PRATHVI RAJ CHAUHAN Vs. UNION OF INDIA
SUPREME COURT OF INDIA
Prathvi Raj Chauhan
UNION OF INDIA
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ARUN MISHRA,J. -
(1.)The petitioners have questioned the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as
well as section 18A, are reproduced hereunder:
"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." "Section 18A. (i) For the purpose of this Act,-
(a) preliminary enquiry shall be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.
(ii) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."
(2.)It is submitted that section 18A has been enacted to nullify the judgment of this Court in Dr. Subhash Kashinath Mahajan v. The State
of Maharashtra & Anr., (2018) 6 SCC 454, in which following
directions were issued:
"83. Our 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. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);
(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 scrutinised 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 directions (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective."
(3.)It has been submitted that this Court has noted in Dr. Subhash Kashinath (supra) that the provisions of the Act of 1989 are being
misused as such the amendment is arbitrary, unjust, irrational and
violative of Article 21 of the Constitution of India. There could not have
been any curtailment of the right to obtain anticipatory bail under
section 438 Cr.PC. Prior scrutiny and proper investigation are
necessary. Most of the safeguards have been provided under the Act of
1989 to prevent undue harassment. This Court has struck down the provision of section 66A of the Information Technology Act on the
ground of violation of fundamental rights; on the same anvil, the
provisions of section 18A of the Act of 1989 deserve to be struck down.
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