Raju Gounder and others vs The Union of India and others

K.A. Swami, C.J.—This appeal is preferred against the order dated 3-8-1994 passed by the learned single Judge in W.P. No. 13442 of

1994. Of course, the learned single Judge has decided a batch of writ petitions by the common order under a appeal; W.P. No. 13442 of 1994

was one of them. The petitioners and several others challenged the validity of S. 18 of the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989, Central Act 33 of 1989, (hereinafter referred to as ''the Act'') on the ground that the provisions contained therein are

violative of Arts. 14 and 21 of the Constitution. Learned single Judge has held that the provisions contained in S. 18 of the Act are not violative of

Arts. 14 and 21 of the Constitution; accordingly, the writ petition in question along with several other connected writ petitions has been dismissed.

Having regard to the contentions urged before us, the following point arises for consideration :

Whether the provisions contained in S. 18 of the Act are violative of Arts. 14 and 21 of the Constitution ?

2.1. Section 18 of the Act reads thus :

Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in S. 438 of the Code shall apply in relation to

any case involving the arrest of any person on an accusation of having committed an offence under this Act.

It is contended that the aforesaid provision is arbitrary, unreasonable and the classification made of the offenders under the Act and the offenders

under the general law viz. the IPC, is unreasonable and has no nexus to the object of the Act. The Act is passed with the objects as stated in the

statement of objects and reasons, the relevant portion of which is as follows :

Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying

to assert their rights and this is not being taken very kindly by the orders. When they assert their rights and resist practices of untouchability against

them or demand statutory minimum wages or refuse to do any bonded forced labour, the vested interests try to cow them down and terrorise

them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for

the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is

resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend

of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass

killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes.

Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the IPC have been found

inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-

Scheduled Tribes has, therefore, become necessary.

The term ''atrocity'' has not been defined so far. It is considered necessary that not only the term atrocity should be defined but stringent

measures should be introduced to provide for higher punishment for committing such atrocities It is also proposed to enjoining on the States and

the Union Territories to take specific preventive and punitive measures to protect the Scheduled Castes and the Scheduled Tribes from being

victimised and where atrocities are committed to provide adequate relief and assistance to rehabilitate them.

It is clear that even though several penal provisions are contained in the IPC and the Protection of Civil Rights Act, 1955, nevertheless, the

atrocities against the Scheduled Castes and Scheduled Tribes persons did not subside and they became victims of attack by vested interests and

there has been an increase in the disturbing trend of commission of certain attrocities like making the Scheduled Castes persons eat inedible

substances like human excreta and attacks on and mass killings, of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging

to the Scheduled castes and the Scheduled Tribes. Therefore, the parliament considered it necessary to pass a special law viz. the Act and specify

the offences and the punishments therefor. While doing so, it was also considered necessary that in order to have an effective enforcement of the

provisions of the Act and to ensure that such atrocities are not repeated, the provision of S. 438 of the CPC are not made available for the

offenders under the Act. Therefore, the Parliament has enacted the provision as contained in S. 18 of the Act, to exclude the applicability of S. 438

of the Code of Criminal Procedure, in relation to any case involving arrest of any person on an accusation of having committed an offence under

the Act.

2-2. The learned counsel for the appellants/petitioners contended that such a provision is unreasonable and arbitrary.

2-3. It may be pointed out here that the right to seek anticipatory bail when any person has reason to believe that he may be arrested on

accusation of having committed a non-bailable offence, has been created under S. 438 of the Code of Criminal Procedure in the year 1973.

Whether such a provision should be available in respect of offences under the special enactments is a matter of legislative policy. Accordingly, it

has been enacted by the Parliament that, that right should not be made available to persons accused of having committed offences under the Act,

having regard to the gravity of the offences and the repercussions such acts may have on the society, if such persons are to move in the society

freely after committing such heinous offences on obtaining anticipatory bails.

