Untouchability is the greatest curse our human society has seen so far. In India it was implemented by cast in the rest of the world it was put through the difference of color. India is one of the biggest democratic country crowned by one of the lengthiest constitution in the world and it is the matter of pride that an illustrious luminary behind this constitution was himself from untouchable cast. He is none other than Dr. Babasaheb Ambedakar who is acknowledged as “Sculptor of Indian Constitution.”

This Indian constitution declares India a sovereign, socialist, secular, democratic republic assuring its citizens of justice, equality and liberty and endeavors to promote fraternity among them. Article 17 of Indian Constitution states the abolishment of ‘untouchability’ also forbid all such practices. In 1955 Untouchability (Offences) Act 1955 came into force to serve the purpose of Article 17. The said act is renovated as “Protection of civil rights Act in 1976 but in spite of the enactment of this act the socio-economic scenario for schedule cast and schedule tribes’ people remained in fragile and imperiled conditions. These people were vulnerable to social violence, insults and assassinations. The civil protection act and provisions of Indian penal code were not adequate to cover the indignities and harassment they were facing.

Taking into consideration the above facts Indian Parliament has passed ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 & Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995. (Hereinafter called as Atrocity Act for the sake of convenience). If we read the objects & reason of this act it is depicted as

 “An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled 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”

-Statement of objects & reason of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989  

The intention behind enforcement of this act was to enable the Schedule Cast and Schedule Tribes’ people to take protective legal measure against an act of indignity, humiliation and violence against them.29 years have been passed when the act was enforced. Over the period of time it has gain the social momentum in both positive and a negative ways.

Talking about current scenario on and average 1,100- 1,200 cases is conducted by special courts every year in country under atrocity act. 90% cases suppress under the piles of pendency and 2%- 3% cases saw the conviction rate for the genuine reason it has been filed. Besides many cases dies natural death due to lack of evidence, compromise between the parties, lack of witnesses, and no cognizance taken by police machinery. The reasons for filing cases are primarily love affairs, property disputes, disputes over land encroachments, disputes over historical figures, religions and sects.

From Bhaiyyalal Bhotamange to Nitin Aage Maharashtra saw the rage and heinousness of inhumanity where the Dalit families have been brutally murdered in enraged mob violence. No one would dare to say that 100% cases filed under the Atrocity law are false. They are genuinely true and invariably pending at the court of law.

Talking about any legislature where there is law there are always loopholes. No law is perfect and certain safeguards are required to prevent the abuse of justice.
As per the Annual Report 2016-2017 published by the Department of Social Justice & Empowerment, Ministry of Social Justice and Empowerment, Government of India 5347 cases under Atrocity Act were found to be false. It is pertinent to note that in the year 2015, out of 15638 cases decided by the courts, 11024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4119 cases resulted in conviction.

In 2015 where more than 75% cases under Atrocity Act were closed down by the investigation agencies due to acquittal, withdrawn or compounding of the offences. When the question has been asked in parliament about what could have been done to the person who misused the provision of this act, Government refused to provide any solution merely stating applying any punishment to any complainant who belong to Schedule Caste or Schedule Tribe is against the spirit of Atrocity Act.

So now the question arise who will really defend the victim who is trapped under the false implications of atrocity?
Few days before Supreme Court laid down the directives to prevent the misuse of sec. 498 A of Indian Penal Code. Although it is not at all disputed that women are victimized for the demand of atrocious dowry but still there are distinguishing numbers of fake cases against husband and in laws have been observed by the court. Therefore court has given the direction for no immediate arrest in 498A cases to investigation agencies in its latest judgment of “Rajesh Sharma & ours. V/s. State of U.P. & ours. Special Leave Petition (Crl.) No.2013 of 2017.”

Similar ground has been taken by the Supreme Court in the latest judgment dealing under the Atrocity Act. Now the person will not be immediately arrested if the case is registered against him under the Atrocity Act.
The Court has rightly stated that 

Supreme Court said in while expressing it's concern
“Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent? ‘whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?’ The answer to this question is undoubtedly and obviously ‘No”

Supreme Court while delivering judgment in Dr. Subhash Kashinath Mahajan v/s. t state of Maharashtra and anr ( CRIMINAL APPEAL NO.416 OF 2018)

Supreme Court Bench consisting Justice Uday Lalit and A. K. Goyal’s gave an important verdict in this regard, which is a thing of relief to the common people including the government officials. As per the judgment if senior officer of investigation agency permits then only action and arrest can be taken against any government official under the Atrocity Act. This decision is given in the case as cited follow.

