A.L.Kalra v. Project and
Equipment Corpn., following Royappa and holding that
arbitrariness is a doctrine distinct from discrimination. It
was held: (A.L.Kalra case SCC p. 328, para 19)
“19. It thus appears well settled that Article 14
strikes at arbitrariness in executive/administrative
action because any action that is arbitrary must
necessarily involve the negation of equality. One need
not confine the denial of equality to a comparative
evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per
se arbitrary itself denies equal of (sic) protection by
law. The Constitution Bench pertinently observed in
Ajay Hasia case and put the matter beyond
controversy when it said: (SCC p. 741, para 16)
“16. Wherever therefore, there is arbitrariness in
State action whether it be of the legislature or of the
executive or of an authority under Article 12, Article 14
immediately springs into action and strikes down such
State action.
This view was further elaborated and affirmed in
D.S.Nakara v. Union of India. In Maneka Gandhi v.

Union of India it was observed that Article 14 strikes
at arbitrariness in State action and ensures fairness
and equality of treatment. It is thus too late in the day
to contend that an executive action shown to be
arbitrary is not either judicially reviewable or within
the reach of Article 14. The same view was reiterated
in Babita Prasad v. State of Bihar, SCC at p. 285, para
3.”
42. The aforenoted doctrine is, thus, treated as one of the
facets of both the Articles 14 and 21 respectively of the
Constitution of India.
43. In the case of State of Jammu & Kashmir v. Triloki Nath
Khosa and others, reported in AIR 1974 SC 1, the Constitution
Bench of the Supreme Court upheld the legislation classifying
the Assistant Engineers into Degree-holders and Diplomaholders
respectively for the purpose of promotion. It was
observed that the classification on the basis of the educational
qualifications made with a view to achieving the administrative
efficiency cannot be said to rest on any fortuitous circumstance
and one has always to bear in mind the facts and circumstances
in order to judge the validity of a classification. It was observed
that there is a presumption of constitutionality of a statute. The
burden is on one, who canvasses that certain statute is
unconstitutional, to set out facts necessary to sustain the plea of
discrimination and to adduce cogent and convincing evidence to
prove those facts. In order to establish that the protection of the
equal opportunity clause has been denied to them, it is not
enough for the petitioners to say that they have been treated

differently from others, not even enough that a differential
treatment has been accorded to them in comparison with the
other similarly circumstanced. Discrimination is the essence of
classification and does violation to the constitutional guarantee
of equality only if it rests on an unreasonable basis.
44. On the question of grounds on which a law is framed by
the Legislation, i.e. the Parliament or the State Assembly, the
decision of a three-Judge Bench of the Supreme Court in the
case of State of A.P. and others vs. McDowell and Co. and
others, reported in (1996)3 SCC 709, hold the field and was often
referred to and relied upon. In the said judgment, the Supreme
Court had opined that the grounds for striking down a statute
framed by the Legislature are only two, viz. (i) lack of legislative
competence, or (ii) violation of fundamental rights or any other
constitutional provision. If the enactment is challenged as
violative of Article 14, it can be struck down only if it is found
that it is violative of the equality clause or the equal protection
clause enshrined therein. Similarly, if an enactment is
challenged as violative of any of the fundamental rights
guaranteed by clauses (a) to (g) of Article 19(1), it can be struck
down only if it is found not saved by any of the clauses (2) to (6).
No enactment can be struck down by just saying that it is
arbitrary or unreasonable. 'Arbitrariness' is an expression used
widely and rather indiscriminately - an expression of inherently
imprecise import. Hence, some or the other constitutional
infirmities have to be found before invalidating an Act. An
enactment cannot be struck down on the ground that the court
thinks it unjustified. The Parliament and the Legislatures,
composed as they are of the representatives of the people and

