VINOD DUA versus UNION OF INDIA & ORS.
[2021] 12 S.C.R. 1071, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Facts
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on the ground that at the time the first information is received,
the same does not disclose a cognizable offence.
119. Therefore, in view of various counterclaims regarding
registration or non-registration, what is necessary is only that
the information given to the police must disclose the commission
of a cognizable offence. In such a situation, registration of an
FIR is mandatory. However, if no cognizable offence is made
out in the information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence has been
committed. But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option
but to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether
the information is falsely given, whether the information is
genuine, whether the information is credible, etc. These are
the issues that have to be verified during the investigation of
the FIR. At the stage of registration of FIR, what is to be seen
is merely whether the information given ex facie discloses the
commission of a cognizable offence. If, after investigation, the
information given is found to be false, there is always an option
to prosecute the complainant for filing a false FIR.”
Thereafter,
directions were issued in paragraph 120 of the decision
and direction 120.6 was as under:
“Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
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120.6. As to what type and in which cases preliminary inquiry is
to be conducted will depend on the facts and circumstances of
each case. The category of cases in which preliminary inquiry
may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
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(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months’ delay in
reporting the matter without satisfactorily explaining the reasons
for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.”
59. We may now notice the relevant observations in P. Sirajuddin,
Etc. vs. State of Madras, Etc.71, which were:-
“17. In our view the procedure adopted against the appellant
before the laying of the first information report though not in terms
forbidden by law, was so unprecedented and outrageous as to
shock one’s sense of justice and fairplay. No doubt when
allegations about dishonesty of a person of the appellant’s rank
were brought to the notice of the Chief Minister it was his duty to
direct as enquiry into the matter. The Chief Minister in our view
pursued the right course. The High Court was not impressed by
the allegation of the appellant that the Chief Minister was moved
to take an initiative at the instance of person who was going to
benefit by the retirement of the appellant and who was said to be
a relation of the Chief Minister. The High Court rightly held that
the relationship between the said person and the Chief Minister, if
any, was so distant that it could not possibly have influenced him
and we are of the same view. Before a public servant, whatever
be his status, is publicly charged with acts of dishonesty
which
amount to serious misdemeanour or misconduct of the type alleged
in this case and a first information is lodged against him, there
must be some suitable preliminary enquiry into the allegations by
a responsible officer. The lodging of such a report against a person,
specially one who like the appellant occupied the top position in a
department, even if baseless, would do incalculable harm not only
to the officer in particular but to the department he belonged to, in
general. If the Government had set up a Vigilance and Anti-
Corruption Department as was done in the State of Madras and
the said department was entrusted with enquiries of this kind, no
exception can of taken to an enquiry by officers of this department
71 (1970) 1 SCC 595
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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but any such enquiry must proceed in a fair and reasonable manner.
The enquiring officer must not act under any preconceived idea
of guilt of the person whose conduct was being enquired into or
pursue the enquiry in such a manner as to lead to an inference
that he was bent upon securing the conviction of the said person
by adopting measures which are of doubtful validity or sanction.
The means adopted no less than the end to be achieved must be
impeccable. In ordinary departmental proceedings against a
Government servant charged with delinquency, the normal practice
before the issue of a charge-sheet is for some one in authority to
take down statements of persons involved in the matter and to
examine documents which have a bearing on the issue involved.
It is only thereafter that a charge-sheet is submitted and a full-
scale enquiry is launched. When the enquiry is to be held for the
purpose of finding out whether criminal proceedings are to be
restored to the scope thereof must be limited to the examination
of persons who have knowledge of the affairs of the delinquent
officer and documents bearing on the same to find out whether
there is prima facie evidence of guilt of the officer. Thereafter
the ordinary law of the land must take its course and further inquiry
be proceeded with in terms of the Code of Criminal Procedure by
lodging a first information report.
