DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA & Anr.

3.8 It is difficult to hold that the legislature wanted exclusion of judicial function of going into correctness or otherwise of the allegation in a criminal case before liberty of a person is taken away. The legislature could not have intended that any unilateral version should be treated as conclusive and the person making such allegation should be the sole judge of its correctness to the exclusion of judicial function of courts of assessing the truth or otherwise of the rival contentions before personal liberty of a person is adversely affected. It is thus patent that in cases under the Atrocities Act, exclusion of right of anticipatory bail is applicable only if the case is shown to bona fide and that prima facie it falls under the Atrocities Act and not otherwise. Section 18 does not apply where there is no prima facie case or to cases of patent false implication or when the allegation is motivated for extraneous reasons. [Paras 73, 74] [949-E-H] A B C D E F G H 886 SUPREME COURT REPORTS [2018] 4 S.C.R. A Issue of safeguards against arrest and false implications

4.1 The under privileged need to be protected against any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This Court must enforce such a guarantee. Law should not result in caste hatred. The preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity. There is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court. Normal rule is to register FIR if any information discloses commission of a cognizable offence. There are however, exceptions to this rule and cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held. Such inquiry must be time-bound and should not exceed seven days. Even if preliminary inquiry is held and case is registered, arrest is not a must. [Paras 75, 76, 77, 79 and 80] [950-B-E; 952-G]

4.2 Accordingly, it is directed that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated. [Para 81] [953-C-E] B C D E F G H DR. SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANR. 887 Consideration of present case

#5. The proceedings against the appellant are liable to be quashed. [Para 82] [953-E-F] Conclusions

#6. Conclusions are as follows: i) Proceedings in the present case are clear abuse of process of court and are quashed. ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. The view taken and approach of the Gujarat High Court in Pankaj D Suthar and Dr. N.T. Desai is approved and the judgments of this Court in Balothia and Manju Devi are clarified; iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective. [Para 83] [953-F-H; 954-A-D]