Mata Sewak Upadhyay and Anr. vs State of U.P.& Ors.

In view of what hag been discussed individually by each one of us, following are the answers to the various questions which arose for decision )

(1) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is within the legislative competence of the Parliament and does not contravene any provision in the Constitution of India ;

(2) Sections 3, 4, 7, 8 and 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are valid and do not violate any constitutional or legal right of any one who may be proceeded with there under ;

(3) Committal proceedings as per the relevant provisions in the Criminal Procedure Code are necessary before cognizance is taken by a Special Court where trials are to proceed according to Chapter XVIII, Cr. P. C.

(4) "Mens rea" is not, but "knowledge" is an essential ingredient &f the offences, enumerated in Sections 3(1) and 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Majority view);

(5) Section 10 of the Criminal Law Amendment Act, 1932 is valid ;

(6) State Government''s Notification No. 777/VIII94(2)87, dated 3171989 making Section 506, I.P.O. cognizable and nonbailable offence, is valid.

In the result, all the petitions fail and are accordingly dismissed. The interim orders shall stand vacated. There shall be no order as to costs.

JUDGMENT

Om Prakash, J,

This Full Bench has been constituted to decide the vires of the Scheduled Castes and Seheduled Tribes (Prevention of Atrocities) Act, 1989 (Briefly, the Act or the Act of 1989) in view of an order dated 28101994, passed in Writ Petition No. 3956 (B) of 1994Manoj Kumar v. State of U. P., by a Division Bench of this Court consisting of Palok Basu and I. S. Mathur, JL, (also members of the Full Bench), which observed that several hundred writ petitions, inter alia, challenging the vires of the Act of 1989 and the validity of the Notification whereby Section 505 of the Indian Penal Code has been notified as nonbailable and cognizable offence in twenty districts of the State of Uttar Pradesh, are pending in this Court. As all these petitions, in the opinion of the aforesaid Bench, involve "intricate questions of validity of two important laws", the Bench observed that all these petitions be decided by a larger Bench.

This is how the Full Bench was constituted by the Hon''ble the Chief Justice by an order dated January 30, 1994 which heard learned counsel appearing for the parties in such cases at Allahabad and Lucknow on the vires of the Act of 1989 and the validity of the impugned notification.

Social status of Scheduled Castes and Scheduled Tribes (for short, the ''Dalits'') in the Indian Society in pre and postindependence era basically remained unchanged. In postindependence period, a few Dalits may have become high constitutional functionaries, economic condition of some of them may have improved, employment opportunities may have come to them in a fixed ratio, but like dust particle they are constantly itching the eyes of the caste Hindus.

In one of his postindependence fiery speeches, Bharat Ratna Baba Saheb Dr. Ambedkar giving a graphic description of the pitiable conditions of the Dalits appealed to them as under :

"In order to have a clear understanding of untouchables and its practice in real life, I want you to recall the stories of the atrocities perpetrated against you. The instances of beating by caste Hindus for the simple reason that you have claimed the right to enroll your children in Government Schools, or the right to take a marriage procession with the groom on horseback, are very common. You all know such instances, as they happen before your eyes. But there are several other causes for which atrocities are committed on the untouchables by the caste Hindus which, if revealed, surprise foreigners. The untouchables are beaten for putting on clothes of good quality. They have been whipped because they used utensils made of metal like copper etc. Their houses are burnt because they have brought land under cultivation. They are beaten for putting on the sacred thread (A visible symbol worn by high caste Hindus). They are beaten for refusing to carry dead animals and eat carrion, or for walking through the village with socks and shoes on, or for not bowing down before the caste Hindus, for taking water in a copper pot while going out to the fields to ease themselves. Recently an instance has been noted where the untouchables were beaten for serving chapter at a dinner party.

You must have heard and some of you must have experienced such atrocities. Where beating is not possible, you are aware of how the weapon of boycott is used against you. You all know how the caste Hindus have made daily life unbearable by prohibiting you from getting work, by not allowing your cattle to graze in the jungles and prohibiting your men from entering the village. But very few of you have realised why this happens. What is the root of their tyranny ? To me, it is very necessary that we under stand it.

The instances cited above have nothing to do with the virtue and vices of an individual. This is not a feud between two rival men. The problem of untouchability is a matter of class struggle. It is a struggle between caste Hindus and the untouchables. This is not a matter of doing injustice against one man. This is a matter of injustice being done by one class against another. This struggle is related to social status. This struggle indicates how one class should keep its relationship with another class of people. The struggle starts as soon as you start claiming equal treatment with others. Had it not been so, there would have been no struggle over simple reason like serving chapatis, wearing good quality clothes, putting on the sacred thread, fetching water in a metal pot, sitting the bridegroom on the back of a horse etc. lo these cases you spend your own money. Why then do the highcaste Hindus get irritated. The reason for their anger is a very simple. Your behaving on par with them insults them. Your status in their eyes in law. You are impure, you roust remain at the lowest rung. Then alone will they allow you to live happily. The moment you cross your level the struggle starts.

The instances given above also prove one more fact. Untouchability is not a short or temporary feature, it is a permanent one. To put it straight, it can be said that the struggle between the Hindus and untouchables is a permanent phenomenon. It is eternal, because the high caste people believe that the religion which has placed you at the lowest level of the society is itself eternal. No change according to time and circumstances is possible. You are at the lowest rung of the ladder today. You shall remain lowest for ever."

At page 28 of his celebrated book "The Untouchables" Dr. Ambedkar stated that "untouchability......is a unique phenomenon unknown to humanity in of the parts of the world. Nothing like it is to be found in any other society primitive, ancient or modern."

Caste system and untouchability stand together and will fall together. So long caste system is there, there is no ray of hope to eradicate untouchability. The hope to abolish untouchability without destroying caste system is futile. Everywhere in country, the Dalits feel handicapped, suffer discrimination and meet injustice as a routine.

Poverty and pecuniary made the Dalits dependents and vulnerable to oppression. The slightest attempt to assert equality or its perceived exercise receives the ire of the dominant sections of the society and the Dalits would become the object of atrocities and oppression. The lack of resources made the Dalits vulnerable to economic and social boycott. Their abject poverty and dependence on the upper classes in Rural India for livelihood stands a constant constraint to exercise their rightssocial, legal or constitutional, though guaranteed. Thus they have neither money, capacity, influence nor means to vindicate their rights except occasional collective action which would be defeated or filtered away by pressures through diverse forms, Consequently most of the Dalits are continuing to languish under the yoke of the practice of untouchability. The State has the duty to protect them and render social justice to them.

Decades rolled on, social reforms and political leaders with the fond of eradicating untouchability passed away leaving their successors to complete the unfinished Usk, endless debates took place on the floor of the Parliament, but monstrous untouchability relentlessly practiced for centuries dehumanizing Dalits continued.

Even the celebrated leaders of Dalits or constitutional functionaries in the Modern India suffered humiliation at the hands of caste Hindus.

Instances are myriad but a few may be highlighted.

the statue of Swami Sampurnanand at Varanasi when unveiled by the than Dy. Prime Minister of Free India in February, 1973 Sri Babuji Jagiwan Ramit was believed to have been defiled and was purified ceremoniously with water brought from Ganges with all religious fervor and ceremonies, reminding the Mahad Tank water purification with mounds of cowdung, cow urine and milk and episode of March, 1927 when Ambedkar and colleagues drank water from the tank, The Governor of RajasthanHead of the State under the Constitution, but a Dalit was believed to have polluted the Nath Dwara Temple when visited by him. A petty Pujari of the temple greatly disturbed by the visit of the Governor approaching the deity in the temple, tried to stop further movement of the Governor and then visibly disturbed Governor annoyingly asked the Director General of Police accompanying him : "Would you goon watching the ''Tamasha'' or do something." On October 30, 1978, a doctor in the Government Hospital in Monger did not admit a sweeper Dalit woman who was struggling for life.

Thus even persons who improved their economic position or holders of constitutional offices are no exception to the wrath and plague and untouchability as is evident from the above said instances.

Sociologists on their empirical studies are of the view that Dalits are "world''s most oppressed minorities" and that severe economic retaliation usually has been sufficient to keep the untouchables in line, but evidence exists that the "ultimate sanction was the use and threat of physical force". The numerically larger and wealthier dominant high castes are quite capable of and in fact did crush the slightest perceived resistance to their will. In their opinion, since independence and particularly since 1970''s as untouchable have more openly resisted discrimination reports of terrorism against them have increased both in number and in ferocity ; gouging out the eyes of untouchables in full view of assembled villagers who are terrified into silence, burning groups of untouchables to death, chopping of their hands or feet, raping women, destroying whole villagers are routine.

Some sociologists after stating the conditions of untouchables and impact of Protection of Civil Rights visavis human rights interacting with all sections of rural North India and staying with Dalits, say that untouchability thwarted the liberation of the human mind from the oppressive trappings of centuries old traditions, beliefs and myths that it constantly emphasised the fact of birth in a caste, ultimately untouchability depressed and dampened the psychological motivations for social and economic development. According to them, law in its formal and institutional sense was, thus rendered meaningless to the contemporary life of the untouchables. With reference to the Civil Rights Act, empirical study of the Sociologist revealed that the Act did not knock at the doors of those, who submerged in the traditions nor helped Dalits.

The Parliamentary Committee on Untouchability headed by L. Elayaperumal in their 1969 Report stated that ''untouchability'' as a basic and unique feature and inseparably linked up with the caste system and social set up based upon it. it does not require much research to realise that the phenomenon of untouchability in this country is undomentally a religious or political origin, Untouchability is not a separate institution by itself, it is a corollary of the institution of the caste system of Hindu Society.//is an attitude on the part of the whole group of people. It is a spirit of social aggression that underlies this attitude. (Emphasis mine)

In his separate judgment upholding conviction of the accused under Sections 4 and 7 of the Protection of Civil Rights Act, 1955, Hon''ble K. Raroaswamy, J. in State of Karnataka v. Appa Balu Ingale, 1993 Cr LJ 1029 (SC) : 1993 JIC 229 (SC) concluded :

"Thus it would be concluded that the untouchability had been grown as an integral facet of socioreligious practices being observed for over centuries ; kept the Dalits away from the mainstream of the Society on diverse grounds, be it of religious, customary unfounded beliefs of pollution etc. It is an attitude and way of behaviour of the general public of the Indian social order towards Dalits. Though it has grown as an integral part of caste system, it became an institution by itself and it enforces disabilities, restrictions, conditions and prohibitions on Dalits for access to and the use of places of public resort, public means, roads, temples, water sources, tanks, bathing gnats, etc., entry into educational institutions or pursuits of avocation or profession which are open to all and by reason of birth they suffer from social stigma. Untouchability and birth as a Scheduled Caste are thus intertwine root causes. Untouchabity, therefore, is founded upon prejudicial hatred towards Dalits as an independent institution. It is an attitude to regard Dalits as pollutants, inferiors and outcaste. It is not founded on mens rea. The practice of untouchability in any form is, therefore, a crime against the Constitution. The Act also protects civil rights of Dalits. The abolition of untouchability is the arch of the Constitution to make its preamble meaningful and to integrate the Dalits in the national mainstream."

It is in this backdrop that vires of the Act of 1989 has to be examined.

Article 17 of the Constitution of India in Part III made a declaration that "untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "untouchability" shall be an offence punishable in accordance with law. In exercise of the power in second part of Article 17 and Article 35 (a)(ii), the Untouchability (Offences) Act, 1955 (for short, the Act of 1955) was enacted which was amended in 1976 as "Protection of Civil Rights Act".

When no head way was made by the Act of 1955, the Parliamentarians with a view to achieving the goal of abolition of untouchability started deliberating upon taking stringent measures and then Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill was moved in the Parliament. The statement of objects and reasons appended to the Bill moved in Parliament, read as under:

"Despite various measures to prevent the socioeconomic conditions of the Scheduled Castes and Scheduled Tribes, they remain vulnerable. They are denied a number of civil right they are subjected to various offences not taken place, humiliations and harassment. They have in several brutal incidents been deprived of their life and property. Serious crimes are committed against them for various historical social and economic reasons......"

While introducing the Bill, the then Minister of State of of Ministry of Welfare (Dr. Rajendra Kumari Bajpayee) in her introductory speech said :

"People are still not going to tolerate the growth of the development of the Scheduled Castes or of those people who are till now working under them. They can come up and demand the is rights. Sometimes tension erupts in the locality. In such situation atrocities or veracity of offences are committed on members of Scheduled Castes and Scheduled Tribes....................and I had occasion to tell this house regarding recent trends in the increase of such offence against members of the Scheduled Castes and Scheduled Tribes............ During 1988 there were a little over 1500 offences against Scheduled Castes and 3300 respect of Scheduled Tribes. Of these heinous offences such as murder, arson, rape and grievous hurt counted for about 3300 cases in respect of Scheduled Castes and 783 in respect of Scheduled Tribes............ This shows the tendency, trend and thinking of the upper caste people.........."

Sir, cases of such instances were related generally to land or to continued exploitation or enforcement of traditionally dominant practices. It is regrettable that such instances have been reported such as in Kerala where a member of Scheduled Caste was forced to eat human excreta. There are reports of a bridal party being chased and houses of this community razed to the ground merely because the bridegroom had the temerity to ride on a horse through the village streets...................... So, the upper caste people felt as to how he could ride on a horse and so the houses of those who were Scheduled Caste people were razed to the ground. Efforts of the Government to provide land have been frustrated in many cases. This is another example of atrocities on such people in some States where the land is allotted to Scheduled Caste people, forcible dispossession or illegal occupation of such land is reported to Government. This is because of the fact that the upper caste people are strong people. They think that these poor Scheduled Caste people should have no right on such lands. They forcibly occupy the land....................

The women folk of Scheduled Castes and Scheduled Tribes are said to be dishonored and assaulted with the object of teaching a lesson to that community..............

The community is sometimes sought to be pressurized by denying them access to public places for easing themselves or for a cremation or a water source. Such type of things are still going on in some parts of India."

The aforesaid Bill came to be passed without dissention. The debate in the Parliament and historical facts give sufficient clue that the Act of 1989 is a compulsive legislation. This enactment is a special measure which incorporates the various forms of indignities, humiliations, harassment and exploitation to form the basis of atrocities when committed against the members of the Scheduled Castes and Scheduled Tribes.

Despite declaration of abolition untouchability is practiced with impunity more in breach. Statistical data revealed that more than 75% of the cases under the Act of 1955 are ending in acquittal at all levels. Apathy and lack of proper perspective even by the courts in tackling the naughty problem, is obvious.

For petitioners, learned counsel Sarvasri G. N. Verma, V. P. Srivastava, D. S. Mishra, Tejpal and Gopal Chaturvedi appeared before us at Allahabad whose arguments are taken seriatim.

Sri G. N, Verma, learned Senior Advocate argues that the Act of 1989 is a legislation based on caste and hence, is violative of Article 15(1) of the Constitution of India and is not saved even by Article 15(4) which is carved out as an exception to Article 15(1). The submission is that Art. 15(1) injects the State from discriminating against any citizen on ground of religion, race, caste, sex place of birth or any of them and that the Act of 1989 which creates two groups of people on caste basis is nothing but a caste legislation and hence is violative of Article 15(1) falling in Part III of the Constitution. He further submits that the impugned legislation would have been saved under Article 15(4) if that wore for ''advancement'' of Scheduled Castes and Scheduled Tribes. According to him the Act of 1989 has not been enacted for the advancement of the Scheduled Castes and Scheduled Tribes but that is simply a punitive legislation and, therefore, is not saved by Article 15(4) of the Constitution.

The Act of 1989 has been enacted to specify the acts which are declared offences under Article 17 of the Constitution, which reads as under:

"17. Abolition of Unchouchability."Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "untouchability" shall be an offence punishable in accordance with law."

From the second part of Article 17, it is clear that the enforcement of any disability arising out of untouchability shall be an offence. Such offences can be committed only against those against whom untouchability is practiced. Untouchabtlity is practiced by caste Hindus against the Dalits, therefore, the offences declared under Article 17 are committed only against the Dalits. When offences are committed only against the members of Scheduled Castes and Scheduled Tribes, punitive legislation can be there only for them under Article 17, It is not correct to say that the Act of 1989 is a caste legislation. But it is a legislation containing offences arising from the practice of untouchability and punishments prescribed therefore. When this type of legislation is made, caste polarizations is bound to be there because offences arising from untouchability are committed by a section of society against another section of the society. Because of the polarity of two groups it cannot be argued that the impugned legislation is a caste legislation and that falls foul of Article 15(1).

Then comes Article 35, clause (a) and subclause (ii) which can read as follows :

"Notwithstanding anything in this Constitution

(a) Parliament shall have and the Legislature of a State shall not have, power to make laws

(i)................

(ii) for prescribing punishment for those acts which are declared to be offences under this part."

Article 35 begins with nonobstinate clause which overrides all other provisions of the Constitution. Under this Article only Parliament has power to prescribe the punishment for those act a which are declared to be offences under Part III of the Constitution. Offences of atrocities as stated under subsections (1) and (2) of Section 3 of the Act of 1989, are such which stem from the enforcement of the disability arising out of untouchability and they are punishable under the law. To prescribe punishment for such offences, only the Parliament under Article 35, clause (a) subclause (ii) is entitled.