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21. In our view the enquiring officer
pursued the investigation
with such zeal and vigour that he even enquired into and took
down statements as persons who were supposed to have provided
the appellant with articles of food worth trifling sums of money
long before the launching of the enquiry. The whole course of
investigation as disclosed in the affidavits is suggestive of some
pre-determination of the guilt of the appellant. The enquiring officer
was a high-ranking police officer and it is surprising that simply
because he was technically not exercising power under Chapter
14 of the Criminal Procedure Code in that a formal first information
report had not been lodged he overlooked or deliberately
overstepped the limits of investigation contained in the said chapter.
He recorded self-incriminating statements of a number of persons
and not only secured their signatures thereto obviously with the
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idea of pinning them down to those but went to the length of
providing certificates of immunity to at least two of them from the
evil effects of their own misdeeds as recorded. It was said that
the certificates were given after the statements had been signed.
It is difficult to believe that the statements could have been made
before the grant of oral assurances regarding the issue of written
certificates. There can be very little doubt that the persons who
were given such immunity had made the statements incriminating
themselves and the appellant under inducement, threat or promise
as mentioned in Section 24 of the Indian Evidence Act.”
The statement in paragraph 17 certainly spoke of requirement of
a preliminary inquiry before a first information report is lodged against a
public servant.
60. Mr.  Vikas Singh, learned Senior Advocate for the petitioner
strongly relied upon paragraph 120.6 of Lalita Kumari5 to submit that
the category of cases in which preliminary inquiry could possibly be
insisted upon were detailed by this Court but it was clearly stated that
such categorisation was only illustrative and not exhaustive of all conditions
which may warrant preliminary enquiry. It was submitted that there was
strong similarity between the medical professionals and journalists and
the latter were also entitled to certain safeguards and protection; that
journalists would also discharge function of educating and altering the
public in general and as such
they, as a class would also require similar
protection.
On the other hand, Mr. S.V. Raju, learned Additional Solicitor
General relied upon two recent decisions in Union of India v. State of
Maharashtra and others72 and in Social Action Forum For Manav
Adhikar and another v. Union of India, Ministry of Law and Justice
and others73 of this Court rendered by Benches of three Judges where
directions similar to those issued in the case of Jacob Mathew4 were
not accepted.
61. In Rajesh Sharma and others v. State of Uttar Pradesh
and another74 a Bench of two Judges of this Court (to which one of us,
Lalit, J. was a party) issued following directions in cases where the
offence alleged was one punishable under Section 498-A of the IPC3:-
72 (2020) 4 SCC 761
73 (2018) 10 SCC 443
74 (2018) 10 SCC 472
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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“19. Thus, after careful consideration of the whole issue, we
consider it fit to give the following directions:
 19.1 In every district one or more Family Welfare Committees
be constituted by the District Legal Services Authorities preferably
comprising of three members. The constitution and working of
such committees may be reviewed from time to time and at least
once in a year by the District and Sessions Judge of the district
who is also the Chairman of the District Legal Services Authority.
 19.2. The Committees may be constituted out of paralegal
volunteers/social workers/retired persons/wives of working
officers/other citizens who may be found suitable and willing.
 19.3. The Committee members will not be called as witnesses.
 19.4. Every complaint under Section 498-A received by the police
or the Magistrate be referred to and looked into by such
Committee. Such Committee may have interaction with the parties
personally or by means of telephone or any other mode of
communication including electronic communication.
 19.5. Report of such Committee be given to the authority by
whom the complaint is referred to it latest within one month from
the date of receipt of complaint.
 19.6. The Committee may give its brief report about the factual
aspects and its opinion in the matter.
19.7. Till report of the Committee is received, no arrest should
normally be effected.
19.8. The report may be then considered by the
investigating
officer or the Magistrate on its own merit.
19.9. Members of the Committee may be given such basic
minimum training as may be considered necessary by the Legal
Services Authority from time to time.
19.10. The members of the Committee may be given such
honorarium as may be considered viable.
19.11. It will be open to the District and Sessions Judge to utilise
the cost fund wherever considered necessary and proper.