supposed to know and be aware of the need of the people and
every aspect of what is good and bad for them. The court cannot
sit on the judgment over their wisdom.
45. In the recent judgment of the Supreme Court in the case of
Shayra Bano (supra), His Lordship Rohinton Fali Nariman, J.,
however, expressed a somewhat different view. It was observed
that a statute can also be struck down if it is manifestly
arbitrary. It was observed as under :
“101. It will be noticed that a Constitution Bench of this
Court in Indian Express Newspapers v. Union of India,
(1985) SCC 641, stated that it was settled law that
subordinate legislation can be challenged on any of the
grounds available for challenge against plenary legislation.
This being the case, there is no rational distinction between
the two types of legislation when it comes to this ground of
challenge under Article 14. The test of manifest
arbitrariness, therefore, as laid down in the aforesaid
judgments would apply to invalidate legislation as well as
subordinate legislation under Article 14. Manifest
arbitrariness, therefore, must be something done by the
legislature capriciously, irrationally and/or without
adequate determining principle. Also, when something is
done which is excessive and disproportionate, such
legislation would be manifestly arbitrary. We are, therefore,
of the view that arbitrariness in the sense of manifest
arbitrariness as pointed out by us above would apply to
negate legislation as well under Article 14.”

46. It is well settled that as long as the legislation has the
necessary competence to frame a law and the law so framed is
not violative of the fundamental rights enshrined in the
Constitution or any of the constitutional provision, the court
would not strike down the statute merely on the perception that
the same is harsh or unjust.
47. Thus, as held by the Supreme Court, manifest
arbitrariness must be something done by the Legislature
capriciously, irrationally and/or without adequate determining
principle. When something is done, which is excessive and
disproportionate, such legislation would be manifestly arbitrary.
48. As discussed above, Section 15A(3) could be said to have
been introduced with a definite object and the object is to
prevent atrocities upon the members of the Scheduled Castes
and Scheduled Tribes. Just because a provision of law in the
Amendment Act enables the victim to appear before the
competent court at all the stages of the proceedings by itself does
not render the same arbitrary. We are saying so, because the
impugned provision is not laying any fetters or unreasonable
restrictions upon the court when it comes to exercising
discretion as regards the grant of bail, etc.
49. The principles of law with regard to grant of bail remain the
same. We reiterate the settled principles of law as regards the
grant of bail thus :
(a) Whether there is or is not a reasonable ground for

believing that the applicant has committed the offence with
which he is charged;
(b) the nature and gravity of the charge;
(c) severity of degree of the punishment which might fall
in the particular circumstances in case of a conviction;
(d) the danger of the applicant's absconding if he is
released on bail;
(e) the character and means and standing of the
applicant;
(f) the danger of the alleged offence being continued or
repeated, assuming that the accused is guilty of having
committed that offence in the past;
(g) the danger of witnesses being tampered with;
(h) opportunity of the applicant to prepare his defence;
and
(i) the fact that the applicant has already been some
months in jail and that the trial is not likely to conclude for
several months at least.
(j) The court must evaluate the entire available material
against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the

case. The cases in which the accused is implicated with the
help of Sections 34 and 149 of the Indian Penal Code, the
court should consider with even greater care and caution
because over implication in the cases is a matter of
common knowledge and concern.
(k) Frivolity in prosecution should always be considered
and it is only the element of genuineness 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.
50. The aforesaid general principles of law with regard to the
grant of bail shall, in no manner, affect by virtue of the
provisions incorporated under Chapter IVA of the Amendment
Act, 2015.
51. It is true that the accused may not find the presence of the
victim before the court very convenient, more particularly, when
the accused is seeking bail. However, as stated above, the
principles of law with regard to the grant of bail will remain the
same, whether the accused is seeking bail in connection with an
offence of murder or any offence under the Atrocities Act.
52. We are trying to answer the vociferous argument of
Mr.Popat that Section 15A(3) of the Amendment Act
unnecessarily enforce or places restrictions as regards the
discretion of the court. We are afraid, we are not in a position to
accept this argument. All that Section 15A(3) provides is a right