Article 35 and Article 17 both falling in Part 111 of the Constitution are selfcontained, inasmuch as Article 17 declares that the enforcement of any disability arising out of untouchability which is abolished, shall be an offence and Article 35, notwithstanding anything in this Constitution, empowers the Parliament to prescribe punishment for the acts which are declared to be offences under Part III. But for Articles 17 and 35, the legislative power in respect of offences relating to the enforcement of disability arising out of untouchability would have been determined under Article 246 which confers legislative power, read with Lists 1, II and 111 in 7th Schedule. For the offences declared under Article 17, there is no need to take recourse to Article 246 and Lists I, II or III in 7th Schedule. Article 17 declares an offence. Article 35 confers power exclusively on the Parliament to prescribe punishment for the acts which are declared to be offences under Part III which include Article 17 and Article 35 further obligates upon the Parliament to make laws for prescribing punishment for the acts which are declared to be offences under Part III immediately after the commencement of the Constitution. Thus the scheme of Article 17 and Article 35 is self operating power of the Parliament to prescribe punishment for the acts to be declared offences under Part III is not subject to other provisions of the Constitution. Once an act is declared an offence. within the meaning of Article 17, the Parliament having exclusive power to prescribe punishment for such offence, is under constitutional obligation to specify the acts which declared to be offences under Part HI and prescribe punishment for such offences. What comes within the scheme of Articles 17 and 35, constitutionality of that need not be tested from other provisions of the Constitution because that would be valid, notwithstanding any other provision of the Constitution. The reason of these selfoperating provisions is not far to seek. Untouchability is abolished by Article 17 and, therefore, the onerous task is entrusted to the Parliament to punish guilty persons suitably. This is why the power to prescribe punishment for the acts which are declared to be offences under Article 17 is conferred upon Parliament which thus takes upon the responsibility to make effective laws to eradicate the untouchability a cherished goal of the Constitution.

Matter viewed in this way, the question of the Act of 1989 being violative of Article 15(1) does not arise This act need not be saved under Article 15(4), because to make this enactment, Parliament alone is competent under Article 17, read with Article 35 of the Constitution.

Assuming but not accepting that the argument unless the Act of 1989 is saved by Article 15(4) that would be violative of Article 15(1), is correct, it will be seen that the Act of 1989 is fully. saved by Article 15(4). Sri Verma argues that Article 15(4) saves only that legislation which is made for the ''advancement'' of the Scheduled Castes and Scheduled Tribes. His submission is that the Act of 1989 is not for the advancement of Scheduled Castes and Scheduled Tribes and hence is not saved by Article 15(4). Can the enactment made to effectuate the provisions of Article 17 be said to be a retrogressive legislation ? Laws made consistent to Article 17 cannot be held a retrograde movement and ultra vires, rather the laws made in violation of Article 17 would be ultra vires. Each Article in Part III of the Constitution conferring fundamental right is a step forward in the march of the nation. Similarly, Article 46 in Part IV mandates that the State shall promote with special care the educational and economic interest of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation It is; a constitutional obligation of the State to protect the interests of Scheduled Castes and Scheduled Tribes from social injustice. Offences of atrocities are consistent to this constitutional mandate. Sans indignities incorporated under subsections (1) and (2) of the Act of 1989, the Dalits may lead a dignified life and, therefore, the Act of 1989 is for their advancement. If at all it is necessary to sava the validity of the Act of 1989 under the exception carved out by Article 15(4), it is thus fully saved by Article 15(4).

29 Either way the first submission of Sri Verma has to be rejected.

Then Sri Verma contends that the topic of ''land'' falls under Entry 18, List II, 7th Schedule and, therefore, the State Legislature alone is competent under Entry 64, List II to legislate for the offences against laws relating to land and that offences relating to land under clauses (iv) and (v) of Section 3(1) are without legislative competency. Under Entry 18, List II, Sri Verma says, several provisions have been made under the U. P. Zamindari Abolition and Land Reforms Act, 1950 (for short, the U.P.Z.A. Act). Under Section 122B of the U.P.Z.A. Act, the Assistant Collector may direct that any such person may be evicted from the land who has damaged or misappropriated or occupied any property vested under that Act in a Gaon Sabha or Local Authority. Under Section 122G of the U.P.Z.A. Act, the Assistant Collector may earmark the land described there under for the provision of Abadi sites for the members of Scheduled Castes and Scheduled Tribes and agricultural laborers and village artisans. It is urged by Sri Verma that if any offence is committed in respect of land referred to in Sections 122B and 122C, then the State Legislature only can bring a legislation in that regard under Entry 64, List II and that in exercise of that power, Section 122D(2) of the U.P.Z.A. Act was enacted, which states that where any person after being evicted under subsection (1) of Section 122D reoccupies the land without lawful authority, he shall be punished with imprisonment for a term which may extend to two years but which shall not be less than three months and also to fine which may extend to rupees three thousand.

This submission has been made by Sri Verma having lost sight of the arch provision, viz. Article 35 and second part of Article 17 of the Constitution. The former having overriding effect, empowers only the Parliament to prescribe punishment for the acts to be declared offences under Article 17. The plenary power of the Parliament under Article 35 is notwithstanding the Entries 18 and 64, List II and other provisions of the Constitution. This argument of Sri Verma is also unsustainable.

Another submission of Sri Verma is that creation of special courts under Section 14 in Chapter IV of the Act of 1989 is violative of Articles 14 and 21. Section 14 states that for the purposes of providing speedy trial, the State Government shall with the concurrence of Chief Justice of the High Court by notification in the official gazette specify for each district a court of Session to be a special court to try the offences under the Act. The argument is that some of the offences analogous to the offences of atrocities which exist in the Indian Penal Code, not being heinous are not triable by a court of session, but become triable by a court of session, i. e., the special court by virtue of Section 14 of the Act of 1989 and, therefore, the Act is violative of Articles 14 and 21 of the Constitution. It is submitted that other persons committing similar offences will be subjected to a different procedure than the accused persons committing offences of atrocities under this Act. Offences of atrocities are committed against members of Scheduled Castes or Scheduled Tribes by a person who does not belong to that category. The accused and the victim both fall in separate classes. Generally the offences of atrocities are such which exist in the Indian Penal Code, but under the Act of 1989, offences of atrocities are those which are committed by persons not belonging to Scheduled Castes or Scheduled Tribes against the persons belonging to Scheduled Castes or Scheduled Tribes.

In Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123, establishment of special courts of criminal jurisdiction in certain areas to try certain classes of offences in accordance with the simplified and shortened procedure was held valid. It was held that the power of the State to regulate criminal trials by constituting different courts with different procedure according to the needs of different parts of its territory is an essential part of its police power. Hon. Patanjali Sastri, C.J in his separate but majority judgment in Kathi Ranning Rawat (supra) observed :

"Though the differing procedure might involve disparity in the treatment of the persona tried under them, bunch disparity is not by itself sufficient, in my opinion, to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its evidence demands as, for instance, when it amounts to a denial of a fair and impartial trial."

It, therefore, follows that so long as fair and impartial trial is guaranteed, Articles 14 and 21 will not come into play only because of the different procedure having been introduced for a particular clause of people, or of offences or of cases or of places. Under Section 3 of the Act of 1989 classification is done with reference to the victims and the accused persons, who belong to two different groups.

It is well settled that a Legislature for the purposes of dealing with the complex problems that arise out of the infinite variety of human relations, cannot but proceed on some sort of selection or classification of persons upon whom the legislation is to operate. The consequences of such classification would, undoubtedly, be to differentiate the persons belonging to that class from others bat that by itself would not make the legislation obvious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group and the classification is not arbitrary or capricious if it bears a reasonable relation to the objective which the legislation has in view.

Equal protection claims under Article 14 are examined with the assumption that the State action is reasonable and justified. This presumption of the constitutionality stems from the wide power of classification which the legislature must of necessity possess in making flaws operating differently as regards different group of persons in order to give effect to its policies.

To combat increasing menace of untouchability, the Parliament made the enactment of 1989 giving more teeth to it, as legislative measures in the past failed to deliver the goods. Classification based on the nature of the victims and the accused, cannot be said to be unreasonable or arbitrary. If classification which is permissible, is reasonable, then the validity of the Act of 1989 cannot be said to be violative of Article 14. The object of the Act of 1989 is to specify the offences of atrocities which are committed by the persons not belonging to Scheduled Castes or Scheduled Tribes against the persons belonging to that class. There being a reasonable classification having a rationale nexus with the objects sought to be achieved, the creation of special courts under Section 14 is not violative of Article 14.

Once it is held that the creation of special courts is based on reasonable classification and is not violative of Article 14, Section 14 of the Act of 1989 can not be said to be violative of Article 21, In Smt. Menka Gandhi y. Union of India, AIR 1978 SG 597, it was held that so long as a law prescribing any procedure is not arbitrary, unfair or unreasonable, Article 21 will not be violated. The accused persons committing offence of atrocities under the Act of 1989 fall in a separate class and the classification being valid, the said enactment, in no case, can be said to be violative of Article 21. This objection of Sri Verma too is overruled.

It is further submitted by Sri Verma that Section 4 of "the Act of 1989 is discriminatory, inasmuch as it excludes a public servant belonging to a Scheduled Castes or a Scheduled Tribes who wilfully neglects his duties required to be performed under this Act. The argument is that whereas public servants not belonging to Scheduled Castes or Scheduled Tribes who wilfully their duties under the Act of 1989, shall be punishable, but for the same lapses no punishment is inflicted upon a public servant belonging to a Shaded Castes or a Scheduled Tribes. This argument is wholly misconceived. The very basis of the offence of atrocities is that it is committed by a person who is not a member of a Scheduled Castes or a Scheduled Tribes against one who is a member of a Scheduled Castes or a Scheduled Tribe. This being so, a public servant belonging to a Scheduled Castes or a Scheduled Tribes cannot commit an offence of atrocities and, therefore, his exclusion in Section 4 cannot be impugned under Article 14.

After Sri Verma, Sri V. P. Srivastava took over the arguments. His chief argument is that the Act of 1989 differently treats the accused who is not a member of a Schedule Caste or a Scheduled Tribe. To elaborate his submission, Sri Srivastava urges that if two types of accused : (1) belonging to a Scheduled Caste or Scheduled Tribe ; and (2) not belonging to that class, commit one and the same offence jointly which is an offence of atrocities under the Act of 1989, then the accused belonging to the latter category will be subjected by a special court to severer punishment and the other accused belonging to the former category will be visited by lesser punishment under the penal Code. In short, he says that the impugned Act is violative of Article 14 and hence is void.

In Sri Ram Krishna Dalmia v. Mr. Justice S. R. Tendulkar, AIR 1958 SO 538 Article 14 was interpreted thus :

"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be founded on an intelligible differential which distinguishes persons or things that are grouped together from, others left out of the group; and (2) that that differentiation must have a rational relation to the objects sought to be achieved by the Statute in question. The classification may be founded on different basis, namely, geography or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of the classification and the objects of the Act under consideration."

From Maneka Gandhi''s case and onwards, the Supreme Court hag been reading something more in Article 14. An action which is unreasonable and arbitrary is also violative of Article 14 of the Constitution. As pointed out by the Supreme Court, ''equality'' and ''arbitrariness'' are sworn enemies. One belongs to the rule of law and the other to the whim and caprice of the absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14.

The basis of the classification in the Act of 1989 is selfevident from the nature of the offences of atrocities as enumerated in subsections (1) and (2) of Section 3 of the Act of 1989 which are committed by a specified group against another specified group without overlapping each other. The scheme of Articles 17 and 35 unfolds the objects of the Act of 1989 and the nexus between the basis of the classification and the object of the Act of 19&9 cannot be doubted.

Classification being valid and there being no arbitrariness, Sri Stivastava cannot successfully assail the validity of the impugned Act on the ground that the two groups of persons are differently treated there under.

In State of M. P. v. Ram Krishna Balothia, JT 1995 (1) SC 310, the validity of Section 18 of the Act of 1989 was challenged on the ground that right to apply for anticipatory bail as envisaged by Section 438 of the Criminal Procedure Code, is denied for the offences of atrocities under that provision. Upholding the validity of Section 18 of the Act of 1989, the Supreme Court considering the statements and objects of the reasons 01 the relevant Bill observed towards the end of para 6 on page 315 af under:

"....In this circumstance if anticipatory bail is not made available to persons who committed such offence, such a denial cannot be considered unreasonable or violative of Article 14 as these offences from a distinct class by themselves and cannot be compared with other offences,"

The Supreme Court referring to the offences of atrocities as enumerated in subsections (1) and (2) of Section 3 of the Act of 1989 further observed in para 10 page 317 as follows :

"....The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and selfrespect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code"

The offences under the Indian Penal Code and the offences of atrocities under the Act of 1989 being distinct and of different categories, the submission of Sri Srivastava that two types of accused are differently treated and, therefore, the Act of 1989 is violative of Article 14, does not commend me at all to accept the same. After the decision of the Supreme Court in the case of Ram Krishna Balothia (supra) the Act of 1989 cannot be challenged on the ground of hostile discrimination.

The Supreme Court referring to Section 3 of the Act of 1989 clearly ruled down in Ram Krishna Balothia (supra) (para 6, page 314) that "The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of "untouchability."

The offences of atrocities arising out of untouchability constitute a separate class as against the corresponding offences in the Indian Penal Code and, therefore, no exception can be taken to severer punishment as prescribed under the Act of 1989.

The next submission is that mens rea which is an essential ingredient of a criminal offence is not made necessary in most of the offences, enumerated under Section 3(1) of the Act of 1989. Upon perusal of the offences as stated in clauses (i) to (xv) under Section 3(1) of the Act of 1989, it appears that requirement of mens rea is there only in clauses (ii), (x) and (xi) of Section 3(1) and that ingredient is missing in rest of the offences under Section 3(1). The ingredient of mens rea is made necessary in most of the offences enumerated in clauses (i) to (vii) of Section 3(2). The submission of Sri Srivastava is that the offences sans mens rea under Section 3 of the Act are inconsistent to the criminal jurisprudence and being arbitrary for that reason, are liable to be struck down.

No doubt, mens rea is not an ingredient of most of the offences under subsection (1) of Section 3 and for a few offences under subsection (2) of Section 3. From the very fact that mens rea is an ingredient of a few offences under Section 3(1) and of most of the offences under Section 3(2), it is legitimate to infer that the Parliament deliberately omitted to make mens rea an ingredient of the offences in which it is not mentioned. Can an offence be termed and will that be liable to be struck down on the ground of mens rea being omitted ?

As already pointed out untouchability is not a separate institution by itself; it is a corollary of the institution of the caste system of Hindu society. It is an attitude on the part of a whole stoup of people. It is spirit of social aggression that underlies this attitude. Untouchability, therefore, is founded upon prejudicial hatred towards the Dalits.

Hon''ble K. Ramaswami, J, in his separate but concurring judgment in the case of Appa Balu Ingale (supra) observed. (Para 21, already reproduced).

"It is an attitude to regard Dalits as pollutants: inferior and out caste, if is not founded on mem rea."

The offences against uatouchability being a matter of an attitude of the accused, the Parliament did not think it necessary to make nuns rea a necessary requirement of all the offences which is so normally required in other offences. The common offences under clauses (i), (iii), (iv), (v), (vi), (vii), (xiii) and (xiv) of Section 3(1) of the Act are as follows :

(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or oat any inedible or obnoxious substance ;

(iii) forcibly removes clothes from the person of a member of a Scheduled Cast of a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity ;

(iv) wrongfully occupies or cultivates any land owned by, or allotted to or notified by any competent authority to be allotted to, a Scheduled Caste or a Scheduled Triba or gets the land allotted to him transferred;

(v) wrongfully disposes, a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water ;

(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ''begar'' or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;

(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote a particular candidate or to vote in a manner other than that provided by law ;

(viii)..........

(ix)..........

(x)..........

(xii)..........

(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used ;

(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to ;

These are empirical offences, inasmuch as they have been incorporated by Parliament having experienced that such offences are usually committed by persons not belonging to Scheduled Castes or Scheduled Tribes against the victims because they belong to Scheduled Castes or Scheduled Tribes. Considering the frequency of such offences and to prevent their recurrence, the Parliament deliberately omitted to make mens rea as a requirement of suca offences. The Parliament is well aware that the accused persons go due to legal quibbling in the courts and, therefore, from the ingredients of such offences, mens rea is omitted.

Clauses (ii), (x) and (xi) of Section 3(1) of which mem rea is a requirement, are reproduced below :

(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribs by dumping excreta, waste, matter, carcasses or any other obnoxious substance in his premises or neighborhood ;

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view ;

(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty.

Dumping exreta, waste matter and other obnoxious substance is a usual feature in our country. Dumping has to be done at one or the other place. In clause (ii) of Section 3(1) this act is made an offence when it is done with intent to cause injury, insult or annoyance to a member of a Scheduled Caste or a Scheduled Tribe by a person who does to belong to that class. Mens rea is made necessary so that a person having no intent to cause injury, insult or annoyance to a member of a Scheduled Caste or a Scheduled Tribe by dumping may not be unnecessarily punished. So is the case under clause (x) of Section 3(1). In democratic policy freedom of speech is a fundamental right. Criticism of other people, howsoever highly placed, is not prohibited and, therefore, mens rea is made necessary that unless a person who does not belong to a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Schedule Tribe in any place within public view, no offence is committed.