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19.12. Complaints under Section 498-A and other connected
offences may be investigated only by a designated investigating
officer of the area. Such designations may be made within one
month from today. Such designated officer may be required to
undergo training for such duration (not less than one week) as
may be considered appropriate. The training may be completed
within four months from today.
19.13 In cases where a settlement is reached, it will be open to
the District and Sessions Judge or any other senior judicial officer
nominated by him in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to
matrimonial discord.
19.14  If a bail application is filed with at least one clear day’s
notice to the Public Prosecutor/complainant, the same may be
decided as far as possible on the same day. Recovery of disputed
dowry items may not by itself be a ground for denial of bail if
maintenance or other rights of wife/minor children can otherwise
be protected. Needless to say that in dealing with bail matters,
individual roles, prima facie truth of the allegations, requirement
of further arrest/custody and interest of justice must be carefully
weighed.
19.15. In respect of persons ordinarily residing out of India
impounding of passports or issuance of red corner notice should
not be a routine.
19.16. It will be open to the District Judge or a designated senior
judicial officer nominated by the District
Judge to club all connected
cases between the parties arising out of matrimonial disputes so
that a holistic view is taken by the court to whom all such cases
are entrusted.
19.17. Personal appearance of all family members and particularly
outstation members may not be required and the trial court ought
to grant exemption from personal appearance or permit appearance
by videoconferencing without adversely affecting progress of the
trial.
19.18. These directions will not apply to the offences involving
tangible physical injuries or death.”
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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Direction No.19.4 had thus contemplated referral of every
complaint under Section 498A IPC3 to a Committee and it was only
after the report of the Committee, arrest if at all, could be effected.  In
terms of direction 19.12 it was directed that all complaints under Section
499A IPC3 be investigated only by a Designated Investigating Officer
of the area.  While issuing these directions, this Court had inter alia
relied upon the decision in Arnesh Kumar v. State of Bihar75 as well as
the decision in Lalita Kumari7.
62. The correctness of the decision in Rajesh Sharma and
others72 was questioned before a Bench of three Judges in Social Action
Forum For Manav Adhikar and another v. Union of India, Ministry
of Law and Justice and others76.  This Court in paragraph 33 of its
Judgment referred to paragraph 120.6 of the decision in Lalita Kumari5
and thereafter made following observations:-
“37. On a perusal of the aforesaid paragraphs, we find that the
Court has taken recourse to fair procedure and workability of a
provision so that there will be no unfairness and unreasonableness
in implementation and for the said purpose, it has taken recourse
to the path of interpretation. The core issue is whether the Court
in Rajesh Sharma72 could, by the method of interpretation, have
issued such directions. On a perusal of the directions, we find that
the Court has directed constitution of the Family Welfare
Committees by the
District Legal Services Authorities and
prescribed the duties of the Committees. The prescription of duties
of the Committees and further action therefor, as we find, are
beyond the Code and the same does not really flow from any
provision of the Code. There can be no denial that there has to be
just, fair and reasonable working of a provision. The legislature in
its wisdom has made the offence under Section 498-A IPC
cognizable and non-bailable. The fault lies with the investigating
agency which sometimes jumps into action without application of
mind. The directions issued in Arnesh Kumar73 are in consonance
with the provisions contained in Section 41 CrPC and Section 41-
A CrPC. Similarly, the guidelines stated in Joginder
Kumar v. State of U.P.77, and D.K. Basu v. State of W.B.78, are
within the framework of the Code and the power of
75 (2014) 8 SCC 273
76 (2018) 10 SCC 443
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superintendence of the authorities in the hierarchical system of
the investigating agency. The purpose has been to see that the
investigating agency does not abuse the power and arrest people
at its whim and fancy.