to the victim to appear before the court and oppose the bail plea
of the accused.
53. We are also not impressed by the argument of Mr.Popat
that Section 15A(3) of the Amendment Act should be construed
as directory and not mandatory. As is evident from a plain
reading of the section quoted above, the victim must be served
with notice of the bail application and must be provided an
opportunity to be heard and advance argument. When a statute
specifically provides a right to the victim/dependent to be heard
at any proceedings in respect of bail, and if the court fails to
provide such opportunity, then there is an inherent failure of
justice. This procedure, in our opinion, cannot be bypassed. The
non-compliance of the provision of Section 15A(3) of the
Amendment Act would render an order null and void. If Section
15A(3) of the Amendment Act is to be construed as directory,
then the very object and purpose with which such provision is
enacted would got frustrated. In the aforesaid context, we may
refer to and rely upon the Karnatake High Court decision in the
case of Marenna @ Mareppa v. State [Criminal Petition
No.200315 of 2020, decided on 21st July 2020]. We quote the
relevant observations thus :
“Therefore, where a right of Audi Alterm Partem is conferred
on the victim or his dependents, then the court has to give
an opportunity/right of audience to the victim or his/her
dependent to hear them as to enable them to participate in
the proceedings including bail proceedings also. Therefore, a
victim or dependent has a right to be heard by the Court

enabling the victim or dependents to participate in any
proceedings in respect of not only bail proceedings but also
in the proceedings of discharge, release, parole, conviction
or sentence of an accused or any connected proceedings or
arguments and file written submission on conviction,
acquittal or sentencing of a case. The court is able to hear
the victim or dependent in respect of a proceedings as
enumerated in Sub-section (5) of Section 15-A of the SC/ST
Act only when the victim or dependent are made as parties
in the proceedings, otherwise it cannot be possible for the
court to hear the victim/dependents and to receive any
written submission as stated in the said provision. The
victim or dependent may participate either personally or
through an Advocate or through Public Prosecutor or Special
Public Prosecutor or appear himself/herself. As per Section
15 of the SC/ST Act, the Special Public Prosecutor or
exclusive Special Public Prosecutor are assigned the duties
to represent the State in genre but in specie on behalf of the
victim or dependent/complainant/first informant to
prosecute the case.
But the parliament in its wisdom by inserting Chapter IV-A
and Section 15-A of the SC/ST Act confers right of victims
and witnesses and more expressly provided the victim or
dependent to participate in any proceedings. Therefore,
Sub-section (3) of Section 15-A of the SC/ST Act only
enumerates giving such information to the victim or
dependents through Special Public Prosecutor or State
Government about any proceedings pending in the court.
But Sub-section (5) of Section 15-A of the SC/ST Act confers

a right on the victim or dependents to make them to
participate in a proceedings and to hear their submissions
and also to file written submissions in this regard in the
proceedings pending before the court. Therefore, unless the
victim or dependent as enumerated in Section 2(ec) of the
SC/ST Act is made a party in the proceedings in the case
pending before any court, it is not possible for the court to
hear whatever submission to be put forth by the victim or
dependents in the proceedings before the court. Therefore,
under these circumstances, making the victim or dependent
as party in the proceedings pending before any court is
necessary and mandatory.”
54. In LT.Col. Prithi Pal Singh Bedi v. Union of India, reported
in 1983(3) SCC 140, the Supreme Court held as follows :
“8. The dominant purpose in construing a statute is to
ascertain the intention of the Parliament. One of the well
recognised canons of construction is that the legislature
speaks its mind by use of correct expression and unless
there is any ambiguity in the language of the provision the
Court should adopt literal construction if it does not lead to
an absurdity. ....If the literal construction leads to an
absurdity, external aids to construction can be resorted to.
To ascertain the literal meaning it is equally necessary first
to ascertain the juxtaposition in which the rule is placed, the
purpose for which it is enacted and the object which it is
required to subserve and the authority by which the rule is
framed. This necessitates examination of the broad features
of the Act.”