We are unable to appreciate how a provision like the one in question can be held to be arbitrary or unreasonable. It is not available only to such

persons who are accused of having committed offences under the Act and not in respect of any other offence. These persons fall in a distinct

category. If that be so, the second contention, that the classification made under the provisions as to offences punishable under the Act and

offences punishable under the other laws is unreasonable and has no nexus to the Act, also has no basis. It may be pointed out that the offenders

under the Act and the offenders under the other penal laws of the country fall under different categories. As such there is no comparison, and they

cannot be grouped in one class. That being so, there is no question of any unreasonable classification when the offenders do not fall in the same

category. The offenders under the various laws cannot be placed in one category or class. Thus the contention that there is unreasonable

classification has no basis because the Act does not discriminate the offenders coming under it. That the offenders under the other enactments can

avail S. 438 of the Code of Criminal Procedure is no ground to hold that the provision is discriminatory because the Act has been passed, as

already pointed out, after having realised that the provisions contained in the Indian Penal Code and the protection of Civil Rights Act, 1955, are

not adequate and the existence of those provisions have not in any way proved to deter the crimes. Hence, we are of the view that the offenders

under the other penal laws cannot at all be classified as falling in the category of offenders under the Act.

The question of violation of the right guaranteed under Art. 21 also has no substance. Art. 21 does not ensure or does not confer a right that a

person who commits an offence or those accused of commissioning of certain offences, would not be liable to be dealt with in accordance with the

valid provisions of the Act.

In addition to this, we are of the view that the matter is no more res integra. The validity of similar provisions contained in the Terrorist and

Disruptive Activities (Prevention) Act, 1985, came up for consideration before the Supreme Court in Kartar Singh v. State of Punjab . In the very

same case, the validity of the provisions contained in S. 9 of the Uttar Pradesh Act 16 of 1976, which deleted the operation of S. 138 of the Code

with effect from 28-11-1975, came up for consideration. On considering the validity of both provisions, the Supreme Court rejected the

contention that they are violative of Arts. 14, 19 and 21 of the Constitution and the relevant portion of the judgment is as follows :

Sub-sec. (7) reads thus :

Nothing in S. 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an

offence punishable under this Act or any rule made thereunder.

This provision, according to Mr. Jethmalani, takes away the right of an accused in availing the anticipatory bail which the arrestee would have

otherwise been entitled to. Section 438 of the Code, according to him, is a most essential safeguard for liberty of a person and that it is found

necessary to meet the obvious cases of misuse of police power.

Mr. Tarkunde raised the same contention and then drawing strength from the Judgement in Shri Gurbaksh Singh Sibbia and Others Vs. State

of Punjab, supplements the argument that abolition of the right of anticipatory bail amounts to deprivation of personal liberty as enshrined in Art. 21

of the Constitution.

The High Court of Punjab and Haryana in Bimal Kaur Khalsa Vs. Union of India and Others, has examined a similar challenge as to the vires

of S. 20(7) of Tada Act, and held thus :

In my opinion S. 20(7) is intra vires the provision of Art. 14 of the Constitution in that the persons charged with the commission of terrorist act fall

in a category which is distinct from the class of person charged with commission of offences under the Penal code and the offences created by

other statutes, the persons indulging in terrorist act form a member of well organised secret movement. The enforcing agencies find it difficult to lay

their hands on them. Unless the Police is able to secure clue as to who are the persons behind this movement, how it is organised, who are its

active members and how they operate, it cannot hope to put an end to this movement and restore public order. The police can secure this

knowledge only from the arrested terrorists after effective interrogation. If the real offenders apprehending arrest are able to secure anticipatory

bail then the police shall virtually be denied the said opportunity.