 38. In Rajesh Sharma72, there is introduction of a third agency
which has nothing to do with the Code and that apart, the
Committees have been empowered to suggest a report failing
which no arrest can be made. The directions to settle a case after
it is registered is not a correct expression of law. A criminal
proceeding which is not compoundable can be quashed by the
High Court under Section 482 CrPC. When settlement takes place,
then both the parties can file a petition under Section 482 CrPC
and the High Court, considering the bona fide of the petition, may
quash the same. The power rests with the High Court. In this
regard, we may reproduce a passage from a three-Judge Bench
in Gian Singh v. State of Punjab79, In the said case, it has been
held that:
“61. … Inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline
engrafted in such power viz.: (i) to secure the ends of justice,
or (ii) to prevent abuse of the process of any court. In what
cases power to quash the criminal proceeding or complaint or
FIR may be exercised where the offender and the victim have
settled their dispute would depend on the facts and
circumstances of each case and no category can be prescribed.
However, before exercise of such power, the High Court must
have due regard to the nature and gravity of the crime. Heinous
and serious offences of mental depravity or offences like
murder, rape, dacoity, etc. cannot be fittingly quashed even
though the victim or victim’s family and the offender have settled
the dispute. Such offences are not private in nature and have a
serious impact on society. Similarly, any compromise between
the victim and the offender in relation to the offences under
special statutes like the Prevention of Corruption Act or the
offences committed by public servants while working in that
77 (1994) 4 SCC 260
78 (1997) 1 SCC 416
79 (2012) 10 SCC 303
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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capacity, etc.; cannot provide for any basis for quashing criminal
proceedings involving such offences. But the criminal cases
having overwhelmingly and predominatingly civil flavour stand
on a different footing for the purposes of quashing, particularly
the offences arising from commercial, financial, mercantile,
civil, partnership or such like transactions or the offences arising
out of matrimony relating to dowry, etc. or the family disputes
where the wrong is basically private or personal in nature and
the parties have resolved their entire dispute. In this category
of cases, the High Court may quash the criminal proceedings
if in its view, because of the compromise between the offender
and the victim, the possibility of conviction is remote and bleak
and continuation of the criminal case would put the accused to
great oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal case despite full
and complete settlement and compromise with the victim.”
39. Though Rajesh Sharma72 takes note of Gian Singh78, yet it
seems to have applied it in a different manner. The seminal issue
is whether these directions could have been issued by the process
of interpretation. This Court, in furtherance of a fundamental right,
has issued directions in the absence of law in certain cases,
namely, Lakshmi Kant Pandey v. Union of India80,
Vishaka v. State of Rajasthan81 and Common Cause v.
Union
of India82, and some others. In the obtaining factual matrix, there
are statutory provisions and judgments in the field and, therefore,
the directions pertaining to constitution of a committee and
conferment of power on the said committee are erroneous.
However, the directions pertaining to Red Corner Notice, clubbing
of cases and postulating that recovery of disputed dowry items
may not by itself be a ground for denial of bail, would stand on a
different footing. They are protective in nature and do not sound
a discordant note with the Code. When an application for bail is
entertained, proper conditions have to be imposed but recovery of
disputed dowry items may not by itself be a ground while rejecting
an application for grant of bail under Section 498-A IPC. That
80 (1984) 2 SCC 244
81 (1997) 6 SCC 241
82 (2018) 5 SCC 1
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cannot be considered at that stage. Therefore, we do not find
anything erroneous in Directions 19.14 and 19.15. So far as
Directions 19.16 and 19.17 are concerned, an application has to
be filed either under Section 205 CrPC or Section 317 CrPC
depending upon the stage at which the exemption is sought.
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42. In the aforesaid analysis, while declaring the directions
pertaining to Family Welfare Committee and its constitution by
the District Legal Services Authority and the power conferred on
the Committee is impermissible. Therefore, we think it appropriate
to direct that the investigating officers be careful and be guided
by the principles stated in Joginder Kumar76, D.K. Basu77, Lalita
Kumari5 and Arnesh Kumar73. It will also be appropriate to direct
the Director General of Police of each State to ensure that the
investigating officers who are in charge of investigation of cases
of offences under Section 498-A IPC should be imparted rigorous
training with regard to the principles stated by this Court relating
to arrest.
