Ajeet Jain vs State Of Madhya Pradesh

This is an appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against the impugned order

dated 22.1.2018 passed by Special Judge, (S.C. & S.T. (Prevention of Atrocities) Act) Jabalpur in B.A.No.170/2018 whereby the court below has

dismissed the application filed by the appellant under Section 438 Cr.P.C. The appellant is apprehending his arrest for the offence under Sections 294,

323, 506/34 of the I.P.C. and section of the 3(2)(va) and 3(1) (d) of the SC and ST (Prevention of Atrocities) Act, 1989, (hereinafter referred to as

‘the Act of 1989’) in Crime No.7/2018 registered at Police Station Chargawan, District Jabalpur (M.P.).

According to the prosecution story, it is alleged that the appellant is the owner of the bus on which the complainant was working as a Driver. It is

alleged that while he demanded arrears of salary, he was abused publicly by referring to his caste and was also slapped and threatened to life. The

complainant belongs to the Scheduled Tribe community.

Learned counsel for the appellant submitted that the appellant is innocent.  As the complainant was preventing the bus to move and making

quarrel, he prevented the complainant from making nuisance. Neither he abused or threatened the complainant nor assaulted him. It is further

submitted that all the offences except the offence punishable with the Act of 1989 are bailable. It is alleged that in order to deprive the appellant to

exercise his right to bail, he has been falsely implicated.  It is further submitted that Hon’ble the Apex Court in the case of Dr.Subhash

Kashinath Mahajan Vs. State of Maharashtra and another, passed in Cr.Appeal No.416/2018 decided on 20.3.2018 from paragraphs 81 onwards has

issued certain directions in order to prevent misuse of the provisions of the Act of 1989. On these grounds, prayer is made to allow the appeal and

either enlarge the appellant on anticipatory bail or issue necessary directions to the I.O. concerned to follow the guidelines/directions issued by the

Apex court in the case of Dr.Subhash Kashinath Mahajan (supra) before arresting the appellant.

On the other hand, learned G.A. opposed the appeal stating that there is prima facie material to establish the offences punishable under the provisions

of the Act of 1989. Hence, it cannot be said that it is a case of misuse of the provisions of the Act of 1989 or causing unnecessary harassment to

the appellant. Hence, the appeal as well as prayer for anticipatory bail be rejected.

Having considered the contention advanced by learned counsel for the parties and on perusal of the case diary, in the present case there is an

averment in the FIR with regard to commission of the offence punishable with the alleged provisions of the Act of 1989 and there is also evidence on

record to support the allegations. There is no other material to arrive at the conclusion that FIR has been lodged malafidely. In such

circumstances, in view of the provisions of section 18 of the Act of 1989, the appellant is not entitled to get the benefit of anticipatory bail.Â

However, in view of the provisions of section 18 of the Act of 1989, an accused, who is not entitled to get the benefit of anticipatory bail, cannot be

denied the protection available under the law with regard to unjustified and unwarranted arrest, as before arresting an accused, it is the duty of the

police officer to examine and record the reasons of arrest in writing subject to scrutiny of the Magistrate/Court. Hon’ble the Apex court in the

case of Dr.Subhash Kashinath Mahajan (supra) has considered the principles and guidelines earlier laid down by the Hon’ble Apex court with

regard to the duties of the Police Officer while arresting an accused. Reproduction of the aforesaid discussions by the Apex court in Dr.Subhash

Kashinath Mahajan (supra) would be beneficial for the guidance of the police officers. The relevant paragraphs are as under :-

“34. The law has been summed up in a decision in Rajesh Kumar versus State, (2011) 13 SCC 706 as follows:

“62. Until the decision was rendered in Maneka Gandhi (supra), Article 21 was viewed by this Court as rarely embodying the Diceyian concept of

rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some

sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example given by Justice S.R.

Das in his judgment in A.K. Gopalan (supra) that if the law provided the Bishop of Rochester 'be boiled in oil' it would be valid under Article 21. But

after the decision in Maneka Gandhi (supra) which marks a watershed in the development of constitutional law in our country, this Court, for the first

time, took the view that Article 21 affords protection not only against the executive action but also against the legislation which deprives a person of

his life and personal liberty unless the law for deprivation is reasonable, just and fair and it was held that the concept of reasonableness runs like a

golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The procedure

for depriving a person of his life and personal liberty must be eminently just, reasonable and fair and if challenged before the Court it is for the Court to

determine whether such procedure is reasonable, just and fair and if the Court finds that it is not so, the Court will strike down the same.â€​