55. In Nathi Devi v. Radha Devi Gupta, reported in AIR 2005
SC 648, the Supreme Court held that :
“The interpretation function of the Court is to discover the
true legislative intent, it is trite that in interpreting a statute
the Court must, if the words are clear, plain, unambiguous
and reasonably susceptible to only one meaning, give to the
words that meaning, irrespective of the consequences. Those
words must be expounded in their natural and ordinary
sense. When a language is plain and unambiguous and
admits of only one meaning no question of construction of
statute arises, for the Act speaks for itself. Courts are not
concerned with the policy involved or that the results are
injurious or otherwise, which may follow from giving effect
to the language used. If the words used are capable of one
construction only then it would not be open to the Courts to
adopt any other hypothetical construction on the ground that
such construction is more consistent with the alleged object
and policy of the Act. In considering whether there is
ambiguity, the Court must look at the statute as a whole
and consider the appropriateness of the meaning in a
particular context avoiding absurdity and inconsistencies or
unreasonableness which may render the statute
unconstitutional.”
56. In Nathi Devi (supra), it is further held that :
“It is equally well-settled that in interpreting a statute, effort
should be made to give effect to each and every word used

by the Legislature. The Courts always presume that the
Legislature inserted every part thereof for a purpose and the
legislative intention is that every part of the statute should
have effect. A construction which attributes redundancy to
the legislature will not be accepted except for compelling
reasons such as obvious drafting errors.”
57. Crawford on 'Statutory Construction' (Ed.1940, Art.261,
p.516) sets out the following passage from an American case
approvingly as follows :
“The question as to whether a statute is mandatory or
directory depends upon the intent of the legislature and not
upon the language in which the intent is clothed. The
meaning and intention of the legislature must govern, and
these are to be ascertained, not only from the phraseology of
the provision, but also by considering its nature, its design,
and the consequences which would follow from construing it
the one way or the other.”
58. In State of U.P. v. Baburam Upadhya, reported in AIR 1961
SC 751, the Hon'ble Mr.Justice Subbarao has observed that :
“The Court may consider inter alia, the nature and design of
the statute, and the consequences which would follow from
construing it the one way or the other; the impact of other
provisions whereby the necessity of complying with the
provisions in question is avoided; the circumstances,
namely, that the statute provides for a contingency of the
non-compliance with the provisions; the fact that the

non-compliance with the provisions is or is not visited by
some penalty; the serious or the trivial consequences, that
flow therefrom; and above all, whether the object of the
legislation will be defeated or furthered.”
59. In the same judgment, the Hon'ble Judge has further held
that when a statute uses the word 'shall', prima facie it is
mandatory but the court may ascertain the real intention of the
legislature by carefully attending to the whole scope of the
statute.
60. In May George v. Tahsildar, reported in (2010)13 SCC 98,
the Supreme Court stated the precepts, which can be summed
up and usefully applied by this Court, as follows :
“(a) While determining whether a provision is mandatory or
directory, somewhat on similar lines as afore-noticed, the
Court has to examine the context in which the provision is
used and the purpose it seeks to achieve;
(b) To find out the intent of the legislature, it may also be
necessary to examine serious general inconveniences or
injustices which may be caused to persons affected by the
application of such provision;
(c) Whether the provisions are enabling the State to do some
things and/or whether they prescribe the methodology or
formalities for doing certain things;