Under clause (xi) of Section 3(1) unless a force is used against a woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty, there would be no offence. For rest of the offences under Section 3(1) which are commonly committed due to sheer odious attitude against the victims because they belong to Scheduled Castes and Scheduled Tribes, mens rea is not considered necessary and, therefore, that is omitted in the rest of the clauses of Section 3(1).

In Nathu Lal v. State of M. P., AIR 1966 SC 43 the Supreme Court held :

"Mens rea is an essential ingredient of a criminal offence. A statute may exclude the element of mens rea. It is, bodice, a sound rule of construction which is adopted in England and also accepted in India to construe a provision which creates an offence in conformity with common law rather against it except where the statute expressly or by necessary complication excludes mens rea. Of the question whether the element of guilty mind is excluded from the ingredient of offence, the mere fact that the object of the statute is to promote welfare activities or to eradicate a social evil is not by itself decisive. Only where it is absolutely clear that the implementation of the objects of the statute would otherwise be defeated that mens rea by necessary implication be excluded from statute. The nature of the mens rea that would be implied in a statute creating an offence depends on the objects of the Act and the provision thereof."

From the aforesaid rule, it is manifest that mens rea can be excluded but it will not be taken to have been excluded simply because legislation is a social legislation to promote welfare activities of the people. More will depend on the objects sought to be achieved by a given statute.

The offences as incorporated in clause (i) to (xv) under Section 3(1) are such which recurred in the past unabatedly and the Act of 1955 fell short and proved to be ineffective to give necessary succors to the people of Scheduled Tribes and, therefore, the Parliament passed the Act of 1989 adding more teeth to it to curb the ever increasing menace of untouchability. The Parliament was of the view that the whole object of the enactment would be defeated if mens rea is made a necessary requirement of the offences which the people not belonging to Scheduled Castes and Scheduled Tribes very often commit against the people belonging to that category. Keeping in view the objects of the impugned legislation and the fact that in a few offences under Section 3(1) and in most of the offences under Section 3(2) mens rea is made a necessary condition, it will not be inappropriate to conclude that mens rea is excluded by the Parliament from most of the offences under Section 3.

The punishment prescribed for most of the offences under subsection (2) of Section 3 is more than minimum punishment, uniform ally prescribed for the offences under Section 3(1). Whereas the offences under Section 3(1) are punished with imprisonment for a term which shall not be less than six months but which flay extend to five years and with fine, the punishment for the offences under clauses (i) to (vii) of Section 3(2) vary from MX months imprisonment to death. The punishment being higher under clauses (i) to (vii) of Section 3(2), the Parliament discreetly made mens rea of such offences a necessary ingredient so that an accused may not unnecessarily be subjected to severe punishment without there being proof of guilty mind.

There seems to be no arbitrariness in the omission of mens rea in most of the offences under Section 3.

Sri Srivastava then submits that power of forfeiture and attachment of property under Section 7 of the Act is unusual and hence arbitrary as that has not been provided under any other Act. Under Section 7(1) special courts upon conviction of the accused may declare forfeiture of his property in addition to the punishment awarded for that offence. Under subsection (2) of Section 7, the special court is empowered to order attachment of the property of the accused during the period of trial. The Act will not become arbitrary on account of such power being conferred on the special courts. When the Parliament is empowered to make laws against untouchability it is well entitled to prescribe forfeiture and attachment of the property of the accused in addition to the punishment awarded for the offences.

Lastly Sri Srivastava submitted that the object sought to be achieved by the Act of 1989 could be achieved by the Act of 1955 and, therefore, the former is not necessary. This is not for the courts to decide whether successor legislation is necessary and whether the predecessor legislation was sufficient to achieve the object. It is for the legislature to decide what law is required to meet the needs and aspirations of the people and to eradicate the untouchability abolished by Article 17.

Sri D. S. Misra, learned counsel for the petitioner, submits that offence under clauses (i), (ii), (Hi) and (vii) of Section 3(2) of the Act are void being arbitrary, inasmuch as minimum punishment is prescribed there under. These clause are extracted below :

"(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe

(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine ; and if an innocent member of a Scheduled Caste or a Scheduled Tribs be convicted and executed in consequence of such false and fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death ;

(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled The to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven year or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine ;

(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine ;

(vii) being a public servant commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence."

Whereas under clause (i) punishment of imprisonment for life with fine or punishment of death, as the case may be, is prescribed, under clauses (ii) and (iii) minimum punishment for six months imprisonment is provided. Under clause (vii) minimum punishment of one year imprisonment is provided. The question is whether these offences can be said to be void being arbitrary under Article 14 of the Constitution simply because they provide for minimum punishment. Minimum punishment is not provided for the first time under subsection (2) of Section 3 of the Act, but several enactments, which are punitive in nature, provide for minimum punishment. Section 302, IPC can be referred to for example sake, which states whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. So for the offence of murder, imprisonment for life is the minimum punishment. It is for the Legislature to decide the quantum of punishment. Once a Legislature is competent to legislate about offences and the punishments, then punishment depending on the gravity of the offence as considered fit by the Legislature may be provided and no offence can be declared void 00 the ground of excessive punishment, which is exclusively within the domain of Legislature. This argument has made by Sri Misra In complete disregard of Article 35 (a) (ii) of the Constitution, which empowers the Parliament alone to prescribe punishment for the acts which are declared to be offences under Pan III of the Constitution, Punishment for the offences enumerated under Section 3 of the Act are provided for the Parliament in discharge of constitutional mandate, embedded in the last portion of Article 35 (a), which states that Parliament shall as soon as may be after the commencement of this Constitution made laws for prescribing punishment for the acts referred to in subclause (ii). Minimum punishments provided as a result of constitutional mandate in clauses (i), (ii), (iii) and (vii) of Section 3 (2) cannot be said to be arbitrary and they are not rendered void for that reason.

Sri Misra further submits that unlike Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short, ''TADA'') and Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ''Narcotic Act''), there is no provision under the Act enabling special court, which is a court of sessions, under Section 14 of the Act to take cognizance of the offences enumerated under Section 3 and, therefore, the said provision is void being vague. This submission has no force. Section 193 of the Code of Criminal Procedure states that except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of sessions shall take cognizance of any offence as a court of original jurisdiction, unless the case has been committed to it by a Magistrate under this Code. So all committal proceedings art within the power of a Magistrate, unless otherwise provided under this Code or any other law. It is true that neither this Code, nor any provision under the Act empowered the special court under Section 14 of the Act to take cognizance of the offences as stated under Section 3 of the Act directly. It, therefore, follows that unless committal proceedings are taken up by a Magistrate and unless a case is committed by the Magistrate to the special court set up under Section 14, no cognizance will be taken of any offence prescribed under Section 3 by any special court under the Act. Therefore, there, is no vagueness and ambiguity in the procedure Special Court, i.e.. a court of sessions, will take cognizance of the offences under the Act only when a case is committed by a Magistrate to that court.

It has been held, in Writ Petition No. 385 (HSC) of 1984, Afaq Ahmad v. State of U. P., decided on 7101984 by Bench of this Court at Lucknow, that unless a case is committed to the special court after committal proceedings by a Magistrate, no cognizance of any offence set out under Section 3 of the Act will be taken by the special court. This proposition of law with which I fully agree, is not disputed by Sri Tula, learned Additional Solicitor General appearing for respondents.

Another submission of Sri Misra, which he made in all seriousness, is that the Act is a fraud on the Constitution, as no provision enabling the special courts under the Act to take cognizance of the offence under Section 3(1) of the Act has been made to ensure speedy trial and that the accused persons subjected to special courts under this Act are left at the mercy of the Magistrate, who is in seize of committal proceedings. Unless committal proceedings are over urges Sri Misra, the proceedings of the special court cannot begin and that may considerably delay the trial before the court of sessions. Under Section 14 of the Act special courts have been set up to ensure speedy trial, says Sri Misra, but in fact, there will be no speedy trial, as the special court is not empowered to take cognizance of the offences enumerated under Section 3 of the Act, unless a case is committed to that court by a Magistrate. No doubt, if the special court under Section 14 of the Act were given power to take cognizance of the offences under Section 3 directly, the trial would have been speedier, but there is no legitimacy in the argument that in the absence of such power there will be no speedy trial at all. A Magistrate can not delay the committal proceedings whimsically. The Magistrate is expected to act as expeditiously as possible and, therefore, the apprehension of the committal proceedings being delayed by a Magistrate in explicably, is unfounded, Conferment of power on the special courts to take cognizance directly, is that has been done in the other special Acts like TADA and Narcotic Act would have been ideal and earlier the better Section 14 is amended by the Parliament conferring power on special court to take cognizance of the offences of atrocities to ensure speedier trial, but absence of that cannot be stretched to the extent that the Parliament played a fraud on the Constitution by not conferring such power on the special court. Committal proceedings by a Magistrate and the trial by a court of sessions thereafter is a part of integrated scheme of criminal procedure and the trial by a court of sessions having an added power to take cognizance of the offences directly is an exception and a shortcut, but that alone is not the way to expedite a criminal trial. Trials are concluded under the usual scheme, i.e., committal proceedings by a Magistrate and trial by a court of sessions with equal efficacy and speed and, therefore, the argument of Sri Misra that there being no control of the special courts on the committal proceedings, expeditious trial cannot be ensured and hence the Act is arbitrary has to be rejected being bereft of any sound logic.

Then Sri Misra alluded to clause (viii) of Section 3(1) of the Act, which is as follows :

"(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe ;

He submits that the Act is vague and arbitrary, of it does not give any guideline whether proceedings for the offences envisaged by clause (viii) of Section 3(1) can be taken up only after conclusion of the false, malicious or vexatious suit or criminal or other proceedings against a member of a Scheduled Caste or a Scheduled Tribe and whether the special court can hold a parallel enquiry as to the falsity of the suit or criminal or other legal proceedings when such suits or proceedings are already pending before the competent courts. Sri Tulsi has frankly and rightly so, in ray opinion, stated that proceedings in connection with such offences will be taken up before the special courts only after the suit or other legal proceedings are concluded before a competent court and when that court has found that the suit or other proceedings were false, malicious or vexatious. This being the legal position, there is no need to delve into this question any more.

Thus, all submissions of Sri Misra fall and are rejected.

Sri Tejpal, for the petitioners made now new submission, but reiterated the argument of the Act being violative of Article 14, which has already been discussed at length and hence his submission too is rejected.

Last come the submissions of Sri Gopal Chaturvedi. His argument is very subtle but contrary to law. He submits that under the criminal jurisprudence there is no difference in the degree of offence, either it is committed against Dalits or against the opposite group and, therefore, there is no legal justification to make a special legislation for the offences not belonging to Scheduled Castes or Scheduled Tribes and the victims who belong to that category. This argument he has made having lost sight of the historical facts. Untouchability is not recent but age old phenomenon as old as the caste system. Untouchability is nothing but a corollary of the caste system. It is born with the caste system and will die with the extinction of castes based society. Unless the society is rid off the castes, the goal of eradication of untouchability enshrined under Article 17 of the Constitution, will remain elusive. Offences analogous to offences of atrocities in one or the other form are there in the Penal Code, but they are too inadequate to fight out the menace of untouchability and, therefore, the Act of 1955 was enacted, which also belied the hopes of the Legislature and then the Act of 1989 came to be passed by Parliament with the fond hope of eradicating untouchability Sri Chaturvedi is, therefore, not correct that any punitive measure without special reference to Scheduled Castes and Scheduled Tribes would meet the purpose and the Act of 1989 is superfluous, arbitrary and unnecessary.

His next submission is that prior knowledge on the part of the accused of the fact that the victim belongs to a Scheduled Caste or a Scheduled Tribe is necessary, but there is not so made an ingredient of the offences of atrocities under Section 3, hence the same is void.

It is true that knowledge of the fact that the victim belongs to a Scheduled Caste or a Scheduled Tribe, is not expressly stated as an ingredient in any of the clauses under subsections (1) and (2) of Section 3.

Sri Tulsi, learned Additional Solicitor General argues that the omission of knowledge under subsections (1) and (2) of Section 3, is not an inadvertent but deliberate and what is omitted by the Parliament knowingly the courts should be loath to import that in Section 3 because such import would be contrary to the intention of the Parliament. He submits that the offences of atrocities have been made by Parliament in special circumstances to combat the menace of untouchability and the concept of strict liability being predominant under Section 3 of the Act, that has to be construed by the court strictly without importing in Section 3 of the element of knowledge which has been consciously omitted by Parliament in that provision.

The question is what is the true construction of Section 3 It is already pointed out that the Act of 1989 was made by Parliament to abolish the menace of untouchability which escalated despite preceding legislation. From the statement of objects and reasons which preceded the Act of 1989, it appears that the instances of abhorrent offence, namely, putting human excreta in the mouth of the people of Scheduled Castes came to the notice of Parliamentarians and to prevent such calculated, premeditated and redesigned acts of the people not belonging to Scheduled Castes or Scheduled Tribes, Parliament was impelled to pass a stringent legislation. Viewed in this perspective, it appears that knowledge on the part of the accused that the victim belongs to a Scheduled Caste or a Scheduled Tribe was presumed in the offences, enumerated under subsections (1) and (2) of Section 3 and this is why knowledge on the part of the accused is not expressly stated as an ingredient in any of the clauses subsections (1) and (2) of Section 3.

The submission of Sri Tulsi that the offences of atrocities under Section 3 being the offences of strict liability, knowledge on the part of the accused is not at all made an ingredient of Section 3 does not seem to be convincing. There is nothing to indicate that Parliament intended to dispense with the ingredient or knowledge on that part of the accused altogether. Parliament would not have done so especially when the accused is subjected to severer punishment for an offence of atrocity under Section 3. On the facts and circumstances, the view which is more reasonable is that knowledge on the part of the accused that the victim belongs to a Scheduled Caste or a Scheduled Tribe was presumed. The cardinal principle of law is that the construction of special enactment must be such as to promote the object of the enactment to enable the machinery to deal effectively with persons involved in the commission of an offence of atrocity. It is the duty of the courts to accept a construction which promotes the objects of the legislation and also prevents its possible abuse even though the mere possibility of abuse of a provision does not affect its constitutionality or construction. Abuse has to be checked up by constant vigilance and monitoring of individual cases Section 3 has to be interpreted in this perspective and when done so, the reasonable conclusion that can be reached at, is that there was a presumption of knowledge on the part of the accused.

It is already pointed out that the genesis of the offences of untouchability enumerated under Section 3, is the caste feeling. Prompted by this mental state, the offences of atrocities are committed against the persons belonging to Scheduled Castes or Scheduled Tribes. If the knowledge on the part of the accused is not presumed then the whole object of the enactment will be frustrated on account of legal guidelines. It will be quite impracticable, if not impossible, for the prosecution to prove the inner feeling of the accused forcing him to commit the offences of untouchability.

Faced with this situation, the Supreme Court in Sanjay Dutt v. State through C.B.I., Bombay (II), (1994)5 Supreme Court cases 410, held that practical considerations be kept in view while interpreting this type of subtle point. On the point of onus whether unauthorised possession of an arm was intended for disruptive activities or for innocuous purpose, the Supreme Court enunciated in Para 41 at page 439 as follows :

"The practical considerations in prosecution for an offence punishable under Section 5 of the TADA Act affecting the burden of proof indicate that the tended use by the accused of such a weapon etc. of which he is unauthorised possession within a notified area is known only to him and the prosecution would be unable most often to prove the same while the accused can easily prove his intention in this behalf.............." (Emphasis supplied)

Knowledge on the part of the accused that the victim belongs to a Scheduled Caste or a Scheduled Tribe is nothing but a mental state of the accused. On the analogy of the rule propounded in Sanjay Dutt (supra), it will be more reasonable to hold that a presumption was raised under Section 3 so far as knowledge on the part of the accused is concerned, because it would be easier for the accused to prove that an offence of atrocity under Section 3 of the Act was not committed by him with the knowledge that the victim belongs to a Scheduled Caste or a Scheduled Tribe.

Section 5 of the TADA Act came up for interpretation in Sanjay Dutt (supra), in which the Supreme Court held if the accused was found in unauthorised possession of arm in a notified area then he would stand convicted on the strength of resumption that the said arm was intended to be used for disruptive activities. When a presumption can be raised about the intended use of the arm unauthorized possessed. I see no good reason why a view cannot be taken that a presumption was raised under Section 3 of the Act that the accused committed an offence of atrocity having the knowledge that the victim belonged to a Scheduled Caste or a Scheduled Tribe.

It may be argued that the presumption in Sanjay Dutt (supra), relate to the use of an arm which is an unanimated object and that on that analogy the presumption under Section 3 of the Act that the accused possessed knowledge at the time of the commission of an offence of atrocity that the victim belongs to a Scheduled Caste or a Scheduled Tribe, cannot be justified. There is no logic in this argument. Whether the accused possessed knowledge of the fact that the victim belonged to a Scheduled Caste or a Scheduled Tribe at the time of commission of an offence of atrocity under Section 3 of the Act and whether the accused intended to use an arm unauthorized possessed under Section 5 of the TADA Act for disruptive activities or otherwisein both the questions it is the mental element of the accused which is presumed. It is misnomer to say that the presumption under Section 5 of the TADA Act relates to an unanimated object and under Section 3 of the Act, the presumption will relate to living beings.

