Decided on February 26,2019

Pradipta Biswas Appellant


JOYMALYA BAGCHI,J. MANOJIT MANDAL,JJ. - (1.) Journalistic endeavour of the petitioner to expose the agonies and deprivations of the members of a scheduled caste community is the subject matter of the instant criminal case. Petitioner being the publisher of a Bengali newspaper where the news item was published seeks protection from arrest in the instant case. Subject matter of the First Information Report (for short 'FIR') is a complaint lodged by a member of the Sabar community alleging that the publication of a news item titled "Mrittu Noi Sabarpallir Chinta Bhat". It is not death, but denial of food which troubles Sabar community has assaulted the members of the said community and has unsettled the peace and tranquility in the area and adversely affected developmental work amongst the community. The contents of the aforesaid news item refer to a number of deaths in the Lodha Sabar Community which had caused consternation in the area. Enquiries by way of investigative journalism revealed not only lack of medical facilities but denial of basic amenities like drinking water, housing, lack of job cards and voters cards etc. amongst the members of the community. It was also noted in the said report while the local administration blamed the members of the Sabar Community with regard to their unwillingness to avail modern medical facilities, the Secretary of Lodha Sabar Community, however, blamed indifference and lack of initiative on the part of the administration to provide such facilities. We are at a loss as to how the aforesaid publication which has essentially brought to light the agonies and difficulties faced by the members of the aforesaid community in the face of the State apathy could be conceived of as an insult or intimidation or an act to promote feelings of enmity, hatred or ill-will against the members of the said community disclosing offences under section 3(1)(r) (u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to 'Act of 1989').
(2.) Learned Public Prosecutor has argued that the FIR was registered by a member of the aforesaid community expressing his anguish with regard to the contents of the news report. Number of statements of other members of the Sabar Community expressing similar sentiments were also relied upon. That apart, learned Public Prosecutor vehemently contended that the application for anticipatory bail was not maintainable. In view of Section 18 A incorporated in the Act of 1989 after the judgment of the Apex Court in Dr. Subhash Kashinath Mahajan vs. State of Maharashtra and Anr. reported in (2018) 6 SCC 454. In view of the directions given in the aforesaid judgment relating to registration of FIR and arrest of accused persons under the Act of 1989, the legislature to the Act introduced section 18A which expressly obviated the requirement of preliminary enquiry prior to registration of FIR, or approval for arrest if any, save and except the procedure under the Act or the Code. It is also engrafted a bar to the applicability of Section 438 of the Code to a case under this Act notwithstanding any judgment or order or direction of any Court. Comparing the words used in Section 18A, namely, 'case under this Act' with that Sections 18 thereof, namely, "a case involving accusation of having committed an offence under this Act", it is argued that there is no scope of any scrutiny relating to the applicability of the Act once a F.I.R. has been registered under the said Act. Hence, limited enquiry with regard to disclosure of prima facie case as held in various judgments is not permissible in view of the aforesaid amendment. It is also brought to our notice though the constitutional validity of the aforesaid amendment is a subject matter of challenge before the Apex Court, the said court has not passed any order restraining the operation of Section 18A of the Act.
(3.) We have given anxious considerations to the objections raised by the State both to the maintainability of this petitioner as also on merits of the case. The Act of 1989 was promulgated, inter alia, to prevent commission of offence of atrocities against the members of the Scheduled Caste and Scheduled Tribe committees, to provide for special courts for trial of such offences and for relief and rehabilitation to victims of such offences and other matters connected or incidental thereto. Section 3 of the Act defined various offences of atrocities and punishment thereof. Section 14 provided for exclusive special courts to be set up by the State in concurrence to the Chief Justice of the High Court to try such offences on a day to day basis and to complete such trial within two months. Section 15 provided for appointment of special public prosecutors from amongst advocates having experience of not less than seven years. Sections 15A provided for protection of victims and witnesses. Section 18 laid down a bar to the applicability of Section 438 of the Code in a case involving arrest of any person on an accusation having committed offences under the Act. Section 19 provided that section 360 of the Code or the provisions of the Prohibition of Offences Act shall not apply to persons guilty of an offence under the Act. Section 20 provided for overriding effect of the provisions of the Act over any law for the time being in force or any custom or usage or instrument arising from such law. The scheme of the Act, therefore, was to create substantive offences of atrocities against the members of the Scheduled Caste and Scheduled Tribe community and for an expeditious and effective procedure for trial of such offences. The Act was a legislative endeavour on the part of the Parliament to give expression to the constitutional mandate of abolition of untouchability under Article 17 of the Constitution and to provide special protection to members of Scheduled Caste and Scheduled Tribe community for acts of atrocities and other crimes. These constitutional imperatives and the acknowledged backwardness of members of the Scheduled Caste and Scheduled Tribe and the continual torture, atrocities and discrimination suffered by its members down the ages must be borne in mind when one embargoes to interpret any provision of the Act. The vice of discrimination, ostracism and neglect which the legislator sought to ameliorate by introduction of penal provisions must be given its fullest expression in implementation of the Act. One must keep this legislative intent in mind while examining the statutory restrictions imposed on the applicability of Section 438 of the Code of Criminal Procedure. Such restriction was initially engrafted in section 18 of the Act of 1989, which reads as follows:- "18. Section 438 of the Code not to apply to persons committing an offence under the Act.--Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act." ;

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