43. In view of the aforesaid premises, the directions contained in
paras 19.1 to 19.11 as a whole are not in accord with the statutory
framework and the direction issued in para 19.12 shall be read in
conjunction with the direction given hereinabove.
44. Direction 19.13 is modified to the extent that if a settlement is
arrived at, the parties can approach the High Court under Section
482 of the Code of Criminal Procedure and
the High Court, keeping
in view the law laid down in Gian Singh78, shall dispose of the
same.
45. As far as Directions 19.14, 19.15, 19.16 and 19.17 are
concerned, they shall be governed by what we have stated in
para 39.
46. With the aforesaid modifications in the directions issued
in Rajesh Sharma73, the writ petitions and criminal appeal stand
disposed of. There shall be no order as to costs.”
It was thus held that directions 19.1 to 19.11 were not in conformity
with the statutory framework, while directions 19.12 to 19.17 were suitably
modified.
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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63. A Bench of two Judges of this Court (to which one of us i.e.
Lalit, J. was a party) in its decision in Dr. Subhash Kashinath Mahajan
v. State of Maharashtra and another83 issued following directions in
connection with prosecutions instituted in relation to the offences
punishable under the provisions of the Scheduled Cases and Scheduled
Tribes (Prevention of Atrocities) Act, 1989; (the “Atrocities Act”, or
“the 1989 Act”, for short):
“79. Our conclusions are as follows:
 79.1. Proceedings in the present case are clear abuse of process
of court and are quashed.
79.2. There is no absolute bar against grant of anticipatory bail in
cases under the Atrocities Act if no prima facie case is made out
or where on judicial scrutiny the complaint is found to be prima
facie mala fide. We approve the view taken and approach of the
Gujarat High Court in Pankaj D. Suthar v. State of Gujarat84,
and N.T. Desai v. State of Gujarat85, and clarify the judgments
of this Court in State of M.P. v. Ram Kishna Balothia86,
and Manju Devi v. Onkarjit Singh Ahluwalia87;
79.3. In view of acknowledged abuse of law of arrest in cases
under the Atrocities Act, arrest of a public servant can only be
after approval of the appointing authority and of a non-public
servant after approval by the SSP which may be granted in
appropriate cases if considered necessary for reasons recorded.
Such reasons must be scrutinised by the Magistrate for
permitting
further detention.
79.4. To avoid false implication of an innocent, a preliminary
enquiry may be conducted by the DSP concerned to find out
whether the allegations make out a case under the Atrocities Act
and that the allegations are not frivolous or motivated.
79.5. Any violation of Directions 79.3 and 79.4 will be actionable
by way of disciplinary action as well as contempt.
79.6. The above directions are prospective.”
83 (2018) 6 SCC 454
84 (1992) 1 Guj LR 405
85 (1997) 2 Guj LR 942
86 (1995) 3 SCC 221 : 1995 SCC (Cri) 439
87 (2017) 13 SCC 439 : (2017) 4 SCC (Cri) 662
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During the course of its decision, the Bench had noticed paragraph
120.6 of the decision in Lalita Kumari5 as well as the decision in P.
Sirajuddin69.  In terms of directions in paragraph 79.3 and 79.4, it was
directed that an arrest of a public servant could be effected only after
approval of the appointing authority and that of a non-public servant
could be effected only after approval by the Special Superintendent of
Police; that the reasons for arrest could be scrutinised by the Magistrate
for permitting further detention; and that a preliminary enquiry be
conducted by the DSP concerned to find out whether the allegations
making out a case under the provisions of Atrocities Act were frivolous
or motivated.
64. Union of India being aggrieved, filed Review Petition
questioning  the correctness of the directions issued in Dr. Subhash
Kashinath Mahajan82.  A Bench of three Judges of this Court considered
the matter in Union of India v. State of Maharashtra and others70.