Then the question is what is the nature of the presumption under Section 3 of the Act. It is rebuttal. It is no doubt rebut table (See Sanjay Dutt) (supra). It is difficult to accept the extreme submission of Sri Tulsi that the principle of strict liability being involved in the offences of atrocities under Section 3, it is not open to the accused to prove that he had no knowledge of the fact that the victim belonged to a Scheduled Casts or a Schedule Tribe at the time of commission of an offence of atrocity. The right of rebuttal is the basic right of the accused and that cannot be taken away. The accused will, therefore, have a right to prove that ho did not know what an offence was committed that the victim belonged to a Scheduled caste or a Scheduled Tribe. As the accused is entitled to prove nonexistence of facts which constitute ingredients of the offences, enumerated under Section 3 he is equally entitled to prove nonexistence of facts relating to the ingredient of knowledge on his part. Rule of strict liability does not mean that the accused is deprived of an opportunity of rebutting the presumption of the knowledge on his part. Rule of strict liability means that if the accused failed to prove nonexistence of knowledge on his part that the accused belonged to a Scheduled Caste or a Scheduled Tribe when an offence of atrocity was committed, then he would stand convicted on the strength of presumption that he possessed knowledge that the victim belonged to a Scheduled Caste or a Scheduled Tribe if the facts constituting other ingredients of an offence under Section 3 of the Act are proved to exist by prosecution.

The validity of Section 3 of the Act cannot be successfully impugned on this ground.

Another submission of Sri Chaturvedi is that under Section 14 of the Act, the special court can try only the offences as described under the Act and if an accused commits offence other than the offences of atrocities in the same transaction, then multiple trials cannot be avoided. To obviate split, trials, points out Sri Chaturvedi, under Section 8 of the U. P. Gangster and AntiSocial Activities (Prevention) Act, 1986, the special court is empowered to try allied offences as well. Analogous provision not being under Section 14 of the impugned Act, the said Act according to him being vague and unworkable, is liable to be struck down. The rule under Section 218(1) of the Code of Criminal Procedure (Cr. P.C.) is that for every distinct offence there shall be separate charge and every such charge shall be triad separately. For convenience sake, this rule has been diluted, inasmuch as Section 220(1), Cr. P.C. provides that if in one series of acts so connected together as to form the same transaction, more differences than one are committed by the same parson, ho may be charged with and tried atone trial for every such offences. Section 223(d), Cr. P.C. permits that persons accused of different offence committed in the course of same transaction, may be charged and tried together. Section 193 Cr. P.C declares that except as otherwise expressly provided, no court of session shall take cognizance of any offence as a court of original jurisdiction, unless the case has been committed to it by a Magistrate under this Code. The special court being the court of session which will continue to be so despite having been designated as special court under Section 14, will, therefore, proceed to decide the case which has been committed to it. There being sufficient guidelines on the jointer of charges and for their single trial, a case of offences in plurality committed in the same transaction, may be composite to the special court and once so committed, the special court may proceed with the trial in regard to all such offences. Section 14, therefore, does not suffer from any ambiguity and unworkability.

This finishes up the arguments of learned counsel at Allahabad.

in the writ petitions filed at Lucknow, we heard learned counsel for the parties there. S/Sri L. P. Misra, S. C. Srivastava, K. S. Rastogi and Rajendra Kumar Dwivedi, who took assistance of Sri R. N. Trivedi, appeared for the petitioners. To avoid repetitions their arguments on the vires of the 5 Act got 1989 are omitted, as on the vires of the Act, no new argument was made by them.

It was faintly argued at Lucknow that Section 1 of the Act being arbitrary is ultra vires. Section 8 raised two presumptions under clauses (a; and (b). Clause (a) states that in a prosecution for an offences under Chapter II, if it is proved that the accused rendered any financial assistance to a person accused of or reasonably suspected of committing an offence under this chapter, the special court shall presume unless contrary is proved that such person had abetted the offence. Clause (b) similarly raises a presumption that if it is proved that a group of persons committed an offence under this chapter and that the offence committed was a sequel to any existing dispute regarding land or any other matter, the special court will presume that the offence was committed in furtherance of common intention or in prosecution of the common object. Raising presumption is a legislative prerogative and no exception can be taken to such provision. It not uncommon for the legislature to raise presumptions under law. Similar provisions raising presumptions have been made in several statutes. Sri Tulsi argues that it has bean experienced that very often the wealthy persons cause the offences of atrocities against the Dualist to be committed through their musclemen giving them financial assistance. Physical act is not done by the persons not belonging to Scheduled Castes or Scheduled Tribes, but they engage musclemen for committing such offences and to prevent it a presumption has been raised that if any financial assistance is rendered to the accused, then it will be presumed unless rebutted that such person had abetted the offence. Under clause (b) a presumption has been raised about the offence being committed in furtherance of common object. In the perspective of the offences of atrocities such presumption cannot be said to be arbitrary. Once the legislature is empowered to raise such presumptions no exception can be taken to them and hence the objection is rejected.

Sri S. C. Srivastava for petitioners that for carrying out the purpose of the Act, rules have not yet been framed and, therefore, the Act is ultra vires. The submission is wholly misconceived. The Act will not become ultra vires simply because the rules have not been framed, though this submission is factually incorrect, inasmuch as the rules have been notified by a notification, dated 3131995 in the official Gazette. Shri Tulsi, learned Additional Solicitor General made a statement at the Bar that the said rules have not only been notified but have also been before each house of Parliament.

Sri L. P. Misra for petitioners apart from challenging the vires of the Act on the ground of being violative of Article 14, argues that the impugned notification, dated August 2, 1989, which has been issued in exercise of the powers conferred by Section 10 of the Criminal Law Amendment Act, 1932 (briefly, the Act of 1932) is invalid.

There are two notifications of December 29, 1932 and August 2, 1989 which came to be issued in exercise of the powers conferred by Section 10 of the Act of 1932. Whereas, the first notification was made applicable only to a few districts, mentioned therein, the second notification of August 2, 1989 which was issued in super session of the notifications earlier issued in this behalf, states that the Governor is pleased to declare that any offence punishable under Section 506 of the Indian Penal Code (IPC) when committed in any district of Uttar Pradesh, shall notwithstanding anything contained in the Criminal Procedure Code, 1973, be cognizable and nonbailable. From the second notification it is, therefore, clear that that was issued in super session of the notification of December 29, 1932 and the effect of this notification is that the offence punishable under Section 506, IPC when committed at any place through, out the Uttar Pradesh, shall notwithstanding anything contained in the Criminal Procedure Code, be cognizable and nonbailable. In the first Schedule to the Criminal Procedure Code, 1973, the offence under Section 506 IPC is described as noncognizable and bailable, but by virtue of Sec. 10 of the Act of 1932, the same has been declared for the entire Uttar Pradesh as cognizable and nonbailable by the notification of August 2, 1989. Sec. 10 of the Act of 1932 confers powers of the State Government to declare by notification in the official Gazette that an offence punishable under Section 506 IPC inter alia when committed in any area specified in the notification, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and nonbailable and thereupon the Code of Criminal Procedure, 1898 shall while such notification remain in force, be deemed to be amended accordingly. The submission is that by the Act of 1932, an amendment was made in the Code of Criminal Procedure, 1898, which stood repealed by virtue of Section 484 of Code of Criminal Procedure, 1973, which was assented by the President of April 1, 1974. The Act of 1932 having been passed simply to amend the Cr. P.C. of 1889, the argument of Sri Misra is that the former could not survive beyond the life of the Cr. P.C. of 1898, which came to an end after being repealed in April, 1974. In short, he submits that the life of the Amending Act cannot be more that the Principal Act and that the Amending Act is coextensive and coterminus with the Principal Act and that Cr. P.C. of 1898 which was amended by the Act of 1932, having been repealed in April, 1974, the Act of 1932 could not have survived thereafter. Sri Tulsi argues that it is a misnomer to say that the Act of 1932 is simply an Amending Act. He submits that the Act of 1932 is named as "The Criminal Law Amendment Act, 1932'''', because that has made some amendment in the general body of criminal law and, in fact, the Act of 1932 is not only an Amending Act but a unique blend of substantive law as well as of the provisions making an amendment in the Cr. P.C., 1898 and that it having contained substantive provisions as well, cannot be said to be coterminus with the Cr. P.C. of 1898 in which certain amendments were made, says Sri Tulsi. From perusal of the Act of 1932, the submission of Sri Tulsi appears to be correct that the said enactment is not merely an Amending Act but that is a blend of substantive provisions as well as the provisions amending Cr. P.C. of 1898. So the Act of 1932 is still on the statute book, notwithstanding the repeal of Cr. P.C. 1898.

Therefore, the contention of Sri Misra that impugned notification of August 2, 1989, having been issued under a dead enactment is invalid, has to be rejected.

Then Sri Trivedi whose assistance was sought by Sri R. R. Dwevedi submits that Section 10 of the Act of 1932 is violative of Article 14 of the Constitution, inasmuch as it is bereft of any guideline in respect of an area to be specified in the notification. He submits that the State Government is given free hand with unguided, unchannelised and arbitrary power to issue notification for any area and, therefore, Section 10 suffers from the vice of excessive delegation. Section 10 of the Act of 1932 is reproduced as under :

"10 Power of Local Government to make certain offences cognizable and nonbailable.(I) The Local Government may, by notification in the local official Gazette, declare that any offence punishable under Section 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall, notwithstanding anything contained in the Code Criminal Procedure, 1898, be cognizable and thereupon the Code of Criminal Procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly.

(2) The Local Government may, in like manner and subject to the like conditions and with the like effect, declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Code shall be nonbailable."

94 At the very outset, it is pointed out that the Division Bench while making reference, did not refer any question relating to the validity of Section 10 of the Act of 1932, but it has been argued before us in connection with the validity of the notification of August 2, ls89. Sri tulsi candidly of Section 10 being 4ecidcd by the Full Bench, inasmuch a the respondents are duly out to notice. It is also made clear that while making reference, the Division Bench was not aware of Section 10 notification of August 2, 1989, which refers to the entire Uttar Pradesh and at that stage, the Division Bench simply referred to the earlier notification of December 29, 1932 notifying only a few districts. By notification of December 29, 1932, Section 506, IPC was made cognizable and nonbailable only for a few districts but by subsequent notification of August 2, 1989, Section 506, IPC has been declared cognizable and nonbailable for all district of Uttar Pradesh, i.e., for the entire Uttar Pradesh.

95 In these circumstances, the Full Bench proceeds to decide the validity of Section 10 and that of the notification of August 2, 1989.

96 The question for consideration is whether power to issue notification specifying the area is wholly unguided, as contended by Sri Trivedi. It is true that if such power is unguided for unchannelised, then Section 10 will suffer from the vice of the excessive delegation and will be ultra vires being violative of Article 14 for that reason. Section 10, of |course, does not expressly point out any guideline to the State Government to specify the area If there is no express guideline in Section 10, it does not mean that there is no guideline at all. The guideline may be implied or it may be inferred from the scheme of the offence and from the object of the Act From the statement of the objects and reasons of the Act of 1933, it appears that the amendment in the Cr. P. C. of 1898 became necessary in the wake of Civil Disobedience Movement. When subversive activities by the people of India to overthrow the British regime escalated and paralysed the whole Government, to control such activities, stringent measures became imperative and, therefore, the amendment in the old Cr. P. C., was necessitated conferring more powers on the police to arrest the persons involved in such activities without awaiting a warrant from the Magistrate and that was why Schedule to the old Cr. P.C. was so amended as to make the offence under Section 506, IPC cognizable and nonboilable. Because the Act of 1932 came to be made in the wake of Civil Disobedience Movement, it cannot be said that the remained confined only to that movement. The participants in such movement created a situation of utter lawlessness. Civil Disobedience Movement was an euphemism for the scheme of such disorder. To deal with that situation firmly, the first notification of December 29, 1932, had been issued. Therefore, it is not correct to say that the first notification was issued only to crush the Civil Disobedience Movement, bat that was issued taking note of the situation of lawlessness and complete disorder. So, what is important is the deteriorated law and order situation prevailing at that times and not the name of the movement which was then started. As and when the circumstances affecting the law and order situation arise, power conferred by Section 10 can be availed and that is what has been done by the second notification of August 2, 1989. There is no cases of the petitioners that law and order situation in the State of Uttar Pradesh is so satisfactory as to not justify the exercise of power conferred by Section 10

In determining the question of the validity of a statutory provision, the court will not strike down that simply because no express guideline is given therein but will go on the examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the government in the matter of selection of the area. From the scheme of the Act of 1932, it is clear that the Stata Government is given discretion to specify the and only when law and order situation is not satisfactory. So the power to issue a notification is not unguided as that has to be exercised only when law and order situation so warrants.

The State Government while issuing notification has to apply its mind : (1) to the law and order situation prevailing at a given time ; (2) to the area in respect of which notification is to be issued ; and (3) to the offences for which notification is to be issued, If the law and order situation is satisfactory and no stringent measures are required, then one can challenge the issuance of the notification on the ground of nonapplication or misapplication of mind. When no such averment is made by the petitioners and the State Government issued the notification taking into consideration on the law and order situation prevailing throughout the State, the notification cannot be challenged on the ground that Section 10 does not set out the circumstances to guide the State Government to specify the area. Where the legislature has already laid down the policy and indicated the rule of Hoe of action which should serve as guideline to the authority, it cannot be challenged on the ground of the vice of the excessive delegation.

In the absence of the averments relating to the state of law and order situation, the respondents though were not required to show the reasons recorded by them before issuing impugned notification have brought the original record and showed it to the Bench, from perusal of which it appears that before issuing the notification, several meetings wore held to deliberate over matter and then the authorities reached the conclusion that in the present circumstances, issuance of notification under Section 10 of the Act of 1932 became imperative,

In Sanjay Dutt (Supra), an argument was made before the Supreme Court that there is no express indication in the TADA Act of the manner in which the State Government is to exercise the power of issuing the notification in connection with the notified area. Section 2 (1) (f) of the TADA Act defines notification in the official Gazette may specify. Then for the respondent it was argued that the manner in which this power is to be exercised by the State Government has to be inferred by reading the enactment as a whole keeping in view its object from which it follows by necessary implication. Referring to statements of objects and reasons of the TADA Act, it was argued that unauthorised possession of arms and ammunition etc. of the specified category was made an offence because that facilitated the commission of terrorist and disruptive activity and therefore, an area which is more prone to such activity is notified with a view to prevent the availability of unauthorised weapons and substances of that kind in that area. From the object of the TADA Act, it was inferred that the area which was more prone to the disruptive activities is to be notified. So the greater proneness of the disruptive activity was the guideline for notifying the area. Though this guideline was not there either under Section 5 which defines the offence or under Section 2 (1) (f) which defines notified area, but the inference of there being a guideline was drawn from the scheme of the Act. Agreeing with the submission of the Additional Solicitor General, the Supreme Court observed in para 21 at page 431 as under i

"We think the submission of the learned Additional, Solicitor General that the State Government''s power to notify an area under Section 2 (1) (f) must have relation to curbing terrorist and disruptive activities in the notified area is well founded for otherwise the State Government''s power would be unfettered and unguided which would render Section 5 vulnerable."

Then in para 24 at page 431 the Supreme Court elucidated

"We have already indicated the manner in and the purpose for which a specified area is declared to be a notified area by the State Government under Section 2 (Ij (f) of the TADA Act. This is done with reference to the fact that a notified area is treated to be more prone to the commission and escalation of terrorist and disruptive activities. This is the basis for classification of "a notified area" differently from the nonnotified area and it has a reasonable nexus with the object of classification

Declaration of a specified area as a notified area by the State Government is based on its satisfaction, subjective in nature that the area is prone to terrorist and disruptive activities and its escalation. This opinion of the State of the State Government has to be formed necessarily with reference to facts relating to incidents of terrorist and disruptive activities, for the prevention of which check on the influx of the specified arms and ammunition etc. in that area is the object of enacting Section 5. The existence of the factual basis for declaring a specified area as notified area has to be presumed for the purposes of Section 5 or otherwise it would be put to proof in every case."

Reverting to the Act of 1932, it is held that an inference can be drawn from the statement of the objects and reasons of the Act of 1932 and from the nature of the offence of criminal intimidation under Section 506, Indian Penal Code that maintenance of law and order situationan avowed object of the Actis a clear guideline for issuing notification under Section 10 of the Act of 1932. Before issuing the notification, the State Government has to keep in view the law and order situation and apply its mind to the area and the offence in respect of which a notification is under contemplation.

It is settled law that if there is valid classification then Article 14 of the Constitution will not be violated simply on the ground that Jaw made for two different areas is discriminatory. Two types of areas (1) an area in which law and order situation is satisfactory ; and (2) an area where law and order situation is worsened are distinct and such classification has nexus with the object sought to be achieved by the Act of 1932. Impugned notification is, therefore, not violative of Article 14 of the Constitution and the argument in this regard is rejected.

Sri Trivedi then submits that an ordinary legislation cannot be interpreted in the same fashion as Constitution being an organic document can be interpreted. What he says is that while interpreting the Constitution, the Court may take into account the social setting of the country, needs of the nation and the current burning issues facing the people, but an ordinary legislation has to be construed strictly. His submission is that when there is no guideline in Section 10 of the Act 1932, the same cannot be read into that taking recourse to the statement of objects and reasons of the said enactment and the policy underlying the offence under Section 506, IPC. This submission being contrary to and in the teeth of the observations made by the Supreme Court in the case of Sanjay Dun (supra), has to be rejected. The cardinal principle of law is that law has to be construed in such a fashion as to make it workable and enforceable and which does not render it redundant or otiose. The construction put on Section 10 by mo is the one which makes it enforceable than redundant.