Apart from the above, there are enumerable occasions whenthis Court has issued directions for enforcement of fundamental rights e.g., directions

regarding functioning of caste scrutiny Committee (Madhuri Patil v. Tribal Development (1994) 6 SCC 241); directions to regulate appointment of law

officers (State of Punjab versus Brijeshwar Singh Chahal (2016) 1 SCC 1); directions to regulate powers of this Court and High Courts in designating

Senior Advocates (Indira Jaising versus Supreme Court of India (2017) 9 SCC 766); guidelines have been issued for the welfare of a child

accompanying his/her mother in imprisonment (R.D. Upadhyay versus State of A.P. (2007) 15 SCC 337); directions for checking trafficking of

women and children (Bachpan Bachao Andolan v. UOI (2011) 5 SCC 1); for night shelters for the homeless (Union for Civil Liberties versus UOI

(2010)5 SCC 318); directions to check malnutrition in children (People’s Union for Civil Liberties versus UOI (2004) 12 SCC 104 and (2010) 15

SCC 57); directions to provide medical assistance by Government run hospitals (Paschim Banga Khet Mazdoor Samity versus State of W.B. (1996) 4

SCC 37); directions for protection of human rights of prisoners (Sunil Batra versus Delhi Admn. (1978) 4 SCC 494); directions for speedy trial of

under trials (Hussainara Khatoon (IV) versus Home Secy. State of Bihar (1980) 1 SCC 98). The list goes on.

Issuance of directions to regulate the power of arrest has alsobeen the subject matter of decisions of this Court. In Joginder Kumar versus State

of U.P. ((1994) 4 SCC 260), this Court observed that horizon of human rights is expanding. There are complaints of violation of human rights because

of indiscriminate arrests. The law of arrest is of balancing individual rights, liberties and privileges, duties, obligations and responsibilities.

On the one side is the social need to check a crime, on the other there is social need for protection of liberty, oppression and abuse by the police and

the other law enforcing agencies. This Court noted the 3rd Report of the National Police Commission to the effect that power of arrest was one of the

chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arrest could be justified only in grave offences to inspire the

confidence of the victim, to check the accused from committing further crime and to prevent him from absconding. The National Police Commission

recommended that the police officer making arrest should record reasons. This Court observed that no arrest can be made merely because it is lawful

to do so. The exercise of power must be for a valid purpose. Except in heinous offences arrest must be avoided. This requirement was read into

Article 21 (para 21). In Arnesh Kumar versus State of Bihar (2014) 8 SCC 273), this Court observed that arrest brings humiliation, curtails freedom

and casts scars forever. It is considered a tool for harassment and oppression. The drastic power is to be exercised with caution. Power of arrest is a

lucrative source of corruption. Referring to the amendment of law in Section 41 Cr.P.C., in the light of recommendations of the Law Commissions, it

was directed that arrest may be justified only if there is ‘credible information’ or ‘reasonable suspicion’ and if arrest was necessary to

prevent further offence or for proper investigation or to check interference with the evidence, reasons are required to be recorded. However,

compliance on the ground is far from satisfactory for obvious reasons. The scrutiny by the Magistrates is also not adequate. This Court issued the

following directions:

“11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise

detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to

satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check listcontaining specified sub-clauses under Section 41(1) (b)(ii);

11.3. The police officer shall forward the check list dulyfilled and furnish the reasons and materials which necessitated the arrest, while

forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention ofthe accused shall peruse the report furnished by the police officer in terms aforesaid and only after

recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy

to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which

may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaidshall apart from rendering the police officers concerned liable for departmental action, they shall

also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasonsas aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the

appropriate High Court.â€​

In D.K. Basu versus State of W.B. ((1997) 1 SCC 416), this Court, to check abuse of arrest and drastic police power, directed as follows:

“35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions

are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest andhandling the interrogation of the arrestee should bear accurate, visible and clear identification and

name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest ofthe arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested

by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is

made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and isbeing held in custody in a police station or interrogation centre or other lock-up, shall be entitled

to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been

arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the

arrestee.

(4) The time, place of arrest and venue of custody of anarrestee must be notified by the police where the next friend or relative of the arrestee lives

outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a

period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of thisright to have someone informed of his arrest or detention as soon as he is put under arrest or is

detained.

(6) An entry must be made in the diary at the place ofdetention regarding the arrest of the person which shall also disclose the name of the next friend

of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be alsoexamined at the time of his arrest and major and minor injuries, if any present on his/her body,

must be recorded at that time. The “Inspection Memo†must be signed both by the arrestee and the police officer effecting the arrest and its copy

provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the

panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare

such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the

Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyerduring interrogation, though not throughout the interrogation.

