Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra

3. Though certain facts are stated while framing the question already noted, some more facts may be noted. The appellant 2 herein is the original accused in the case registered at City Police Station, Karad for the offences punishable under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as also Sections 182, 192, 193, 203 and 219 read with 34 of the Indian Penal Code, 1860 (IPC). He was serving as Director of Technical Education in the State of Maharashtra at the relevant time.

4. The second respondent - the complainant is an employee of the department. He was earlier employed as a Store Keeper in the Government College of Pharmacy, Karad. He was later posted at Government Distance Education Institute, Pune. Dr. Satish Bhise and Dr. Kishor Burade, who were his seniors but non- scheduled caste, made adverse entry in his annual confidential report to the effect that his integrity and character was not good. He lodged FIR with Karad Police Station against the said two officers under the Atrocities Act on 4th January, 2006 on that ground. The concerned Investigating Officer applied for sanction under Section 197 Cr.P.C. against them to the Director of Technical 3 Education on 21st December, 2010. The sanction was refused by the appellant on 20th January, 2011. Because of this, ‘C’ Summary Report was filed against Bhise and Burade which was not accepted by the court. He then lodged the present FIR against the appellant. According to the complainant, the Director of Technical Education was not competent to grant/refuse sanction as the above two persons are Class-I officers and only the State Government could grant sanction. Thus, according to him, the appellant committed the offences alleged in the FIR dated 28 th March, 2016 by illegally dealing with the matter of sanction.

5. The complaint is fully extracted below:

6. The appellant, after he was granted anticipatory bail, applied to the High Court under Section 482 Cr.P.C. for quashing the proceedings on the ground that he had merely passed a bonafide administrative order in his official capacity. His action in doing so cannot amount to an offence, even if the order was erroneous. The High Court rejected the petition.

9. We may refer to the submissions put forward before the Court:

10. Learned amicus submitted that in facts of the present case, no offence was made out under Sections 3(1)(ix), 3(2)(vi) and 3(2)

Provisions of IPC alleged Applicability of the provisions in the facts of instant case

11. It was submitted by learned amicus that FIR was lodged after five years of the order passed by the appellant. The order was passed on 20th January, 2011 while the FIR was lodged on 28 th March, 2016 which further strengthened the case for quashing in addition to the facts and legal contentions noted in the previous para. Moreover, in absence of any allegation of malafides, even if order passed by the appellant was erroneous proceedings against him are not called for.

17. Ms. Manisha T. Karia, counsel appearing for intervenor on behalf of Sapna Korde @ Ketaki Ghodinde, who also claims to be victim of a false complaint, submitted that respondent No. 2 lodged a false FIR No. 3210 of 2017 dated 2 nd November, 2017 against her at Khadki police station alleging that she, in collusion with the appellant herein, pressurized respondent no. 2 to withdraw the FIR No.164 of 2016 registered with Karad Police Station and she falsely implicated respondent no. 2 in a sexual harassment case. She is working as an Assistant Professor in the Department of Instrumentation and Control in College of Engineering, Pune since last eight years where respondent No. 2 was working as a storekeeper. She had made a complaint against him for her sexual harassment and as a reaction, the FIR was lodged by respondent No. 2 by way of the Atrocities Act. Her anticipatory bail application was rejected by the session court but the High Court, vide order dated 23rd November, 2017, granted interim protection against arrest. Thereafter, respondent No. 2 initiated proceedings under Section 107 Cr.P.C. and the intervenor received notice dated 2nd December, 2017 from the Magistrate. It was submitted that there was no safeguard against false 17 implication, undue harassment and uncalled for arrest and thus, this Court must incorporate safeguards against unreasonable and arbitrary power of arrest in such cases without following just fair and reasonable procedure which may be laid down by this Court. Such requirement, it was submitted, was implicit requirement of law but was not being followed.

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while 41 forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of the entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available.

Irrational and indiscriminate arrests are gross violation of human rights

118. In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer.

119. Exercise of jurisdiction under Section 438 CrPC is an extremely important judicial function of a Judge and must be entrusted to judicial officers with some experience and good track record. Both the individual and society have vital interest in orders passed by the courts in anticipatory bail applications.

6. In view of the aforesaid discussion, though in a way the learned A.P.P. is absolutely right when he submitted that no anticipatory bail can be granted to the petitioner-accused because of Section 18 of the Atrocities Act, in the opinion of this Court, his submission fails because at this stage it is too difficult to rule out the probability of the accusations levelled by the complainant against the petitioner-accused having committed an offence under the Atrocities Act being false, vexatious and by way of counterblast as stemming from the ulterior motive to humiliate, disgrace and demoralise the petitioner-accused who is a public servant. When that is the result and position, there is no question of bypassing of Section 18 of the Atrocities Act arises as apprehended by the learned A.P.P. Taking into consideration the facts and circumstances of this particular case, and in view of the aforesaid discussion, this Misc. Criminal Application for anticipatory bail deserves to be allowed and is allowed accordingly”

For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.” xxx xxxx xxxx

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.”

81. Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, 86 without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated.

Consideration of present case

82. As far as the present case is concerned, we find merit in the submissions of learned amicus that the proceedings against the appellant are liable to be quashed.

Conclusions

83. Our conclusions are as follows:

The above directions are prospective.

The appeal is accordingly allowed in the above terms.

MARCH 20, 2018 Note: Highlighting in quotations is by us 89