Various decisions were noticed by this Court and it was concluded:
“In re : Sanction of the appointing authority
59. Concerning public servants, the provisions contained in Section
197 CrPC provide protection by prohibiting cognizance of the
offence without the sanction of the appointing authority and the
provision cannot be applied at the stage of the arrest. That would
run against the spirit of Section 197 CrPC. Section 41 CrPC
authorises every police officer to carry out an arrest in
case of a
cognizable offence and the very definition of a cognizable offence
in terms of Section 2(c) CrPC is one for which police officer may
arrest without warrant.
60. In case any person apprehends that he may be arrested,
harassed and implicated falsely, he can approach the High Court
for quashing the FIR under Section 482 as observed in State of
Orissa v. Debendra Nath Padhi88.
61. While issuing guidelines mentioned above approval of
appointing authority has been made imperative for the arrest of a
public servant under the provisions of the Act in case, he is an
accused of having committed an offence under the 1989 Act.
Permission of the appointing authority to arrest a public servant is
not at all statutorily envisaged; it is encroaching on a field which is
88 (2005) 1 SCC 568 : 2005 SCC (Cri) 415
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reserved for the legislature. The direction amounts to a mandate
having legislative colour which is a field not earmarked for the
courts.
62. The direction is discriminatory and would cause several legal
complications. On what basis the appointing authority would grant
permission to arrest a public servant? When the investigation is
not complete, how can it determine whether public servant is to
be arrested or not? Whether it would be appropriate for appointing
authority to look into case diary in a case where its sanction for
prosecution may not be required in an offence which has not
happened in the discharge of official duty. Approaching appointing
authority for approval of arrest of a public servant in every case
under the 1989 Act is likely to consume sufficient time. The
appointing authority is not supposed to know the ground realities
of the offence that has been committed, and arrest sometimes
becomes necessary forthwith to ensure further progress of the
investigation itself. Often the investigation cannot be completed
without the arrest. There may not be any material before the
appointing authority for deciding the question of approval. To decide
whether a public servant should be arrested or not is not a function
of the appointing authority, it is wholly extra-statutory. In case the
appointing authority holds that a public servant is not to be arrested
and declines approval, what would happen, as there is
no provision
for grant of anticipatory bail. It would tantamount to taking away
functions of court. To decide whether an accused is entitled to
bail under Section 438 in case no prima facie case is made out or
under Section 439 is the function of the Court. The direction of
the appointing authority not to arrest may create conflict with the
provisions of the 1989 Act and is without statutory basis.
63. By the guidelines issued, the anomalous situation may crop
up in several cases. In case the appointing authority forms a view
that as there is no prima facie case the incumbent is not to be
arrested, several complications may arise. For the arrest of an
offender, may be a public servant, it is not the provision of the
general law of CrPC that permission of the appointing authority is
necessary. No such statutory protection is provided to a public
servant in the matter of arrest under IPC and CrPC as such it
would be discriminatory to impose such rider in the cases under
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the 1989 Act. Only in the case of discharge of official duties,
some offence appears to have been committed, in that case,
sanction to prosecute may be required and not otherwise. In case
the act is outside the purview of the official discharge of duty, no
such sanction is required.
64. The appointing authority cannot sit over an FIR in case of
cognizable, non-bailable offence and investigation made by the
police officer; this function cannot be conferred upon the appointing
authority as it is not envisaged either in CrPC or the 1989 Act.
Thus, this rider cannot be imposed in respect of the cases under
the 1989 Act, may be that provisions of the Act are sometimes
misused, exercise of power of approval of arrest by the appointing
authority is wholly impermissible, impractical besides it encroaches
upon the field reserved for the legislature and is repugnant to the
provisions of general law as no such rider is envisaged under the
general law.
