SC/ ST Act being abused, prior sanction must for arrest, says Supreme Courthttps://indianexpress.com/article/india/no-immediate-arrest-of-public-servants-in-cases-under-sc-st-act-rules-out-supreme-court-5104265/

SC/ ST Act being abused, prior sanction must for arrest, says Supreme Court

A bench of Justices Adarsh Goel and U U Lalit ruled out that before arresting a public servant under the SC/ST Act, a preliminary probe by an officer not below the rank of deputy superintendent is a must.

SC/ ST Act being abused, prior sanction must for arrest, says Supreme Court
The Supreme Court of India (Express Photo Tashi Tobgiyal)

NOTING THAT there were “instances of abuse” of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by “vested interests” for political or personal reasons, the Supreme Court on Tuesday laid down stringent safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.

“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,” ruled a bench of Justices A K Goel and U U Lalit.

If the accused is a public servant, he can only be arrested with the permission of the appointing authority. And if the accused is not a public servant, prior permission of the Senior Superintendent of Police of the district will be required. The reason for granting permission for arrest should be recorded in writing and handed to the accused and the concerned court, said the bench.

The bench was hearing a petition filed by Subhash Kashinath Mahajan, who was Director of Technical Education, Maharashtra, against a Bombay High Court order. The HC had rejected Mahajan’s plea challenging an FIR against him for denying sanction to prosecute an official of the department, who had made adverse remarks in the ACR of an employee.

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The bench quashed the case, saying the proceedings were a “clear abuse of process of court”. It also noted the “abuse” of the law in the nearly three decades of its operation.

“It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in panchayat, municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes. It may be noticed that by way of rampant misuse, complaints are largely being filed particularly against public servants/ quasi judicial/ judicial officers with oblique motive for satisfaction of vested interests,” said the bench.

“The Legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance” or “to deter public servants from performing their bona fide duties,” it said.

“This court is not expected to adopt a passive or negative role and remain a bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights… Role of this court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute,” it said.

Justifying its decision to allow anticipatory bail where there was no prima facie case, the bench said: “Unless exclusion of anticipatory bail is limited to genuine cases… there will be no protection available to innocent citizens. Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution.”

Appearing for the Centre, Additional Solicitor General Maninder Singh had said that anticipatory bail could be allowed if no prima facie case was made out.

The bench also referred to the National Crime Records Bureau (NCRB) data for 2015, which said that closure reports had been filed in 15-16 per cent of the complaints under the Act. And over 75 per cent of such cases taken up by the courts had resulted in acquittals/ withdrawal or compounding of the cases.

“We are satisfied, in the light of statistics already referred to as well as cited decisions and observations of the standing committee of Parliament, that 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,” said the bench.

It said the working of the Act “should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values”. “Secularism is a basic feature of the Constitution. Irrespective of caste or religion, the Constitution guarantees equality in its preamble as well as other provisions including Articles 14-16. The Constitution envisages a cohesive, unified and casteless society. We are thus of the view that interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require a check on false implication of innocent citizens on caste lines,” it ruled.