Neatly, Sri Trivedi contends that Section 10 amended only the old Cr. P. C. of 1898 as reference has been made to that only in that provision and that has no relevance to the new Cr. P. C. of 1973. Similar argument was made in Vinod Rao v. State of Gujarat, 1981 Cr LJ 232, when the Gujarat High Court taking recourse to Section 8 of the General Clauses Act repelled the contention of the Counsel for the petitioner in these words

"Mr. Pandit has in our opinion approached the question from a wrong angle and has, therefore, made an founded submission. In our opinion, the correct approach is to construe Section 10 in light of the rule of construction laid down in Section 8 of the General Clauses Act, 1897. Section 8 provides as follows:

"8(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and reenacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the p revision so repealed shall, unless a different intention appears, be construed as references to the provisions so reenacted.

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and reenacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so reenacted."

Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932, Cr. P. C., 1973 in place of the expression Cr. P. C. 1898.'' When we so read it, it becomes clear that the notification issued under Section 10 with reference to Cr. P. C. 1898 should be read as having been issued with reference to the Cr. P. C. 1973. So far as the impugned notification is concerned, it also refers to the Cr. P. C. 1898. The rule of construction laid down in Section 8 of the General Causes Act, 1897 also requires us to construe reference to the repealed enactment made in any ''instrument'' as reference to the repealing enactment or the new enactment which has been brought into force. The expression ''instrument'' used in Section 8 of the General Clauses Act, 1897 in our opinion, necessarily includes a notification as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both iu Section 10 of the Criminal Law Amendment Act, 1933 and in the impugned notification reference to Cr. P, C., 1898, as a reference to Cr. P. C. 1973. Therefore, the effect of the notification issued under Section 10 in 1937 is to modify the relevant provisions in the Cr. P. C. 1973, Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to the instant case."

I am in complete agreement with the reasoning given by the Gujarat High Court and, therefore, this contention of Sri Trivedi also fails.

Another contention of Sri Trivedi is that the notification of August 2, 1989, does not indicate as to when it will come into force and, therefore, it is a mere statement of fact and not ''law'' within the meaning of Article 13 of the Constitution. I see no substance in this submission, as usual mode to give effect to any law or notification is publication in the Gazette. Unless otherwise stated, a notification will come into force immediately upon its being published in the Gazette. The date of publication cannot be doubted and hence the point of time of commencement of the notification of August 2, 1989, too is beyond doubt.

Lastly, Sri Trivedi submits that the executive cannot assume power to amend the law. The submission is that the effect of the notification of August 2, 1989, is to amend the statutory schedule appended to the CrPC is statutory and that can be amended only by the legislature. He argues it on the principle that and who makes the law, can amend the same and none else. Since the Schedule makes the offence under Section 506, IPC, noncognizable and bailable as statutory, that cannot be amended by the State Government by a notification, says Sri Trivedi.

In Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788, a notification was issued under Section 3(4) of the Bombay Commissioners of Divisions Act, 1958 (referred to in this authority as ''Commissioners Act'') amending a few sections of the Land Acquisition Act, 1894 (referred in this authority (the Act). The validity of Section 3(4) of the Commissioners Act was challenged on the ground that suffered from excessive delegation and that Section 3(4) of the Commissioners Act is an abdication of the powers of the Legislature in favour of the executive. Subsection (3) and subsection (4) of Section 3 of the Commissioners Act are as under :

"(3) The State Government may by notification in the official Gazette amend or delete any entry in the Schedule for the purpose of imposing any conditions or restrictions on the exercise of powers and discharge of duties conferred or imposed on the Commissioner or withdrawing them, as the case may be and the Schedule shall be amended accordingly.

(4) The State Government may confer and impose on the Commissioner powers and duties under any other enactment for time being in force for that purpose may, by a notification in the official Gazette, add to or specify in the Schedule the necessary adaptations and notifications in the enactment by way of amendment ;"

Having examined the scheme of the Commissioners Act, the Supreme Court observed. (Para 12 an page 1796):

"But in our opinion, the object of subsection (3) is twofold, first to enable the Government to impose any conditions or restrictions on the exercise of powers and discharge of duties on the Commissioners and secondly, to withdraw them in case it is felt that the Commissioners should not exercise those powers. We see no objection in entrusting this function to the State Government because as mentioned above, the State Government is in charge of the administration and the whole object of the Commissioners Act is to enable it to run the administration as smoothly as possible." In paragraph 13 on page 1976, the Supreme Court concluded :

"We have come to the conclusion that the Legislature has not abducted itself in favour of the executive but it has laid down essential legislative policy and wisely left it to the State Government to reorganise the administration consequent on the setting up of Commissioners Division. The State Government is after all in chaise of administration and it knows, specially in view of its previous experience, what powers of exiting authorities including itself can suitably be conferred on the Commissioners. 108 From this authority, it follows that to maintain the rule of flexibility which is utmost necessary to run the administration, delegation of some cowers which are not essentially legislative in nature, is necessary. Legislature time to make law to cover all situation arising time to time and before after the essential legislative policy having been laid down. The can leave to the State Government to make necessary changed interest of smooth administration. The Legislature has made offence under Section 506, IPC and has also laid down the essential procedure for the cognoscibility or bail ability of that offence is concerned, the State Government is empowered to change the schedule under Section 10 of the Act of 1932 to make the offence cognizable or nonboilable on the exigencies of the administration. In view of the rule laid Arnold the power conferred on the State Governn to amend the schedule to the Cr PC is permissible What is amended is of the offence which is declared by the Legislature in the exercise of essential legislative power. Amendment by verdure of Section 13 is such which does not override the essential legislative power.

For the reasons Section 10 of the Act of 1932 as well as the notification of August 2, 1989, both the held valid.

In the premises, Sections 3,4,7,8 and 14 of the Act of 1989 and Section 10 of the Act of 1932 and notification No. 777/VIII94 (2) (87), dated full 31 1989 published in the U. P. Gazette (Extraordinary) Part IV, Section 2nd August, 1989, are held valid.

Decided accordingly.

JUDGMENT

Palok Bean J

The vires of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) came to be challenged in hundreds of writ petitions not only the Lucknow Bench but also in this Court. Looking at the niceties of the questions involved it was thought proper to get an authoritative pronouncement on the questions raised and as such the Division Bench referred to a larger Bench all the matters in which constitutionality of the provision of the Act stood challenged. In some of the writ petitions Government Notification making Section 504, IPG a cognizable and a nonbailable offence was also challenged. This notification was made in exercise of the power conferred by Criminal Law Amendment Act of 1932.

Detailed arguments were raised on behalf of the petitioners in most of the writ petitions with great ability in this Court as well as at the Lucknow Bench as the Full Bench thought it convenient to hear counsel at both the places. Sri G. N. Verma, Sri V. P. Srivastava, Sri D. S. Misra, Sri Tejpal and Sri Gopal Chaturvedi have argued the matter at Allahabad on behalf of the petitioners while Sri R, N, Trivedi, Dr. L.P. Mishra, Shri S. P. Srivastava, Shri K. S. Rastogi and Shri R. K. Dwivedi have represented the cause of the petitioners in the Lucknow Bench. At both the places Sri K. D. S. Tulsi, learned Addl. Solicitor General assisted by Sri U. N. Sharma and Sri S. K. Nag have espoused the cause of the respondents and have refuted each and every point canvassed for the petitioners.

His Lordship Hon. Mr. Justice Om Prakash presided over the Full Bench with whom this Court had long discussions. A very thoughtful judgment has been prepared by my revered elder brother. It is good that his Lordship has dealt with all the points at great length and has upheld the provisions of the Act and has also upheld the Notification of the State Government declaring Section 504, IPC as nonbailable and cognizable offence. For all practical purposes this Court is respectfully in agreement with the aforesaid findings. But it is sincerely regretted that it is not possible to accede to the view of Hon''ble Om Prakash, J. which is underlined by me in paragraphs note at pages 46, 47, 48 and 48A of the judgment which are to the following effect:

Page 46.. Section 3. Had to be interpreted in this perspective and when done so, the reasonable conclusion that can be reached at is that there was a presumption of knowledge on the Part of the accused.''

Page 47.. Knowledge on the Part of the accused that the victim belongs to a Scheduled Caste or a Scheduled Tribe is nothing but a mental state of the accused. On the analogy of the rule propounded in Sanjay Dutt (supra), it will be more reasonable to hold that a presumption was raised under Section 3. So far as Knowledge on the Part of the accused is concerned ? Because it would be easier for the accused to prove that in offence of atrocity under Section 3 of the Act was not committed by him with the knowledge that the victim belongs to a Scheduled Caste or a Scheduled Tribe.

Page 48..When a presumption can be raised about the intended use of the arm unauthorized possessed. I see no good Reason why a view cannot be taken that a presumption was rayed under Section 3 of the Act that the accused committed an offence of atrocity having the knowledge that the victim belonged to a Scheduled

Caste or a Scheduled TribeThere is no logic in this argument. It is misnomer to say that the presumption under Section 5 of the TADA Act relates to an inanimate object and under Section 3 of the Act. The presumption will relate to living beings.

Page 48A,.''The question is what is the nature of the presumption under Section 3 of the Act. Is it rebuttal ? It is no doubt reputable.... As the accused is entitled to prove inexistence of facts which constitute ingredients of the offences, enumerated under Section 3. He is equally entitled to prove nonexistence of facts relating to the ingredient of knowledge on his part....Rule of Strict liability means that if the accused failed to prove nonexistence of knowledge on his part, that the accused belonged to a Scheduled Caste or a Scheduled Tribe when an offence of atrocity was committed, then he would stand convicted on the strength of presumption that he possessed knowledge that the victim belonged to a Scheduled Caste or a Scheduled Tribe if the facts constituting other ingredients of an offence under Section 3 of the Act are proved to exist by prosecution.''

Apart from some other reasons for which respectfully specific disagreement of this Court with the aforesaid findings has to be noted, the main consideration is emerging from the judgment of Hon. Om Prakash, J. himself. While dealing with the question as to whether knowledge is one of the essential ingredients of the offence of atrocities or not, the following findings has been arrived at by his Lordship. At page 45 of the judgment his Lordship has concluded as follows s

"The submission of Sri Tutsi that the ; offences of atrocities under Section 3 being the offences of strict liability, knowledge on the part of the accused is not at all made an ingredient of Section 3 does not seem to be convincing. There is nothing to indicate that Parliament intended to dispense with the ingredient of knowledge on the part of the accused altogether. Parliament would not have done so especially when the accused is subjected to severer punishment for an offence of atrocity under Section 3."

Analysing all the aforesaid findings logically, one may arrive at the following three conclusions seriatim:

(i) One of the ingredients of the offence under Section 3 is that the accused charged with offence under Section 3 had knowledge of fact that the victim belongs to Scheduled Caste/Scheduled Tribe.

(ii) The Court shall presume that the accused had such a knowledge as is referred to above.

(iii) The accused so charged can rebut the presumption that he had knowledge of the victim belonging to Scheduled Caste/Scheduled Tribe.

The question is, are the aforesaid three conclusions tenable. Let it be repeated here again that since this Court is in complete agreement with the other conclusions about validity of the Act and the provisions, it is only this part of the judgment of my revered elder brother Hon. Om Prakash, J. which has to be examined in depth.

At the outset it may be that since reference has been made to the case of Sanjay Datt v. State through C.B.I. Bombay (II) (1994) 5 SGC 410, a word has to be said concerning the said case law. The aforesaid decision of Sanjay Dutt has been pronounced by Hon''ble Supreme Court in the background of the provisions contained in the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TAD A) Section 21 of the TAD A may be usefully reproduced here t

"21. Presumption as to offences under Section 3.(I) In a prosecution for an offence under subsection (1) of Section 3, if it is proved

(a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence ; or

(b) that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence ; or

(c) that a confession has been made by a coaccused that the accused had committed the offence ; or

(d) that the accused had made a confession of the offence to any person other than a police officer, the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.

(2) In a prosecution for an offence under subsection (3) of Section 3, it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the designated Court shall presume, unless the contrary is proved, that such person has committed the offence under that subsection."

It is needless to say that the Hon''ble Apex Court was considering the effect of the legal presumption which had to be drawn in view of the provisions contained in Section 21 TADA when the decision in Sanjay Dutt''s case was pronounced.

At this stage some other parallel provisions existing in other enactments were by law burden has been specifically shifted upon an accused or that presumption has been drawn concerning one of the ingredients of an offence if the other is proved, may be examined here.

Dowry Prohibition Act, 1961 makes the following provisions in Section 8A thereof

Section 8A:

8A. Burden of proof in certain cases.Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under these sections shall be on him.''

Prevention of Food Adulteration Act, 1954 raises a presumption concerning warranty by manufacturers Section 14 thereof may be quoted here for ready reference i

Section 14:

"Manufactures, distributors and dealers to give warranty.No (manufacturer or distributor of, or dealer in), any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor :

(Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.)

Explanation,In this section, in subsection (2) of Section 19 and in Section 20A, the expression "distributor" shall include a commission agent."

Some further deeming clauses concerning offences by companies and liability on some of its officers to be nominated as being responsible in conduct of business have been laid down in Section 17 (1) and (2). These two subsections are omitted because those provisions have become subject matter of discussions in several decisions of the High Courts and the Apex Court.

Likewise Sections 71 and 72 of the Foreign Exchange Regulation Act, 1973 have made permissible some change in the law regarding burden of proof also concerning presumption as to certain documents. For ready reference those two sections are quoted here t

Section 71:

"Burden of proof in certain cases.(1) Where any person is prosecuted or proceeded against for contravening any of the provisions of this Act or of any rule, direction or order made there under which prohibits him from doing an act without permission, the burden of proving that he had the requisite permission shall be on him.

(2) Where any person is prosecuted or proceeded against for contravening the provisions of subsection (3) of Section 8, the burden of proving that the foreign exchange acquired by such person has been used for the purpose for which permission to acquire it was granted shall be in him.

(3) If any person if found or is proved to have been in possession of any foreign exchange exceeding in value (fifteen thousand rupees), the burden of proving that the foreign exchange came into his possession lawfully shall be on him.

Section 72 :

"Presumption as to documents in certain caseWhere any document

(i) is produced 4or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or

(ii) has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed) in the course of investigation of any offence under this Act alleged to have been committed by any person.

and such document is tendered in any proceedings under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him, the court or the adjudicating officer, as the case may be, shall

(a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person''s handwriting and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested ;

(b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence ;

(c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document."

Essential Commodities Act, 1955 have two interesting provisions. One is Section 10C which had provided for presumptions to be made concerning culpable mental state. Section 14 thereof has laid down a different mode of burden of proof. These two sections are quoted for ready reference :

Section 10C :

"Preemption of culpable mental state (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the facts that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.

(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Section 14 :

"Burden of proof in certain cases.Where a person is prosecuted for contravening any order made under Section j,3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other document shall be on him.

Section 123 of the Customs Act, 1962 has also a different provision concerning burden of proof which is as follows :

Section 123 :

"Burden of proof in certain cases.(I) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be

(a) in a case where such seizure is made from the possession of any person,

(i) on the person from whose possession the goods were seized ; and

(ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person ;

(b) in any other case, on the person, if any who claims to be the owner of the goods so seized.)

(2) This section shall apply to gold (and manufactures thereof) watches and any other class of goods which the Central Government may by notification in the official Gazettes specify.

Similar provisions concerning presumption against or burden of proof on accused exist in many other enactments such as N.D.P.S., Prevention of Corruption Act. etc. But why all these special rules of evidence had to be enacted ? The answer to this question depends upon a close scrutiny of the provisions contained in the Indian Evidence Act, 1872. Part III of the Evidence Act describes the said Part as "Production and Effect of Evidence'''' which has five Chapters'' i.e. Chapters VII, VIII, IX, X and XI. For the present discussion the provisions of Chapter VII are relevant which has been described as of the Burden of Proof''. Section 101 reads as follows :

Section 101 :

"Burden of Proof. Whoever desires any Court to give judgment as to any legal right or liability dependent in the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denied, to be true. A must prove the existence of those facts. (emphasis added)

Section 101 and its illustrations would make it clear as to how the things could be proved in a Criminal Court where an offence is sought to be proved against an accused.

Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

This provision contained in Section 103 enables other enactments to shift the burden of proof from the general rule envisaged by Section 101 noted above. Likewise, burden of proving that case of accused is covered within exception or that burden of proving fact especially within the knowledge of any person, lies on that accused or that person.

On a further analyses of this Chapter it has to be noted that some legal presumptions can possibly be drawn by Court such as in matters of relationship in the cases of partners, landlord tenant principal and agent or birth, marriage, etc.

Then comes Section 114 which lays down that the Court may presume the existence of any fact which ha thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Nine illustrations have been narrated where the Court may presume the existence of the fact if the other is proved. Some restrictions have also been provided as guidelines to the court before raising such presumptions governing certain set of circumstances.

By passage of time the Parliament realized that in curtain types of offences some more presumptions should be made permissible to be drawn. Consequently by Act No. 46 of 1983 Section 113A, in the year 1984 Section 112A and in the year 1986 Sections 113B and 114A were enacted. These newly added sections are quoted below ISection 111A.