(d) As a factor to determine legislative intent, the court may
also consider, inter alia, the nature and design of the statute
and the consequences which would flow from construing it,
one way or the other;
(e) It is also permissible to examine the impact of other
provisions in the same statute and the consequences of
non-compliance of such provisions;
(f) Physiology of the provisions is not by itself a
determinative factor. The use of the words `shall' or `may',
respectively would ordinarily indicate imperative or directory
character, but not always.
(g) The test to be applied is whether non-compliance with the
provision would render the entire proceedings invalid or not.
(h) The Court has to give due weightage to whether the
interpretation intended to be given by the Court would
further the purpose of law or if this purpose could be
defeated by terming it mandatory or otherwise.”
61. In such circumstances referred to above, we hold that
Section 15A(3) of the Amendment Act is mandatory and not
directory.
62. Mr.Popat has placed strong reliance on the decision of the
Supreme Court in the case of Nikesh Tarachand Shah (supra).
However, we are afraid, this decision is of no assistance to the
writ-applicant.
63. The twin conditions under Section 45(1) for the offences
classified thereunder in Part-A of the Schedule was held
arbitrary and discriminatory and invalid in Nikesh Tarachand
Shah (supra). Insofar as the twin conditions for release of
accused on bail under Section 45 of the Act, the Supreme Court
held the same to be unconstitutional as it violates Articles 14
and 21 of the Constitution of India. Subsequently, Section 45
has been amended by Amendment Act 13 of 2008. The words
“imprisonment for a term of imprisonment of more than three
years under Part A of the Schedule” has been substituted with
“accused of an offence under this Act…..”.
64. Although there has been an amendment to Section 45 of
the PMLA Act after the decision in the case of Nikesh Tarachand
Shah (supra), there is no subsequent decision of the Supreme
Court holding the said two conditions to be constitutionally valid
even when brought back by way of an amendment. However, we
are not concerned with the same having regard to the subject
matter of the present litigation. We may only say that Section 45
of the Act was declared unconstitutional as it placed
unreasonable restrictions upon the court for the purpose of
considering the plea of bail. The Supreme Court noticed that
there was manifest arbitrariness in the provision as the Public
Prosecutor had to be given an opportunity to oppose the
application for release on bail and where the Public Prosecutor
would oppose the bail application, the court would have to reach
to the satisfaction that there are reasonable grounds for
believing that the accused is not guilty of such offence and was

not likely to commit any offence while on bail. It is this
unreasonableness which weighed with the Supreme Court in
striking it down being violative of Articles 14 and 21 of the
Constitution of India.
65. Our final conclusions may be summarised as under :
(1) Section 15A(3) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment Act,
2015 (1 of 2016) is not ultra vires Articles 14 and 21 of the
Constitution of India.
(2) Section 15A(3) of the Amendment Act, 2015, cannot be
termed as manifestly arbitrary.
(3) Section 15A(3) of the Amendment Act, 2015, has to be
construed as mandatory and not directory. The
non-compliance of the said provision would render the
order null and void.
(4) Section 15A(3) of the Amendment Act, 2015, in no
manner imposes any unreasonable restrictions or fetters
on the discretion of the competent court, for the purpose of
considering the plea of bail. The general principles with
regard to grant of bail would continue to apply even in
cases under the Atrocities Act.
(5) The right of a person, who is accused of committing
only bailable offence or offences, if any, under the Act, to
be released on bail, is absolute in view of the provisions

contained in Section 436(1) of the Code of Criminal
Procedure. There is no provision in the Act which curtails
the right of an accused to get bail in a case of bailable
offence. The provisions contained in Section 15A(5) does
not, in any manner, affect the absolute right of a person,
who is accused of only bailable offence or offences, to be
released on bail.
(6) When a person is accused of committing only bailable
offence or offences under the Act, it is not mandatory to
grant opportunity of hearing to the victim or the dependent
as provided under Section 15A(5) of the Act in a proceeding
relating to granting bail to such accused. However, before
the court decides to decline such opportunity to the victim
or the dependent, the court shall thoroughly verify and
ascertain that the allegations against the accused disclose
commission of only bailable offence or offences under the
Act, by him.
66. In view of the aforesaid discussion, this writ-application
fails and is hereby rejected.
(VIKRAM NATH, CJ.)
(J. B. PARDIWALA, J.)

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