65. Assuming it is permissible to obtain the permission of the
appointing authority to arrest the accused, would be further
worsening the position of the members of the Scheduled Castes
and Scheduled Tribes. If they are not to be given special protection,
they are not to be further put in a disadvantageous position. The
implementation of the condition may discourage and desist them
even to approach the police and would cast a shadow of doubt on
all members of the Scheduled Castes and Scheduled Tribes which
cannot be
said to be constitutionally envisaged. Other castes can
misuse the provisions of law; also, it cannot be said that misuse of
law takes place by the provisions of the 1989 Act. In case the
direction is permitted to prevail, days are not far away when writ
petition may have to be filed to direct the appointing authority to
consider whether the accused can be arrested or not and as to
the reasons recorded by the appointing authority to permit or deny
the arrest. It is not the function of the appointing authority to
intermeddle with a criminal investigation. If at the threshold,
approval of the appointing authority is made necessary for arrest,
the very purpose of the Act is likely to be frustrated. Various
complications may arise. Investigation cannot be completed within
the specified time, nor trial can be completed as envisaged. The
1989 Act delay would be adding to the further plight of the
downtrodden class.
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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In re : Approval of arrest by the SSP in the case of a non-
public servant
66. Inter alia for the reasons as mentioned earlier, we are of the
considered opinion that requiring the approval of SSP before an
arrest is not warranted in such a case as that would be
discriminatory and against the protective discrimination envisaged
under the Act. Apart from that, no such guidelines can prevail,
which are legislative. When there is no provision for anticipatory
bail, obviously arrest has to be made. Without doubting bona fides
of any officer, it cannot be left at the sweet discretion of the
incumbent howsoever high. The approval would mean that it can
also be ordered that the person is not to be arrested then how the
investigation can be completed when the arrest of an incumbent,
is necessary, is not understandable. For an arrest of the accused
such a condition of approval of SSP could not have been made a
sine qua non, it may delay the matter in the cases under the 1989
Act.
In re : Requiring the Magistrate to scrutinise the reasons for
permitting further detention
67. As per the guidelines issued by this Court, the public servant
can be arrested after approval by the appointing authority and
that of a non-public servant after the approval of SSP. The reasons
so recorded have to be considered by the Magistrate for permitting
further detention. In case of approval has not been granted, this
exercise has not been
undertaken. When the offence is registered
under the 1989 Act, the law should take its course no additional
fetters are called for on arrest whether in case of a public servant
or non-public servant. Even otherwise, as we have not approved
the approval of arrest by appointing authority/SSP, the direction to
record reasons and scrutiny by the Magistrate consequently stands
nullified.
68. The direction has also been issued that the DSP should conduct
a preliminary inquiry to find out whether the allegations make out
a case under the Atrocities Act, and that the allegations are not
frivolous or motivated. In case a cognizable offence is made out,
the FIR has to be outrightly registered, and no preliminary inquiry
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has to be made as held in Lalita Kumari5 by a Constitution Bench.
There is no such provision in the Code of Criminal Procedure for
preliminary inquiry or under the SC/ST Act, as such direction is
impermissible. Moreover, it is ordered to be conducted by the
person of the rank of DSP. The number of DSP as per stand of
the Union of India required for such an exercise of preliminary
inquiry is not available. The direction would mean that even if a
complaint made out a cognizable offence, an FIR would not be
registered until the preliminary inquiry is held. In case a preliminary
inquiry concludes that allegations are false or motivated, FIR is
not to be registered, in such a case how a final report has to be
filed in the Court. Direction 79.4 cannot survive for the other
reasons as it puts the members of the Scheduled Castes and
Scheduled Tribes in a disadvantageous position in the matter of
procedure vis-à-vis to the complaints lodged by members of upper
caste, for later no such preliminary investigation is necessary, in
that view of the matter it should not be necessary to hold preliminary
inquiry for registering an offence under the Atrocities Act, 1989.