Presumption as to certain offences.(I) Where a person is accused of having committed any offence specified in subsection (2), in

(a) any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order ; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.

(2) The offences referred to in subsection (1) are the following, namely ;

(a) an offence under Section 121, Section 121A, Section 122 or Section 123 of the Indian Penal Code (45 of 1860) ; (b) criminal conspiracy or attempt to commit, or abetment of, an offence under Section 122 or Section 123 of the Indian Penal Code (45 of 1860).

Section 113A.

Presumption as to abetment of suicide by a married woman

When the question Is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1960).

Section 113B.

Presumption as to dowry death.When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.Pot the purpose of this section, "dowry death" shall have the same meaning as in Section 304 B of Indian Penal Code (45 of 1960). Section 114A.

Presumption as to absence of consent in certain prosecutions for rape. In a prosecution for rape under clause (a) or clause (b) or clause

(c) or clause (d) or clause (e) or clause (g) of subsection (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped she states in her evidence before the Court she did not consent, the court shall presume that she did not consent).

The Indian Evidence Act as it stands after incorporation of the aforesaid amendments makes it possible to draw certain presumptions on facts and further makes it possible to draw compulsive presumption which may be termed as legal presumption. Apart from the Indian Evidence Act and any other special provision in the relevant Act, there is no other method known on the basis of which a Court of law can draw presumption.

It, therefore, follows that in Sanjay Dutt (supra) the Supreme Court discussed the presumption available in Sanjay Dutt case under provisions of TADA Act and reached to certain conclusions. Drawing of presumptions against Sanjay Dutt was thus backed by the relevant law. It will, therefore, not be correct to say that justice a presumption was drawn agains Saajay Dutt about the intended use of the arm unauthorised possessed, a presumption can be raised under Section 3 of the Act that the accused committed the offence of atrocity having the knowledge that the victim belonged to a Scheduled Caste or Scheduled Tribe class.

Keeping that discussion in mind this Court hag no hesitation in saying that Sri Tulsi, learned Additional Solicitor General very intelligently stuck to his argument that knowledge was not one of the ingredients of the offence and, therefore, it was not to be proved by the prosecution that an accused charge under Section 3 of the Act had knowledge that the victim was of S.C./S.T. origin. It must have been rightly thought that in the absence of any other provision, such, an argument was the last resort to obviate the burden of proving the knowledge which squarely lies on the prosecution when it seeks to prove a case against an accused under Section 3 of the Act. Since it is being held that knowledge is one of the ingredients of the offences described in Section 3 of the Act, the argument of Sri Tulsi has to be negative.

In the absence of any provision in the S.C. and S.T. Act or corresponding provision in the Indian Evidence Act there is and for that matter there cannot be, a legal presumption that the accused possessed knowledge of the fact that the victim belongs to S.C./S.T. origin.

In the absence of any provision in the S.C. and S.T. Act or corresponding provision in the Indian Evidence Act there is and for that matter there cannot be, a legal presumption that the accused possessed knowledge of the fact that the victim belongs to S.C./S.T. origin.

An additional argument must be put down here in order to emphasize that no such presumption can be possible under the existing provisions, The following chart will indicate that most type of atrocities are already coveted by one or the other section of the I.P.C. :

3 (1) (i)350, IPC 3 (1) (xii)354/355, IPC

3 (1) (ii)260290, IPC 3 (1) (xiii)276B/354, IPC

3 (1) (iii)350, 353, IPC 3 (1) (xiv)277, IPC

3 (1) (iv)352, IPC 3 (1) (xv)339, 33, IPC

3 (1) (v)350, IPC 3 (2) (i)192, 194, IPC

3 (1) (vi)374, IPC 3 (2) (ii)195, IPC

3 (1) (vii)374, 3 (2) (iii)425, IPC

3 (i) (viii)171A to 171F, IPC 3 (2) (iv)425, 426, IPC

3 (1) (ix)208 to 211, IPC 3 (2) (v)427, IPC

3 (1) (x)182, IPC 3 (2) (vi)201, IPC

3 (i) (xi)503/506, IPC 3 (2) (vii)201/202, IPC

Therefore, most of the atrocities made punishable as offences under the Act can be committed only when those, IPC offences are perpetrated towards a citizen belonging to 3.C./S.T. class and that too by a person "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe".

(emphasis supplied)

To a question directly put to Sri Tulsi as to whether in view of what is contained in Section 3 the burden of proving that the victim belongs to S C./S..T. class lay on the prosecution or not, Sri Tulsi candidly admitted that such a burden squarely lies upon the prosecution. The natural corollary of this questionanswer has to be that the burden lies upon the prosecution to prove that the person who is accused has knowledge that the victim belongs to S.C./S.T. origin.

Coming to question of the provisions law requiring proving of ingredients of the offence by evidence and circumstances, one is compelled to again have a look at the illustrations contained in Section 101 of the Evidence Act. It is said therein that if one desires a Court to give judgment that another should be punished for a crime which the other has committed, one must prove that the other has committed the crime.

The burden of proving the ingredients of offence is always upon the prosecution and at no stage it shifts to the accused. It is no part of prosecution duty to some how book the crook. Even in cases where the defence of the accused does not appear credible or is palpably false, that burden does not become any the less, (SeeS. L. Goswami v. State of M. P., reported in 1972 (3) SCC 22). The burden which rests on the prosecution to establish its case beyond reasonable doubt never shifts. Prosecution must discharge its initial traditional burden to establish the complicity of the accused not until it does so can the question arise whether the accused had acted in selfdefence. (See State of U. P. v. Ram Swamp reported in 1974 (4) SCC 764). Even negative burden is capable of being discharged by appropriate circumstantial evidence. (See Hargun, Sunder Das Godeja v. State of Maharashtra, AIR 1970 SC 1514.) It should never be forgotten that in Criminal Cases the burden lying on the prosecution never shifts. (See State (Delhi Admn.) v. V. S. S a AIR 1980 SO 1382.)

Coming to the proving of the individual ingredients of offences the law has been repeated by Hon''ble Supreme Court that in order that au offence is held proved all the ingredients thereof must be established by the prosecution evidence. No case can succeed if the prosecution evidence fall short of proving all the ingredients.

In a criminal trial the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, it can not succeed. (See Vijayee Singh v. State of C/. P., AIR 1990 SC 1459). In a criminal case burden of proof is on the presumption and Section 106 is certainly not intended to relieve it from that duty. (See Shambhu Nath Mehra v. The State of Ajmer, AIR 1956, SC Page 404). It has been held that a prosecution under Section 66B, Bombay Prohibition Act, burden is on the prosecution to establish that the liquor drunk is prohibited liquor and not permitted liquor. (See State of Bombay v. Narandas Mangilal Agarwal, AIR 1962 SC Page 579.) Neither Sections 103 nor 106 of the Indian Evidence Act can absolve the prosecution from its primary burden of proving its case beyond reasonable doubt. (See Sawal Das v. State of Bihar, AIR 1974, SC Page 778 and, "the law does not cast on the accused the burden of proving that no crime has been committed. (See Attygalle v. The King, AIR 1936, SC Privy Counsel, Page 196).

Before concluding, only a word may be said about the tenor and extent of presumption available to a Court under Section 114 of the Indian Evidence Act. This matter has also been touched and discussed by Hon''ble Supreme Court in a number of decisions. The crystalised legal formulation is that a Court may of course presume such facts as are permissible under Section 114 of the Indian Evidence Act but that will be confined to the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (See Kali Ram v. State of Himachal Pradesh, AIR 1983 SC Page 2773). Therefore, whether in a given case on certain facts proved by the prosecution evidence, a presumption may or may not be drawn of the victim being of S.C./S.T. origin shall depend upon the facts and circumstances of such case. It is impossible to hold that the moment there is a prosecution of some one for an alleged atrocity under Section 3 of the Act, he must be presumed to have had knowledge of the victim being of S.C./S.T. origin.

To the aforesaid extent this Court records its disagreement with the view expressed by Hon''ble Mr. Justice Om Prakash. Therefore, just as other ingredients shall have to be proved by the prosecution it shall have to prove the knowledge of the accused that the victim belongs to S.C/S.T. origin. If in a given case it wants the court trying the offence to draw presumptions under Section 114 of the Indian Evidence Act and whether such presumption is available or not will, depend upon the facts and circumstances of the case and the evidence led therein. The mere prosecution of the accused on the charge for commission of an offence of atrocities under Section 3 of the Act would not by itself make any presumption applicable.

Swami Vivekanand''s clarion call, simultaneously castigating the Society for having crushed the downtrodden may be usefully remember here :

"Modern Cast Distinction is a Barrier to India''s Progress. It Narrows, Restricts, Separates. It will Crumble before the Advance of ideas........."

"Let us open our eyes/see clear as daylight that there is the one Brahman in all, in them and meone Shakti (Devine Energy) Dwells in all........"

"How my heart ached to think of what we think of the poor, the low, in India.

They have no chance, no Escape, no way to climb up......They sink lower and lower every day, they feel the lows Showered upon them by a cruel Society and they do not know whence the blow comes, They have forgotten that they too are men. And the Result is Slavery........

"You merge Yourselves in the void and disappear and let new India arise in your place. Let her ariseOut of the Peasant''s Cottage, grasping the plough, out of the huts of the Fishermen. The cobbler and the sweeper. Let her spring from the grocer''& shop, from beside the oven of the fritterseller. Let her emerge from the factory, from marts and from markets. Let her emerge from the groves and forests, from hills and mountains. These common people have suffered oppression for thousands of yearsSuffered it without murmur and as a result have got wonderful fortitude.."

Threw those treasureChests of yours and those jeweled rings among themAs soon as you can ; and youVanish into air and be seen no moreOnly keep your ears open. No sooner will you disappear than you will hear the inaugural shout of renascent IndiaRinging with the voice of a million thunders and reverberating throughout the universeWah guru ki FatehVictory to the guru"......"

The aforesaid becoming of Swami Vivekananda vibrated through out the length and width of the country and our National Leaders came with the call of complete independence from foreign domination. Under their inspired leadership freedom was accomplished. Then came the constitution in which most of the equalities pleaded by Swami Vivekananda were incorporated.

Our Society has undergone tremendous social charge and the majority of the educated class has ho fooling of caste prejudices. An effort of bringing about homogeneity should be the objective of judicial pouncements, furthering the clause and objective for which such enactments are made. Any one therefore, who commits the atrocities on any member of the Scheduled Caste or Scheduled Tribe deserves severer punishment. The provisions of the Act therefore are clearly saved by the constitutional provisions and no part of it is ultra vires the constitutional rights of the citizens of this Country. It does not serve any useful purpose by referring to some individual incidents where some of our Scheduled Caste and Scheduled Tribe brothers were maltreated nor does it highlight the judicial verdict if an individual aberration against some particular S.C. citizen Is noticed therein. All down trodden people were thus rightly called by Swamy Vivekananda as "NaiNaiain." This quality of NarNarain purvades in every citizen. This Court therefore, would confine itself to say that when individual instances of ruthless action against S.C./S.T. citizen are brought to book, they require severe condemnation and must be tried and punished under the provisions of the S.C.S.T. Act.

With the aforesaid opinion, concurring wholly with the judgment of my esteemed brother Hon. Om Prakash, J. differing only on the question of drawing presumption of existence of knowledge on the part of the accused that the victim belongs to SC/ST category, this Court upholds the validity of the entire SC ST Act.

The humble opinion is thus forwarded to Hon. Mr. Justice Om Prakash for doing the needful.

Decided accordingly.

I. S. Mathur, J.I have the benefit of perusing the learned opinions of my esteemed brothers, Hon''ble Om Prakash, J. and Hon''ble Palok Basu, J.

Under challenge before this Full Bench are the vires of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act) and the various provisions contained in the Act. More particularly Sections 3, 4, 8 and 14 thereof. The questions that were referred to or were permitted to be raised before the Full Bench are :

(1) Where the U.P. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is constitutionally invalid ?

(2) Where Sections 3, 4, 8,14 of the Act are invalid ?

(3) Whether the Special Courts constituted under Section 14 of the Act will have jurisdiction only after committal of the case or cognizance can be taken directly ?

(4) Whether provisions of Section 10 of the Criminal Laws Amendment Act, 1932 are constitutionally invalid ?

(5) Whether the U. P. Amendment Notification No. 777/VIII94(2)87, dated 3171989, published in the U.P. Gazette, dated 281989, making offence under Section 506, I.P.C. cognizable and nonbailable is invalid ?

The vires of the Act were challenged on the ground that the Parliament did not have legislative competence and the provisions of the Act violate Article 15(1) of the Constitution and cannot be saved by clause (4) of Article 15 of the Constitution as the enactment cannot be said for "advancement" of the members of the Scheduled Castes and Scheduled Tribes. The validity of Section 3 was challenged mainly on the ground that some of the provisions contained therein are vague and illegal inasmuch as knowledge or intention has not been made necessary ingredient of the offence and further that the provision for aggravated punishment for the offences mentioned in the section, is discriminatory and arbitrary and thereby violative of Article 14 of the Constitution. The validity of Section 4 has been challenged substantially on the same ground, namely that it does not indicate the necessary ingredient of intention and is otherwise discriminatory inasmuch as only the officers not belonging to Scheduled Castes and Scheduled Tribes category have been made punishable. Section 8 of the Act is claimed to be discriminatory and arbitrary. The challenge to Section 14 of the Act is on the ground that, while providing for constitution of Special Courts, no provision has been made empowering the Court to take cognizance of the cases and it is not clear whether or not committal proceedings will be necessary. Section 10 of the Criminal Laws Amendment Act, 1932 and the two notifications, issued there under, are claimed to be violative of Article 14 of the Constitution and otherwise illegal on the ground that Legislative power has been conferred or exercised and that there are no guidelines provided.

Hon''ble Om Prakash, J. has upheld the vires of the Act and has further held the various Section 10 of the Act to be valid. He has, inter alia rejected the contention raised on behalf of the petitioners that some of the provisions contained in Section 3(1) of the Act are ultra vires on the ground of vagueness or for not providing intention or knowledge as necessary ingredient and has not held that proof of mens rea is not necessary for establishing these offences. The validity of Section 10 of the Criminal Laws Amendment Act and of the notifications issued there under in regard to Section 506, I.P.C. has been upheld. Some observations regarding plight of the Dalits and the failure of the State or the Courts as also in regard to the attitude of the society have also been made,

Hon''ble Palok Basu, J. has agreed with Hon''ble Om Prakash, J. except in regard to Section 3 of the Ace. In regard to Section 3, the view taken is that knowledge must be held to be a necessary ingredient of offences under Section 3(i)(ii)(iii)(vi)(vii)(viii)(ix)(xii)(xiii)(xiv)(xv).

I have gone through the learned opinions of Hon''ble Om Prakash, J. and Hon''blo Palok Basu, J. with great care. While I agree with the views expressed by them in regard to the vires of the Act or generally in regard to the various provisions of the Act, with great respect, I am unable to subscribe to the view taken by brother, Hou''ble Om Prakash, J. that the knowledge or intention is not a necessary ingredient of the offences contained in Section 3(1) of the Act and I agree with the view taken by brother, Hon''ble Palok Basu, J.

Though I fully share the view taken by my oateeiaed brothers, Hon''ble Om Prakash, J. and Hon''ble Palok Basu, J. so Jar as the vires of the Act are concerned, I will like to record some additional reasons. Extensive arguments were made and numerous rulings were cited Dy the learned counsels for the petitioners in support of their submission that this Act is violative of Article 15(1) of the Constitution. The main thrust of the argument against the validity of the Act was that, under clause (4) of Article of the Constitution, the Parliament could enact such a legislation only for the "advancement" of the Scheduled Castes and Scheduled Tribes. The argument proceeded that the Act does not ''advance'' the cause of Scheduled Caster and Scheduled Tribes and, as such, it is not saved by clause (4) of Article 15 and is violative of clause (1) of Article 15 of the Constitution. With great respect to tae learned counsel for the petitioners, I am of the opinion that the argument is based on misreading of Article 15(4) of the Constitution and is, accordingly quite misconceived. Article 15 of the Constitution read as follows ;

"15. Prohibition of discrimination on grounds of religion race caste sex or place of birth. The State shall not discriminate again J any citizen on grounds only of religion, race, caste, sex place of birth oj any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment ; or

(b) the use of wells, tanks, bathing ghost, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

A bare reading of clause (4) will indicate that the word "advancement" qualifies only "socially and educationally backward classes of citizen" and does not qualify "Scheduled Castes and the Scheduled Tribes" at all. After the words "socially and educationally backward classes of citizens", there is the word "or" making it clear that the use of word "advancement" is confined to "socially and educationally backward classes of citizens" only and it does not apply to the words "for the Scheduled Castes and the Scheduled Tribes". This inference will be further obvious from Hindi Text of clause (4) of Article 15 which reads as follows :

It may be noticed from the Hindi Text also that so far as the word "advancement" is concerned that relates to the socially and backward classes of citizens only and does not at all relate to" the Scheduled Castes and Scheduled Tribes. So far as the Scheduled Castes and Scheduled Tribes are concerned, the provision is unconditional and wide. That being so, there is no question of reading "advancement" in Article 15 (4) in relation to the members of the Scheduled Castes and Scheduled Tribes for whom the provisions have been made in this Act.

