Pushpa Nelson vs State

This is an application for anticipatory bail. The applicant is a lady. The complainant is her brother's wife.

On 11th December, 2019, the complainant lodged a First Information Report with the police, accusing the applicant of having abused her by using the words "junglee nicobari".

The alleged offence is under section 3(1)(u) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989 which is as follows:

"3. Punishments for offences of atrocities.-[(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(u) by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes;"

At the outset, Mr.Tabraiz submits that no offence is disclosed because this section envisages creation of enmity, hatred or ill-will against the members of the scheduled castes or the scheduled tribes. He submits that an offence is committed only if there is an organized attempt by spoken or written words or by signs by a person to create those ill-feelings at large against the scheduled castes or the scheduled tribes community. In this case there is only an alleged personal attack which is not an offence under the sa     id sub section.

The main legal point in this case is whether an application for anticipatory bail is maintainable in view of section 18 of the said Act which is 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."

Mr.Rao submits that in view of this section and the subsequent amendment to section 18 by insertion of section 18(A) to the following effect:

" (1) For the purposes of this Act,--

(a) preliminary enquiry shall not be required for registration of 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.

(2) 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," this application is not maintainable.

The above section came up for consideration and interpretation by the Supreme Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra reported in (2018) 6 SCC 454 where the Supreme Court held as follows:-

"79.2 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 N. T. Desai and clarify the judgments of this Court in Balothia and Manju Devi;

79.3.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 SSP 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.

79.4.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.

79.5. Any violation of Directions 79.3 and 79.4 will be actionable by way of disciplinary action as well as contempt.

79.6. The above directions are prospective."

This judgment was subsequently reviewed by the same Court on 1st October, 2019 in Union of India vs. State of Maharashtra and others in the following manner:-

"67. We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of down-trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India. Resultantly, we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No.(v) also vanishes. The review petitions are allowed to the extent mentioned above."

This has the effect of setting aside paragraphs 79.3, 79.4 and 79.5 of the said original judgment.

It is clear from the law laid down by the Supreme Court that where the police or the investigating agency has not been able to form a prima facie opinion about the commission of an offence either on receiving credible information or on reasonable suspicion under Section 41(1) of the Code of Criminal Procedure, 1973 an application for anticipatory bail is maintainable. Or in other words the accusation should prima facie be well founded, for the operation of Section 18.

On the submission of Mr.Rao we find in this case that there is an allegation by the State against the accused that she is not cooperating in the investigation. She is now residing in Chennai and not making herself available for investigation. The case diary is incomplete. Thus, the police has not been able to make an effective inquiry and form a prima facie opinion.

In those circumstances we are unable to consider the application for anticipatory bail at this stage. Mr.Tabraiz for the applicant assures the Court that his client will report for investigation within seven days from date. The police will thereupon proceed with the investigation and complete the case diary containing a note or report in terms of the said Supreme Court judgment whether a prima facie case disclosing an offence has been made out by the complainant, by 31st January, 2020.

List this application on 5th February, 2020.

Till 18th February, 2020 or until further order whichever is earlier, the police or the investigating agency shall not arrest the accused without the leave of the Court.

Let a plain copy of this order duly countersigned by Assistant Registrar(Court) be furnished to learned Public Prosecutor on usual undertakings.