CRIMINAL APPEAL NO.416 OF 2018
(Arising out of Special Leave Petition (Crl. No.5661 of 2017)

DR SUBHASH KASHINATH MAHAJAN
VERSUS
THE STATE OF MAHARASHTRA AND ANR

FACTS OF THE CASE

Bhaskar Karbhari Gaikwad who is an employee of Pharmaceutical Engineering College in Karad filed the case under the Atrocity Act against the Principal Dr. Satish Bhise and Head of the Department Dr. Kishor Burade in 2006 for alleged entries made against the Bhaskar Karbhari Gaikwad in his annual confidential report about his conduct. Mr. Gaikwad lodged an FIR against these two senior officials at Karad police station but as the Principal and the HOD happened to be employee of state government permission under sec. 197 of Criminal procedure code was needed to prosecute them. That is why the investigation officer applied for the permission to Directorate of Technical education, Dr. Subhash Kashinath Mahajan. Consequently he refused the sanction for prosecution under his official capacity. Fresh FIR lodged against Dr. Subhash Mahajan under the Atrocity Act on the allegation that Director of Technical Education cannot give your refuse sanction as it do not come under his official capacity. This was the reason to file case against him under the Atrocity Act. Dr. Mahajan granted an anticipatory bail in the said case and then applied to Mumbai high court for quashing of the procedure under sec. 482 of Criminal Procedure Code stating that the he had taken bonifide decision to pass an administrative order under his official capacity which cannot amount to an offence even if the administrative order seems to be erroneous prima facie. Mumbai High Court rejected his plea and dismissed the petition. Therefore he filed the special leave petition in the Supreme Court which is consequently allowed.

OBSERVATIONS OF THE COURT

While delivering the judgment Bench has considered many social and political aspects. The Court has observed that

1.Cases under the Atrocity Act has a huge filing rate after any elections. Be it the election of village, Panchayat, District, state or central. The provisions of the act are misused for settling personal and political vendetta, seniority disputes, property disputes and employment disputes. Cases have been largely filed against the public servants, quasi-judicial, judicial authorities with evasive motives of personal interests.

2.Atrocity Act has been passed to prevent the violence and civil rights of SC and ST class but at the other hand it is not an instrument of blackmailing or crash of personal revenge. It has no any deterrent effect which can bar any public servant from discharging his duty under his official capacity.

3.Under the commission of heinous crimes like murder, dacoity, rape accused can pray for anticipatory bail under section 438 of Criminal Procedure Code but person cannot prey for anticipatory bail due to bar of sec. 18 of Atrocity Act. This is the major reason why there should be authoritative guard to watch and prevent the potential misuse of the provisions.

4.Courts in India do possess a power which is not known to the English courts and this power has given to them by Constitution itself. In India legislature pass the law but courts not only implement those laws but also examine it’s competence as well as consistency with fundamental rights. Any judicial review which is given by the Supreme Court according to basic structure of constitution is mandatory to all the courts within the territory of India.

5. As per as Atrocity Act is concerned if it is seen that allegations against accused are prima facie motivated and false there will not be any bar of sec. 18 and the person can apply for anticipatory bail in such cases in spite of validity of Section 18 of the Atrocities Act being upheld in the precedents.

6.Secularism is a basic feature of the Constitution. Irrespective of race, cast, creed or religion the Constitution guarantees equality to all its citizens. Therefore everyone is entitled in full equality to a fair and public hearing by an independent judicial authority for any criminal charge against him.

Supreme Court has laid down the guidelines in this case that no any public servant or public official can be arrested without prior approval of the appointing authority who appointed him. Same shall be implemented in case of common people. No any common man will be arrested in Atrocity case without pre- approval of Superintendent of Police. S.P. shall give his permission in appropriate cases after conducting the preliminary inquiry with his reasons recorded. Most important thing which you need to know that this judgment has prospective effect. Cases which are already pending under the Atrocity Act before the date of this judgment shall not have any effect and this judgment is not binding upon them. Hereinafter fresh cases filed under the Act shall come under the preview of this judgment.

THE RATIO OF THE JUDGMENT GIVEN BY SUPREME COURT.

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. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar and Dr. N.T. Desai and clarify the judgments of this Court in Balothia and Manju Devi ;

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.

Supreme Court in Dr Subhash Kashinath Mahajan v/s. t state of maharashtra and anr ( CRIMINAL APPEAL NO.416 OF 2018)

Please follow and like us:
5