Since it is apparent from Article 15(4) of the Constitution that word "advancement" does not relate to Scheduled Castes and Scheduled Tribes at all, it is wholly unnecessary to discuss the extensive arguments made or the numerous rulings cited in regard to the concept of "advancement" and I do not propose to do so.

The contention that this legislation is otherwise violative of Article 14 of the Constitution of India must also be found to be untenable. It hardly needs to be stated that according to the well established legal position, the question of discrimination within the meaning of Article 14 of the Constitution will arise only if discrimination is made between the people similarly situated. No question of discrimination and consequently of violation of Article 14 of the Constitution will arise if legislation is made in favour of a class of people who are differently situated from the others. The Constitution itself recognizes that the members of the Scheduled Castes and Scheduled Tribes are distinct class by themselves. This is abundantly clear from the provisions contained in clause (4) of Article 15, Article 17 and Article 46 of the Constitution. In State of Madhya Pradesh v. Ram Krishna Balothia, JT 1995 SC 310, Hon''ble Supreme Court has rejected the contention that the Act is violative of Article 14 of the Constitution. While rejecting the contention regarding the validity of Section 18 of the Act with reference to Section 438 of the Code of Criminal Procedure on the ground of violation of Article 14, the Supreme Court has observed :

"The offences enumerated under the said Act fall into a separate and special class, Article 17 of the Constitution expressly deals with abolition of "untouchability" and forbids its practice in any form."

The Supreme Court has further observed i

"The offences which are enumerated under Section 3 or the offence which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and selfrespect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code.

(Emphasis supplied).

The Constitutional validity of this Act and the various provisions therein was also challenged before a Full Bench of the Rajasthan High Court in Jai Singh v. Union of India, AIR 1993 Raj 177 on the ground of violation of Article 14 of the Constitution., The contention has been repelled by the Full Bench and the Act has been held to be not violative of Article 14 of the Constitution of India. The view taken is quite obviously the correct view and must be endorsed. It must be held that the Act is not violative of Article 14 of the Constitution.

It was sought to be suggested, though rather faintly, that the Act is not within the legislative competence of the Parliament. In this context, reference was made to clause (i) of Article 15 of the Constitution. The argument must be rejected without much ado. The legislative competence of the Parliament or of the State Legislatures is to be found in Articles 245 and 246 of the Constitution and not really in Article 15 or any such provision. Subject to the mandate of Article 3IC of the Constitution, the legislation must not, of course infringe Part III of the Constitution. There could be no doubt that the Parliament did have legislative competence to enact this legislation in exercise of power conferred under Article 246 of the Constitution and the List I (Union List) and List 111 (Concurrent List). It has been already indicated above that his enactment doss not violate Article 15(1) or 14 of the Constitution. It has been further noticed that this Legislation is quite inconformity with Article 15 (4), Article 17 and Article 46 of the Constitution. Article 46 is wide enough to include this kind of legislation. No doubt, Article 46 is contained in Part IV relating to Directive Principles of State Policy but it is apparent from Article 31C that "no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19". Accordingly, it must be held that the enactment is clearly within the competence of the Parliament and cannot be challenged on the grounds suggested.

So far as Section 3(1) of the Act is concerned, it has been indicated by roe in the earlier part of the judgment that I am unable to subscribe to the view taken by our esteemed brother Hon''ble Om Prakash, J. that mens rea, knowledge or intention, is not necessary in respect of the offence mentioned in clauses (i), (iii). (vi), (vii), (viii), (ix), (xii), (xiii), (xiv) and (xv) of subsection (1) of Section 3 of the Act. I agree with Hon''ble Palok Basu, J. that the accused cannot be presumed to have knowledge regarding victim belonging to the Scheduled Castes and Scheduled Tribes and, like any other ingredient, it will have to be proved. In my opinion mens rea and/or knowledge, as the case may be, must be held to be essential both in respect of the main offence as also in respect of the additional ingredient, namely that the victim belonged to Scheduled Castes/Scheduled Tribes. It is settled law that there is a presumption about mens rea being an essential ingredient of a statutory offence and merely failure to state it specifically as an ingredient of an offence in a statute cannot lead to the conclusion that it is not an ingredient of the offence. In a criminal action, the general condition of penal liability is indicated in the maxim sit reef, i.e. the Act alone does not amount to guilt; it must be accompanied by a guilty mind (see Kartar Singh v. State of Punjab, 1994 (3) SCC 569).

3rd edn. Vol. 10 in para 508, the

In Halsbury''s Laws of England, legal position is stated thus :

"A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice Knowledge, willfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens rea and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute." (Emphasis supplied)

In Russell on crime, 11th dn. Vol. 1 at page 64 it is stated :

"........There is a presumption that in any statutory crime the common law mental element, mens rea, is a essential ingredient."

In Criminal Pleading, Evidence and Practice by Arch bold, 35th Edition at page 24, the legal position has been stated thus :

"It has always been a principle of the common law that mens rea is an essential clement in the commission of any criminal offence against the common law. In the case of statutory offences it depends on the effect of the statute......There is a presumption that mens rea is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals.

(Emphasis supplied)

In Sherrus v. De Rutzen. (1895) 1 918, 921 which is the leading case on the point, Wright, J. has mentioned the legal position on the point as follows :

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence ; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subjectmatter with which it deals and both must be considered."

In Brend v. Wood, (1946) 62 TLR 468, 463 while dealing with an emergency legislation relating to fuel rationing, Goddard C. J. has observed :

"There are statutes and regulations in which Parliament has seen fit to create offences and make people responsible before Criminal Courts although there is an absence of menu rea, but it is certainly not the Court''s duty to be acute to find that mens rea is not a constituent part of a crime. It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

In State of Maharashtra v. Mayer Hans George, (1963) SCR 123, Hen''ble K. Subba Rao, J. referred to and analysed various decisions of the Courts in England and in India as also the position of law stated in various law treatise and summed up the legal position thus

"The law on the subject relevant to the present enquiry may briefly be stated as follows. It is a well settled principle of common law that mens rea is an essential ingredient of a criminal offence. Doubtless a statute can exclude that element, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. To put it differently, there is a presumption that mens rea is an essential ingredient of a statutory offence ; but this may be rebutted by the express words of a statute creating the offence or by necessary implication. But the mere fact that the object of a statute is to promote welfare activities or to eradicate grave social evils is in itself not decisive of she question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability help him to assist the State in the enforcement of the law : can he do anything to promote the observance of the law ? A person who does not know that gold cannot be brought into India without a licence or is not bring into India any gold at all cannot possibly do anything to promote the observance of the law. Mens rea by necessary. implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof."

(Emphasis supplisd)

Though the judgment of Hon''ble Subba Rao, J. is a minority judgment, the legal position stated by him has been endorsed by Hon''ble Ayyanger, J. as would appear from his endorsement of the following principle laid down in tin case of Brend v. Wood (supra) s

"It is........of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless the statute, either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has get a guilty mind."

Hon''ble Ayyanger, J. has further observed, referring to the above principle :

"Mr. Sorabjee is justified in referring "us to these rules regarding presumption and construction and it may be pointed out that this Court has, in Ravula Hariprasada Rao v. The State, (1951) SCR 327, approved of this passage in the judgment of Lord and the principle of construction underlying it. We therefore agree that absolute liability is not to be lightly presumed but has to be clearly established." (Emphasis supplied)

Hon''ble Ayyangar, J. also approved the following observation of Wills, J. in R. v. Talwn, (1989) 23 168 :

"Although, prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule and a statute may relate to such a submatter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to be wrong or not."

Fn the case of Mayer Hans, Hon''ble Subba Rao J was of the opinion that the appeal be dismissed as mens rea was not proved, Hon''ble Ayyangar, J. and Hon''ble Mudholkar, J. allowed the appeal on the basic consideration that "if the Central Government, by notification in the official Gazette imposed a ban on any person bringing gold into India any person who brought such gold in contravention of the notification would be guilty of an offence under this section".

It would clearly follow from the authoritative texts and the various decisions, noticed above, that the basic principle of common law is that mens rea is an essential ingredient of a criminal offence, The statute can, no doubt, exclude that element but it is a sound rule of construction that mens rea must be presumed to be a necessary ingredient of a criminal offence unless the statute expressly or by necessary implication excludes it. The mere fact that the object of the statute is to promote welfare activities or to eradicate grave social evil is in itself not decisive of the question whether the element of guilty Tired is excluded from the ingredients of the offence. Mens rea by necessary implication can be excluded from a statute only where it is clear that the implementation of the object of statute would otherwise be defeated. In other words, there is presumption about mens rea being an essential ingredient of an offence and it cannot be considered to be excluded unless this exclusion is expressly stated or necessarily implied. This implied exclusion will have to be investigated with reference to the object and terms of the statute. It may also be observed that mere omission to mention knowledge or intention or mens rea in a particular provision will not be sufficient for drawing the inference that mens rea was intended to be excluded.

There is no express provision in the Act excluding mens rea. Before we proceed to consider as to whether exclusion of mens rea can be necessarily implied from the object and provisions of the Act, we may dispose of the objection of the learned Additional Solicitor General, Sri K. S. Tulsi, to the effect that the Courts are not entitled to read anything in the provision which is not there expressly. The argument of the learned Additional Solicitor General was that reading the ingredient of mens rea in the aforesaid provisions will amount to legislation which, according to him. The Court are not entitled to do.

HO. The arguments advanced by learned Additional Solicitor General in this case reflected his immense labour and learning and manner of his submission was so persuasive, sweet and sober that I would have hated to disagree with him even on this point but for the conviction that interpretation of law, as evidenced by authoritative texts and decisions of Hon''ble Supreme Court and other Courts, does not support that view. Once it is found that mens rea is presumed to be a necessary ingredient of an offence, its exclusion has to be clearly established. The necessary corollary of this legal proposition will be that, if exclusion of mens rea is not established, its existence as a necessary ingredient of an offence will have to be presumed and read into the provision. That being so, there is no question of legislating or supplying any words. It will be merely reading into the provision what is required to be read therein according to law.

Moreover, even though it is true that the Courts are not entitled to ''''Legislate" and it is an exclusive function of the Parliament or the State Legislatures, this does not mean that, where the meaning of a provision is not clear, the Courts are not entitled to find out the intention of the Parliament or of the State Legislature or to read into the provisions certain words to make them constitutionally valid. The settled principle of interpretation is that, where some illegality or unconstitutionality is alleged. The primary attempt of the Courts has to be to interpret a provision, as far as possible, in such a manner that with make it constitutionally valid. This may be done by finding out the real intention of the Parliament and, in a case where this intention is not clearly discernable, by supplying words to give the provision a meaning consistent with the provisions of the Act and the law. In Inder Sain v. State of Punjab, 1973(2) SCC 372, Hon''ble Supreme Court interpreted Sections 9 and 10 of the Opium Act, 1878 (1 of 1878) to determine whether the mens rea could be read into the provision. The appellant, Inder Sain, got a parcel of apples released from the Railways. While he was carrying the parcel away from the Station, he was intercepted by the police and the parcel was found 10 contain opium along with apples. The appellant took the plea that he had no knowledge that the parcel contained opium also. He was, however, convicted by trial Court. The Sessions Judge dismissed the appeal and the revision before the High Court was also dismissed. Hon''ble Supreme Court referred to the decisions in Brand v. Wood (supra), Shvrra v. De Rutzen, 918 and Sweet v. Parslev (1969)2 WLR 470 and observed as follows :

"Normally, it is true that the plain ordinary grammatical meaning of the words of an enactment affords the best guide. But in cases of this kind, the question is not what the words mean but whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every offence and, the authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration" (Emphasis supplied)

In this case of Inder Said, though Hon''ble Supreme Court confirmed the findings of the Courts below and upheld the conviction but it was done of the premises that on the proof of possession of article the burden of proof that the accused did not commit an offence will be upon the accused. Since it was proved that the accused was in possession of opium and he failed to show that he had no knowledge of opium being in the parcel, the Supreme Court held him guilty. The Supreme Court observed that the appellant never put forward a case that he bona fide believed that the parcel contained only apples and he had no case that to his knowledge the parcel contained anything other than apples.

In Maxwell on Statutes (10th Edn.) at page 229, the legal position is stated thus:

"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence..............Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman''s of ignorance of the law, except in a case of necessity, or the absolute intractability of the language used." (Emphasis supplied)

In Seaford Court Estate Limited v. Asher, 1949 (2) All ER 155 at p. 164, Denning, L. I. has observed :

"When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament...................... and then he must supplement the written word so to give force and life to the intention of the Legislature....................

A Judge should ask himself the question how if the makers of the Act had themselves come across this truck in the texture of it, they would have strengthened in out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."

(Emphasis supplied)

Though the above observations of Lord Denning were disapproved in appeal by the House of Lords, Hon''ble Supreme Court has endorsed this position of law in M. Pentiah v. Muddala Veeramallapa 1961(2) SCR 295 and also in Bangalore Water Supply v. Rajappa, AIR 1978 SC 548. In Bangalore Water Supply v. A. Rajappa, Hon''ble Supreme Court has observed ;

"Perhaps with the passage of time, what may be described as the extension of a method resembling the "armchair rule" in the construction of wills, Judges can more frankly step into the shoes of the Legislature where an enactment leaves its won intentions in much too nebulous or uncertain a sale." (Emphasis supplied)

In Guiteppi v. Walling, 144F (2d) 608 pp. 620, 622 (CCA 2d, 1944), quoted in 60 Harvard Law Reviaw 370, p. 372, the legal position is. stated as follows :

"The necessary generality in the wordings of many statutes and ineptness of drafting in others frequently compels the Court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the Courts in their way, as administrators in their way, perform the task of supplementing statutes. In the case of Courts, we call it ''interpretation'' or filling in the gaps'', in the case of administrators we call it ''delegation'' or authority to supply the details."

In Chairman Board of Mining Examination and Chief Inspector of Mines v. Ramjee, AIR 1977 SC 965 Hon''ble Krishna Iyer, J. has observed :

"To be literal in meaning is to see the skin and miss the soul of the Regulation."

Hon''ble Supreme Court reviewed the aforesaid decisions in Directorate of Enforcement v. Deepak Mahajan and another, AIR 1994 SC 1775 2 1994 JIC 774 (SC) and observed :

"True, normally Courts should be slow to pronounce the Legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to which up the legislative intent, it is permissible for Courts to take into account of the ostensible purpose and object and the real legislative intent" (Emphasis supplied)

Hon''ble Supreme Court has further observed :

''''Authorizing (sic authorities 1) a few of which we have referred to above, show that in given circumstances, it is permissible for Courts to have functional approach and look into the legislative intention and sometimes may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that now absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become fertile." (Emphasis supplied)

In Kartar Singh v. State of Punjab, 1994(3) SCC 569, relied upon by the learned Additional solicitor General, also the Constitution Bench of the Supreme Court referred to the earlier decisions in the case of Inder Sainal v. State of Punjab 1973(2) SCC 372 (supra), Directorate of Enforcement v. Deepak Mahajan (supra) and some other decisions and observed as follows ;

"In a criminal action, the general conditions of penal liabilities are indicated in old maxim the act alone does not amount to guilt, it must be accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may thing it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge. However, unless a statute either expressly or by necessary implication rules out ran in cases of this kind, the element of ''mens rea must be read into the provisions of the statute. The question is not what the ward means but whether there are sufficient grounds for inferring that the Parliament intended to exclude the general rule that mensrea is an essential element for bringing any person under the definition of ''abet''.

(Emphasis supplied)

The Constitution Bench has also referred to the observation of Hon''ble Subba Rao J. in the case of Mayer Hans George,, (supra) and in Nathual v. State of M. P., AIR 1966 SC 43, which have been extracted in the earlier part of this judgment and has observed :

"There are judicial decisions to the effect that it is generally necessary to go behind the words of the enactment and take other factors into consideration as to whether the element of ''mens rea'' or actual knowledge should be imported into the definition. See (i) Brand v. Wood (2) Sherras v. De Rutzen, (3) Nicholls v. Hall and (4) Inder Sain v. State of Punjab.

In view of what has been laid down by the Hon''ble Supreme Court, reiterating and adopting the law laid down by the Courts in England, it must be held that even though the Courts will go by the plain language of a provision for interpretation, there is no legal bar for the Courts to find out the real intention of the Parliament of the State Legislature and for that purpose to go behind the words of the enactment and take other factors into consideration to determine as to whether element of mens rea or actual knowledge has been excluded specially or by necessary implication or it should be road into the provision. In case mens rea is not excluded either specifically or by necessary implication, the Courts will be within their right to read mens rea into the provisions. The Courts are entitled to take other factors into consideration and interpret a provision, by supplying words, if necessary, in order to give effect to the legislative intent, the spirit of the enactment and legal requirement with a view to ensuring that no absurdity or practical inconvenience results and the legislative exercises and its scoops and object does not become futile.

The decks having thus been cleared for finding out the real intention of the Parliament as to the exclusion of mem rea or knowledge and, if that intention be not readily discernablo, to consider whether such exclusion is to be necessarily implied, we may proceed to investigate the same. It has been noted above that there is no provision specifically excluding mens rea or knowledge. Can this exclusion be necessarily implied ? It is difficult to do so. As has been discussed above, the exclusion of mens rea by necessary implication has to be determined with reference to the objects and the provisions of the Act. The mere fact that the object of the Act is to promote welfare activity or eradication of a garage social evil is not decisive of the question whether the element of guilty mind has been excluded from the ingredient of the offence (See Mayer Hans George (supra)). In fact the statement of object and reasons of the Act, extracted in the opinion of brother Hon''ble Om Prakash, J. makes it clear that the offences under Section 3 of the Act will be offences only if they are committed for the additional reason that the victim belonged to Schedule Castes or Scheduled Tribes. Accordingly, in order to establish an offence under the Act, the prosecution has to establish that the offence has been committed with intention or knowledge that the victim belongs to that category and for that reason.