(11) A police control room should be provided at alldistrict and State headquarters, where information regarding the arrest and the place of custody of

the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be

displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action,

also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the

country, having territorial jurisdiction over the matter.

The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with

equal force to the other governmental agencies also to which a reference has been made earlier.â€​

In Rini Johar & Ors. Vs. State of M.P. & Ors. (2016)11 SCC 703, this Court considered the issue of wrongful arrest and payment of

compensation. It was observed that wrongful arrest violates Article 21 of the Constitution and thus the victim of arrest was entitled to compensation.

This Court noted the observations and guidelines laid down against wrongful arrests in Joginder Kumar (supra), D.K. Basu (supra), Arnesh Kumar

(supra) and other cases and held that since the arrest is in violation of guidelines laid down by this Court and is violative of Article 21, the person

arrested was entitled to compensationâ€​.

Hon’ble the Apex Court in the case of Dr.Subhash Kashinath Mahajan (supra), in the background of the aforesaid guidelines/principles earlier laid

down by the Apex Court with regard to arrest of a person, considering the data with regard to misuse of the provisions of the Act of 1989, has further

emphasized and directed in paragraphs 81 and 83 sub para (iii) that in case of necessity of arrest of a person not being a public servant, arrest can be

made only after prior approval of the S.S.P. The aforesaid paragraphs are quoted hereinbelow :-

“81. Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no

arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a

public servant, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded

reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the

Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found

to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the

Atrocities Act and is not frivolous or motivatedâ€​.

“83. (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 detentionâ€​.

Hence, in view of the judgment of the Apex Court in the case of Dr.Subhash Kashinath Mahajan (supra), it is expected from a police officer, who

intends to arrest a person, not being a Govt. servant and is accused of the offence punishable under the Act of 1989, to arrest only with prior approval

of the S.S.P. concerned, and after recording the reasons of arrest in writing, as required and discussed in paragraphs 36 and 37 of the aforesaid

judgment. Inasmuch as no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing.

The justification for the exercise of it is quite another. Arrest and detention in police lock-up of a person can cause irreparable harm to the reputation

and self-esteem of a person. Hence, arrest cannot be made in routine manner on a mere allegation of commission of an offence. It is expected

from a police officer to act as a prudent man in the interest of protection of the constitutional rights of a citizen not to arrest a person without a

reasonable satisfaction arrived after some investigation as to the genuineness and bonafides of a complaint and need of arrest and thereafter record

genuine reasons showing that such arrest is necessary and justified. Needless to emphasise that except in heinous offences, an arrest must be

avoided.  Therefore, to achieve the aforesaid object, Arresting Officer while arresting a person is bound to follow the guidelines/directions issued

by Hon’ble the Apex court mutatis mutandis.

Further, there is no need to make any clarification that police officer of a rank of S.S.P. is also bound to follow the aforesaid guidelines/observations

before giving approval for arrest of a person accused of an offence punishable under the provisions of the Act of 1989.Â

It is further clarified that the arrest shall be subject to scrutiny by the Magistrate concerned and if a person is arrested and produced before the

Magistrate for further detention, it is the duty of the Magistrate concerned to verify whether the reasons of arrest are justified or not and if the

Magistrate finds that the reasons of arrest are justified or found to be valid, only then further detention should be allowed. In other words, when the

reasons recorded for arrest are found to be unjustified or invalid in view of the aforesaid guidelines, the Magistrate shall refuse further detention and

report the matter to this Court through Registrar Judicial for starting proceeding for contempt of the Court against erring police official as per the

direction issued in the case of Arnesh Kumar (supra).

In the background of the aforesaid discussions, considering the facts and circumstances of the present case and the material available in the case

diary, this court is of the view that the nature of the offence is not very severe and prima facie, the appellant’s arrest is not warranted for the

purpose of investigation and his presence may be secured during trial by directing him to appear before the Magistrate/Court concerned in case of

filing of the charge-sheet. However, if, during further investigation, any material and circumstances appear to justify the arrest of the appellant, then

it is expected from the Arresting Officer to follow the aforesaid procedure and guidelines mutatis mutandis.

With the aforesaid direction, this appeal is disposed of.

A copy of this order be sent to the D.G.P., with a direction to bring it to the notice of all Superintendents of Police and Investigating Officers, in the

State of M.P., for necessary compliance.

Further, the Registrar General is also directed to send copy of this order to all District and Sessions Judges, who, in turn, bring this order to the notice

of all Magistrates, ADJs and Special Judges of the State, for necessary compliance. C.C. as per rules.