70. We do not doubt that directions encroach upon the field
reserved for the legislature and against the concept of protective
discrimination in favour of downtrodden classes under Article 15(4)
of the Constitution and also impermissible within the parameters
laid down by this Court for exercise of powers
under Article 142
of the Constitution of India. Resultantly, we are of the considered
opinion that Directions 79.3 and 79.4 issued by this Court deserve
to be and are hereby recalled and consequently we hold that
Direction 79.5, also vanishes. The review petitions are allowed to
the extent mentioned above.”
Paragraph 68 of this decision clearly held that the direction to
hold a preliminary inquiry issued in Dr. Subhash Kashinath Mahajan82
was not consistent with the statutory framework while it was held in
paragraph 70 that the directions issued by the two Judge Bench amounted
to encroachment upon the field reserved for the legislature.
65. The submissions regarding the second prayer in the Writ Petition
are required to be considered in the backdrop of these decisions.
66. In Jacob Mathew4, the guidelines were issued after noticing
Section 88 of the IPC3 falling in Chapter titled “General Exceptions” as
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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well as illustrations below Sections 88, 92, and 93 of the IPC3. The
direction, “a private complaint may not be entertained unless the
complainant has produced prima facie evidence before the Court in the
form of a credible opinion given by another competent doctor to support
the charge of rashness and negligence on the part of the accused doctor”
was founded on reasons including the status of a medical professional
acknowledged by Section 88 and illustrations as stated above as well as
the fact that the investigating officers and the private complainant would
not be supposed to be having knowledge about medical science so as to
determine whether the act of the accused professional amounted to a
rash and negligent act within the domain of criminal law. It is true that
the decision in P. Sirajuddin69 did observe that there ought to be a
preliminary inquiry before a first information report is registered against
a public servant of any status. But today, with the establishment of
Vigilance Cells in every Governmental Department or organisation, the
preliminary inquiries are not strictly traceable to the direction issued by
this Court. As a matter of fact, the accepted norm – be it in the form of
CBI Manual or like instruments is to insist on a preliminary inquiry. One
can also say that the protection to a public servant is the underlying
principle under certain provisions like Section 197 of the Code and as
such there
is some foundation in statutory provisions.
On the other hand, directions (19.1 to 19.11) issued in Rajesh
Sharma73, were not found to be in accord with the statutory framework
and as such did not meet with the approval of the decision of the larger
bench of this Court. Similarly, the directions issued in Dr. Subhash
Kashinath Mahajan82 regarding holding of a preliminary inquiry were
not found consistent with the statutory framework.  The second prayer
made in the Writ Petition is asking for the constitution of the Committee
completely outside the scope of the statutory framework. Similar such
exercise of directing constitution of a Committee was found inconsistent
with the statutory framework in the decisions discussed above. We are
conscious that the directions issued in Jacob Mathew4 had received
approval by a Constitution Bench in Lalita Kumari5, but those guidelines
issued in Jacob Mathew4 stand on parameter which are completely
distinguishable from the subsequent decisions of three Judge Bench of
this Court in Union of India vs. State of Maharashtra and Others70
and in Social Action Forum for manav Adhikar and Another vs. Union
of India, Ministry of Law and Justice and Others71.  Any relief granted
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in terms of second prayer would certainly, in our view, amount to
encroachment upon the field reserved for the legislature. We have,
therefore, no hesitation in rejecting the prayer and dismissing the Writ
Petition to that extent.
67. It must however be clarified that every Journalist will be entitled
to protection in terms of Kedar Nath Singh2, as every prosecution under
Sections 124A and 505 of the IPC3 must be in strict conformity with the
scope and ambit of said Sections as explained in, and completely in tune
with the law laid down in Kedar Nath Singh2.
68. In conclusion:
i.
We quash FIR No.0053 dated 6.5.2020, registered at
Police Station Kumarsain, Distt. Shimla, Himachal
Pradesh, against the petitioner;
ii.
but reject the prayer that no FIR be registered against a
person belonging to media with at least 10 years of
standing unless cleared by the Committee as suggested.
69. Writ Petition is allowed to the aforesaid extent.
Nidhi Jain
Writ petition partly allowed.
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]