In order to determine whether exclusion of mens rea or knowledge could be necessarily implied from the concerned provisions of the Act, we may, at this stage reproduce them :

"3. Punishment for offence of atrocities.(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Triba

(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance ;

(iii) forcibly removes clothes from the person of a member of a Scheduled Carets or a Scheduled Tribes or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity ;

(vi) compels or entices a member of a Scheduled Castes or a Scheduled Tribes to do ''beggar'' or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;

(vii) forces or intimates a member of a Scheduled Castes or a Scheduled Tribes not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law ;

(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe ;

(ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe ;

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would have otherwise agreed :

(xiii; Corrupts or fauls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Caste or the Scheduled Tribe so as to render it less fit for the purpose for which it is ordinarily used ;

(xiv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village other place of residence,

shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."

The learned Additional Solicitor General advanced two main arguments in support of his submission that exclusion of mens rea or knowledge must be necessarily implied from these provisions. His first submission was that the very fact that mens rea has been made a necessary ingredient of some of the offences mentioned in Section 3 while not so in respect of the other offences must lead to the conclusion that mens rea or knowledge was intended to be excluded. It is difficult to accept this submission. As has been indicated above with reference to the decisions of Hon''ble Supreme Court and the Courts in England as also the authoritative texts, no such presumption can be drawn. In fact, the presumption is to be to the contrary as "u is the sound rule of construction adopted in England and, accepted in India to construe a statutory provision creating an offence in conformity with common law rather than against it."

It will appear from the provisions of Section 3 of the Act, including the provisions extracted above, that the offences mentioned therein consist of two parts. The first part relates to the main offence which, as brother Hon''ble Palok Basu, J., has noticed, in his opinion, are same or similar to the offences under the Indian Penal Code. Intention of knowledge are essential ingredients of such offences under the Indian Penal Code. The Second part contains an additional ingredient that the offence is committed against a person belonging to the Scheduled Caste or Scheduled Tribe. For this additional ingredient, harsher punishments have been provided under the Act. If these provisions are interpreted to mean that mens rea or knowledge is not an essential ingredient of these offences and that the offence will be deemed to be committed merely because the victim happens to be belonging to Scheduled Caste or Scheduled Tribe. It will lead to rather absurd result. If any of these offence is committed by more than one person, some belonging to the Scheduled Castes and Scheduled Tribes and others not belonging to that category, the persons belonging to the Scheduled Castes and Scheduled Tribes will have to be dealt with under the provisions of the Indian Penal Code while the persons who do not belong to Scheduled Castes and Scheduled Tribes will have to be dealt with under this Special Act. In the cases under the Indian Penal Code, intention or knowledge is a necessary ingredient of all the offences. If the exclusion of mens rea or knowledge is inferred in regard to the offences mentioned in the Act, the result would be that for the same offence, on failure to prove mens rea or knowledge the accused belonging to Scheduled Castes and Scheduled Tribes may be acquitted while the accused not belonging to Scheduled Castes and Scheduled Tribes may be convicted. For the same offence, two contrary judgments may result. This could never be the intention of the Parliament as this inference would lead to abjured result.

That the Parliament could not have intended to exclude mens rea or knowledge from these offences will also appear from the fact that the mens rea or knowledge has been made an essential ingredient of all the offences contained in subsection (2) of Section 3 of the Act. Apart from the other provisions contained in subsection (2), Clause (v) needs to be specially noticed. According to this clause, whoever, not being a member of a Scheduled Caste or a Scheduled Tribes "commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment far life and with fine." If the offences under Indian Penal Code mentioned in clause (v) would be offences under this Act only if they are committed against the victim with the intention or knowledge as required under IPC and on the ground that such person is a member of the Scheduled Castes and Scheduled Tribes, there is no rational reason why this basic ingredient should be inferred to have been excluded from the aforesaid provisions of Section 3(1). There is also no rational or understandable reason for making intention or knowledge an essential ingredient for offences mentioned in clauses (ii) (iv) (v) (x) (vi) of Section 3(1) and the offences mentioned in subsection (2) and not incorporating the same knowledge or intention in the other provisions. In spite of our repeated queries we were not furnished any rational reason for making knowledge or intention necessary ingredient of the number of offences mentioned in Section 3 and allegedly intentionally excluding this ingredient from the other aforesaid provisions.

As is evident from Section 3 of the Act, the offences, if they are committed against the members of the Scheduled Castes and Scheduled Tribes, are treated to be aggravated offences. This is clear from the fact that in some cases, minimum sentence has been prescribed and in other cases, maximum sentence has been enhanced. It is reasonable to infer that these graver punishments were intended to be awarded only if the accused commits the offence with intention or knowledge that the person against whom the offences have been committed belongs to that category and for that reason.

It is thus evident that neither by specific statement nor by necessary implication it could be inferred that the Parliament intended to exclude mensrca or knowledge deliberately. The omission, it appears, is either due to drafting fault, or, perhaps, on a consideration that since the offences have been mentioned to be so on the ground that they are committed against the Scheduled Castes and Scheduled Tribes, the intention or knowledge will have to be established on a "settled principle of common law" (See State of Maharashtra v. Mayer Hans George. Since the exclusion cannot be inferred, the principle of common law that mens rea is an essential ingredient of the offences must apply. It has been noticed above that even if mens rea is not specifically stated as an essential ingredient of the provision, the Courts will be within their right to read it into such a provision. Failure to do so may make the provision vulnerable.

The second submission of the learned Additional Solicitor General against reading mens rea or knowledge into Section 3 of the Act is, in my opinion, equally untenable. The contention of the learned Additional Solicitor General was that there are some offences of strict liability and, in such offences, mens rea may not readily be read into and that offences mentioned in Section 3 of the Act are such offences. Reference in this connection was made to the provisions of Terrorists and Disruptive Activities (Prevention) Act, 1987, Dowry Prohibition Act, 1961, Foreign Exchange Regulation Act, 1973 and Customs Act, 1962. It has to be noticed that in all such cases where mens rea is ''excluded'', there is specific provision to this effect and the exclusion is dependent upon some tangible fact discovered. In the case of TADA. the presumption under Section 21 about the knowledge is to be drawn on the basis of the fact that explosives or any other substance has been recovered or the finger prints have been found or financial assistants rendered. In Dowry Prohibition Act, 1961, the presumption is dependent upon taking or demanding dowry. In Foreign Exchange Regulation Act, 1973, the presumption sought to be drawn under Section 71 is on the basis of the fact that some foreign exchange has been recovered or some act has been done which is prohibited. In Customs Act, 1962, the burden of proof under Section 123 is sought to be laid on the basis of seizure of goods. In Inder Sain v. State of Punjab (supra), Hon''ble Supreme Court has held that if the accused is shown to have any concern with the opium recovered or he has the direct relationship with the article or has otherwise dealt with it, he will be presumed to have committed the offence. The interpretation as to the knowledge has been made on the basis of physical act of possession. The Supreme Court referred to the case Reg v. Warner, (19621 2 AC 256, 289, wherein the House of Lords was concerned with the question as to whether the appellant there was in unauthorized possession of a scheduled drug and it was held that it is not necessary to prove mens rea apart from the knowledge involved in the possession of the article. Referring to the majority decision in the case, Hon''ble Supreme Court has observed that "majority decision would show that in a case of this nature, it is not necessary for the prosecution to prove that the accused had consciousness of the quality or the nature of thing possessed and that it would be sufficient If it is proved that a person was knowingly in possession of the article." In regard to the aforesaid offences under Section 3(1), there is no such objective or tangible fact in existence to enable the Court to draw the presumption of knowledge or intention. For this reason and the reasons stated above, it is not possible to accept the submission that intention or knowledge cannot be considered to be an essential ingredient of the offence.

In view of what has been discussed above, I am of the opinion that mens rea or knowledge must be read into both parts of the aforesaid provisions of Section 3(1) of the Act. The offences will be made out only if they and committed with the intention or knowledge necessary for the main offence and, in addition, it must be established that the accused had knowledge regarding victim belonging to the Scheduled Caste/Scheduled tribe and that the offence was committed for that reason. For the same reasons, mens rea or knowledge must be read into Section 4 of the Act and it must be held that offences mentioned in the section will be an offence only if it is committed with the knowledge and for the reason that person concerned belongs to the Scheduled Castes or Scheduled Tribes. Any other interpretation may make these provisions vulnerable.

The vires of Section 14 of the Act were challenged mainly on the ground of vagueness as it does not clarify as to whether the Special Court have jurisdiction to take cognizance of the case directly on only on committal by the Magistrate concerned. It was also suggested, though rather faintly, that creation of Special Court is unconstitutional. It has been made clear by brother, Hon''ble Om Prakash, J. that the provision is valid. It has also been held that committal proceedings will be necessary and the Special Court will have jurisdiction only after the case is committed to it. This matter was considered by a Division Bench of this Court in Afaq Ahmad v. Slate of U. P. Writ Petition No. 385 (H/C) of 1994, decided on 7101994 1995 JIC 745 (All) (LB). The Division Bench has upheld the validity of Section 14 of the Act and has held that committal proceedings will be necessary. The decision of the Division Bench finds full support from the decision of Hon''ble Supreme Court in A. R. Antulay v. R. S. Nayak, AIR 1984 SC 718. The view taken by the Division Bench and the reasons given therein are endorsed and reiterated.

The validity of Section 14 was also challenged on the ground that it does not provide for a situation where an offence if committed by a group of people, out of whom some belong to Scheduled Castes and/or Scheduled Tribes. The submission was that, in such a case, two separate trials may be required to be conducted which may result in contrary judgments, it is not possible to accept this submission either. It is evident from Sections 2 (1)(d) and Section 14 of the Act that Special Court is "a Court of Session". It is a Court of Sessions which is to be designated as a Special Court. By being designated a Special Court, the Court of Sessions does not cease to be such a Court. According to Section 209, CrPC of the present Code, it is "the case" that is to be committed to the Court of Sessions unlike the provision contained, in the earlier Code of 1898 where under the ''accused'' used to be committed. Since, according to the existing Code, it is the ''case'' which is to be committed, it is obvious that the Magistrate will commit the entire case to the Special Court which will obviously mean committal of ail the accused, i.e. those not belonging to the Scheduled Castes and Scheduled Tribes and also belonging to those categories and the Special Court, which is also a Sessions Court, will have jurisdiction to deal with entire case.

So far as the challenge to the vires of Section 10 of Criminal Law Amendment Act, 1992 or of the two notifications dated December 29, 1932 and August 2, 1989 are concerned, I respectfully agree with the view take by Brother Hon''ble Om Prakash, J. and Hon''ble Palok Basu J. The vires of this Act and notifications issued in the State of Gujarat were challenged before a Division Bench of the Gujarat High Court in Vinod Rai v. take of Gujarat, 1981 CrLJ 232. The Division Bench of Gujara High Court has upheld the vires of Section 10 and also of the notification issued thereunder making offence under Section 5Q6 cognizable and nonbailable when committed in the city of Ahmadabad. I agree with the view taken and the reasons given and reiterate the same.

Our esteemed brother, Hon''ble Om Prakash, J. has made certain observation regarding plight of the ''Dalits'' and apathy of the society, the Government and the Courts towards their lot. While I fully share the anguish and the concern of our esteemed broth her regarding plight of Dalits'' and join him in his observations in regard to the need for concerned efforts for the improvement of their lot, with greatest respect and utmost humility, I feel that the condemnation of the entire society, the whole lot of the socalled ''Caste Hindus'', the State and the Courts may be rather uncharitable. We have ample proof of the fact that the vast majority of the society is for the ''enlistment'' of these ''forgotten'' and ''downtrodden''. Whether it be the question of providing reservation in the services or appointment to the high constitutional and other offences, giving financial help or providing best of education electing to the local bodies or nominating to the high offices, the society is vociferously speaking out with one voice in their favour. Not one political party, not one social organization worth the name, has opposed the numerous moves for betterment of their lot. The efforts of the members of the Constituent Assembly in providing such salutary provisions in the Constitution as Articles 15 (4), 17, 46, 330, 332 and 335 and of the Members of the Parliament in enacting Protection of Civil Rights Act, 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as also the concerned efforts of the Governments, both at the Centre and the States, since independence, cannot be brushed aside or wholly ignored. The debates of the Parliament in respect of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, placed before us by the learned Additional Solicitor General, indicate rare unanimity in the Parliamentary history. The Bill was passed without dissent. We must hail and applaud this great and glorious event in Nations history. For it reflects the deep concern and strong will of the entire nation, the whole correction of people and not merely of a particular section of the society.

A few stray incidents do not make out a rule. An errant, criminal minded and misguided section of the society cannot be considered to be the representative of the whole. These most unfortunate and abominable incidents have been and are to be condemned by one and all in the strongest terms. But for the criminal acts of the few, the State, the Courts and the entire society may not be condemned. The condemnation of the entire members of the socalled ''Caste Hindus'' may, indeed, be spared and their parents excused for giving birth to them in the society to which they belong for they had no control over the accident of their birth. The actions of particular individuals or section of society, if evil, must surely be condemned in the strongest terms and I wholeheartedly join my esteemed brother, Hon''ble Om Prakash, J. in such condemnation.

It may be true that 75% of the cases relating to Scheduled Castes and Scheduled Tribes have ended in acquittal. But acquittal rate even in respect of other offences is quite as high, not because of the fault of the laws or the apathy of the Courts but basically due to the apathy of the people towards crime. They are extremely reluctant to cone forward to assist the police or the Courts, partly because of the fear of reprisal but mostly because they seem to think that a criminal case is like a civil action, a dispute between two parties in which they are not required to involve themselves. They are oblivious of the fact that crime against an individual is, in fact, crime against the entire society and as members of the society they have a social duty to discharge. The cases result in acquittal not because they relate to Scheduled Castes or Scheduled Tribes but because of such attitude of people in general towards crime. Faulty investigation and careless prosecution are the other contributory factors.

The results achieved so far, though may not be astounding or wholly satisfactory, nevertheless, cannot be aside to be unsubstantial. As of today, we have number of Honourable Chief Ministers, Ministers and other high dignitaries belonging to this class of people. The entry of the class of people in services and even in educational institutions has been assured. Financial help and other incentives are being given literally. What has been achieved must be lauded though clarion call and exhortation for concerted continued efforts will certainly be in order.

It is, indeed, true much still needs to be done to imbibe in this class of people stronger felling of selfrespect and dignity, inferior to none and to raise their social status and economic condition as also to change the menial attitude of the errant, criminal minded and misguided section of the society. How we wish we could achieve this pious goal immediately batunfortunately, this does not seem to be practical. The malady (hat existed for thousand of years may be difficult to root out within a few decades or by law alone. What is necessary is to continue the efforts, with vigour and wisdom and for this purpose, we must, in the words of Swami Vivekanand, "Stand, Awake and Stop not till the goal is reached."

In view of the above discussion, in my opinion, the answers to the questions referred to the Full Bench or permitted to be raised before it, are as follows :

(1) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is Constitutionally valid. The Act is within the legislative competence of the Parliament and is not violative of the Articles 14, 15 (1) or any other provision of the Constitution.

(2) Section 3 of the Act is valid subject to the following observation :

(a) Mens rea or knowledge, as the case may be, is an essential ingredients of the offences mentioned in Section 3, including the offences, mentioned in clauses (i) (iii), (vi), (vii), (viii), (ix), (xii), (xiii), (xiv) and (xv) and shall be read into these provisions.

(b) Mens rea or knowledge referred to in clause (a) above, shall be considered to be necessary ingredient in both parts of the offence. In other words, it will have to be established that the offence was committed with the intention or knowledge, as the case may be and that it was committed whether the knowledge and on the ground that the victim belonged to Scheduled Caste or Scheduled Tribe.

(c) Where the second ingredient, namely that the offence was committed on the ground that the victim belonged to Scheduled Caste or Scheduled Trible is not proved, accused, may still be liable under the relevant provision of the IPC and for this purpose, it will be proper for the court concerned to frame charges under the relevant provision of the Indian Penal Code in the alternative.

(3) Section 4 of the Act is valid subject to the clarification that intention or knowledge shall be an essential ingredient of the offence and the offence mentioned in the provision will be made out only on the proof of the fact that it was committed on the ground that the complainant or the person concerned belonged to Scheduled Caste or Scheduled Tribe.

(4) Section 8 of the Act is valid.

(5) Section 14 of the Act is valid subject to the observations that Special Court shall have no jurisdiction to take cognizance of the offence directly and the case will have to be committed to that court by (the concerned Magistrate and further that, in case of offence committed jointly by the persons not belonging to Scheduled Castes or Scheduled Tribes and those belonging to that category, the Special Court will have jurisdiction to try the entire case.

(6) Section 10 of the Criminal Laws Amendment Act, 1932 is valid.

(7) U, P. Government Notification dated 3171989, makingoffence under Section 506, IPC cognizance and nonbailable is valid.

Decided accordingly.