It is needless to emphasise that both the Parliament as well as the State-Legislatures have got legislative competence to enact any law relating

to the Code of Criminal Procedure. No provision relating to anticipatory bail was in the old Code and it was introduced for the first time in the

present Code of 1973 on the suggestion made of the Forty-first Report of the Law Commission and the joint Committee Report. It may be noted

that this section is completely omitted in the State of Uttar Pradesh by S. 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act,

1976 (U.P. Act 16 of 1976 w.e.f. 28-11-1975. In the State of West Bengal, proviso is inserted to S. 438(1) of the Code w.e.f. 24-12-1988 to

the effect that no final order shall be made on an application filed by the accused praying for anticipatory bail in relation to an offence punishable

with death, imprisonment for life or imprisonment for a term of not less than seven years, without giving the State less than seven day''s notice to

present its case. In the State of Orissa, by S. 2 of Orissa Act 11 of 1988 w.e.f. 28-6-1988, a proviso is added to S. 438 stating that no final order

shall be made on an application for anticipatory bail without giving the State notice to present its case for offence punishable with death,

imprisonment for life or imprisonment for a term of not less than seven years.

It is relevant to note one of the reasons given by the Law Commission for its suggestions to introduce the provision for anticipatory bail, that

reason being ""...... where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise

misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply

for bail"". To put it differently, it can be deduced from the reasoning of the Report of Law Commission that where a person accused of a non-

bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail.

Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to

abscond or misuse their liberty if released on anticipatory bail. Evidently, the Parliament has though it fit not to extend the benefit of S. 438 to such

offenders.

Further, at the risk of repetition, we may add that S. 438 is a new provision incorporated in the present Code creating a new right. If that new

right is taken away, can it be said that the removal of S. 438 is violative of Art. 21. In Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab,

there is no specific statement that the removal of S. 438 at any time will amount to violation of Art. 21 of the Constitution.

Hence for the aforementioned reasons, the attack made on the validity of sub-sec. (7) of S. 20 has to fail.

Section 9 of Code of Criminal Procedure (U.P. Amendment) Act, 1976.

As the constitutional validity of S. 9 of U.P. Act 16 of 1976 is attacked on the same ground of sub-sec. (7) of S. 20 of the Act, we would

like to dispose of a batch of writ petitions filed by several petitioners confining the question only with regard to the constitutional validity of S. 9 of

the U.P. Legislature has deleted the operation of S. 438 of the Code w.e.f. 28-11-1975. The facts of the cases are not relevant, except to the

extent that the first information reports in all those cases have been lodged for various offences mainly under S. 302, IPC. The questions which

arise for consideration are :

(a) whether the State Legislature has legislative competence to delete S. 438 of the Code; and (b) whether the U.P. Act 16 of 1976 is violative of

Arts. 14, 19 and 21 of the Constitution.

The learned counsel for the State of U.P. submitted that this Act is a valid piece of legislation as it does not suffer from legislative

incompetence and the State Legislature is empowered to pass this Act taking into consideration the crime infected situation in the State and this

amendment was necessary keeping in view the prevailing situation and the increasing rate of offences in the State. According to him, it was in order

to meet the deteriorating situation, the State Legislature besides deleting S. 438 of the Code was compelled to promulgate the U.P. Dacoit Areas

Act, 1983 and other like enactments.

The competence of the State Legislature to amend Central Act has been recognised in U.P. Electric Supply Co. Ltd. Vs. R.K. Shukla and

Another, etc., . The Legislature has passed Act No. 16 of 1976 in exercise of powers under List III (Concurrent List) of the Seventh Schedule

and deleted S. 438 of the Code. Moreover, the Amendment Act which has received the assent of the President of India on 30-4-1976 by virtue

of Art. 254(2) of the Constitution prevails in U.P. State, notwithstanding any prior law made by the Parliament. As the Act is applied throughout

the State, there is no question of discrimination in the application of this provision in the State of Uttar Pradesh.

Hence, in view of the discussion made in relation to S. 20(7) of the TADA Act and of the legislative competence of the State, the contention

that it is violative of Arts. 14, 19 and 21 of the Constitution has no merit and as such has to be rejected.

We may also point out that a Full Bench of the Rajasthan High Court in Jai Singh and Another Vs. Union of India (UOI) and Others, has held the

very provisions referred to above as valid and not violative of Arts. 14 and 21 of the Constitution.

For the reasons stated above, the writ appeal fails and the same is dismissed.

Appeal dismissed.