March 20 Judgment Is A Judicial Amendment To SC/ST Act, It Affected The Morale And Confidence Of SC/ST Community : AG KK Venugopal

“These people (the Scheduled Castes and Scheduled Tribes) have been suppressed for years...this judgment has affected their morale and confidence...this matter needs to settled finally by a larger bench...”, Submitted AG

The Supreme Court Bench of Justices AK Goel and UU Lalit on Thursday rejected Centre's plea to stay the March 20 Judgment by which the bench issued many directions to prevent the misuse of provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (SC/ST Act).

Today, Attorney General K. K. Venugopal submitted that the Judgment in Dr Subhash Kashinath Mahajan v State of Maharashtra is a clear case of judicial amendment to Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (SC/ST Act) and the judgment needs to be referred to larger bench.

“In so far as the  judgement makes any violation of the directions issued therein punishable by disciplinary action as well as contempt, the DSP has no option but to conduct the preliminary inquiry...substituting preliminary enquiry for FIRs amounts to legislation, and consequently, the 1989 Act stands amended...it clashes with section 4 of the Act which directs a public servant to register a complaint or a First Information Report under the Act as well as other relevant provisions and imposes punishment for any neglect of duties...in as much as the judgment mandates the sanction of the Appointing Authority prior to the arrest of a public servant under the 1989 Act, it may be noted that these Authorities generally have no knowledge of the criminal law...further, the need for sanction is for the legislature to determine and in this behalf, section 197, Cr. P. C. exists...there is a concept of separation of powers ...in so far as the judgment does away with the bar on the grant of anticipatory bail in an offence under the 1989 Act, it may be seen that section 18 of the Act has been held as constitutionally valid by this court...”

“It is not a direction that the DSP must carry out the preliminary enquiry...under the 1989 Act, the DSP is the Investigating Officer...he could state that he is satisfied there is no false implication and proceed to register the FIR...”, remarked the bench.

“All that the judgment says is that arrest may not be readily resorted to...in such legislations as TADA and POTA where the crime in question is of a graver magnitude, the Legislature has put embargo on regular as well as anticipatory bail...the idea is that the perpetrator may not be released easily...but the Act of 1989 places no restraint on regular bail...under its section 3, the punishment may even be imprisonment for 6 months... the accused may be released even on the first day...what objective is the Legislature trying to achieve? the fear of arrest?”, the bench observed.

Referring to the data compiled by the National Crime Records Bureau on the number of cases decided under the 1989 Act resulting in acquittal or discharge, which were relied upon in the March 20 judgment, the AG advanced, “how can the court proceed on the assumption that these cases were false?”

In response to a submission by the AG in the same behalf, the bench observed, “it is not that 85% of the cases filed are correct and only 15% are false...please verify the statistics”

“The allegations in the cases are such which make us shudder”, continued the AG, citing unfortunate instances of the rape of a physically challenged Dalit woman and a Dalit couple being beaten to death in Bihar. “We have clarified the last time that in cases of offences under the IPC or other substantive criminal laws, the FIR may be registered right away...we have not said that the directions have to be followed no matter how serious the crime...”, stated the bench.

Advancing that courts may only stipulate guidelines in the context of a particular case and not general guidelines as a matter of law for the whole country, the AG relied on the seven judge. Bench decision of the Supreme Court in P. Ramachandra Rao v. State of Karnataka, wherein it was observed, “...Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, insofar as they create law, can do so only in application to the cases before them and only insofar as is necessary for their solution...Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature...”

“In that case, it was held that courts may not substitute the law in the light of periods of limitation beyond which a trial or criminal proceeding shall not proceed having been stipulated...that would have amounted to acquittal in all cases...”, countered the bench.

“These people (the Scheduled Castes and Scheduled Tribes) have been suppressed for years...this judgment has affected their morale and confidence...considering the the judgment of the 7 judge bench, this matter needs to settled finally by a larger bench...”, advanced the AG finally.

At the beginning of the hearing Senior Counsel Indira Jaising, appearing for Respondent no. 2 in the original SLP, submitted that the original petitioner had suppressed the facts.

“I represent Bhaskar Kharbhari Gaidwad, who had filed the FIR from which arose the original proceedings...I have filed an Interlocutory Application under section 340, Cr. P. C. for action under section 191, IPC, and an application for the recall of the judgment having been procured by fraud”

“A false declaration on affidavit was made by the original petitioner Dr. Subhash Mahajan that the copy of FIR annexed to the SLP is the true and correct copy of the original...a truncated version of the FIR was filed, excluding the portions that depicted malafides on the part of the petitioner...no litigant can be allowed to pollute the stream of justice by procuring a favourable judgment by suppression of material facts...with all due respect, there was no summoning of records from the police station during the entire SLP proceedings...the complete FIR in Marathi was tendered across the bar only towards the end of the hearing...”, she continued.

Reading from Mr. Mahajan’s affidavit, Ms. Jaising objected to his claim that he was authorised to swear on behalf of other petitioners- “How could this have been done? We all swear in our own names!”

Thereupon, she quoted the portions of the original FIR indicating that the petitioner was aware that as the Director of Technical Education in the state of Maharashtra, he was not empowered to grant sanction under section 197, Cr. P. C. for the initiation of prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989.

At this point, Senior Counsel Vijay Hansaria interjected, “now that the judgment has been pronounced, these issues may not be raised in the public domain...if this is a review petition, it may be heard in chamber...there has to be judicial discipline and faith in Your Lordships...”

“There are two aspects- first, where the judgment was obtained on the basis of incorrect copies; and second, where false declarations were made on affidavit, in which case consequences shall follow...for initiating proceedings under section 340, Cr. P. C., it is necessary that the court should feel aggrieved by a misuse of its process...there must be a substantive issue of unfair disclosure...we will have to see whether the FIR is on record...”, remarked the bench.

When the bench agreed to treat the application for recall as a review petition and dismiss the application under section 340, Cr. P. C., Ms. Jaising pressed, “the application cannot be rejected and must be dealt with as per the law...the original FIR will be on record as it was finally tendered across the bar...it is a different issue whether the judgment was impacted by the false and fabricated FIR or not, but it is beyond doubt that the offence under section 191, IPC is complete...the petitioner cannot say that he was not aware of the full contents of the FIR...”

She relied on the apex court judgment in Re: Suo Motu Proceedings against R. Karruppan, advocate (2001), wherein an advocate made a statement that he was not aware that the age of the CJI had been determined by the President in terms of Article 217, but the court concluded that he was aware and held him guilty under section 191, IPC. Ms. Jaising quoted the following observations from the judgment- “...Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence particularly in cases, the adjudication of which is depended upon the statement of facts... The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy...”

“The offence under section 191 is an absolute offence...I only need to show his statement was not correct”, advanced Ms. Jaising.

When the Senior Counsel sought to cite the 1994 Supreme Court judgment in Chandra Shashi v. Anil Kumar Verma, the bench noted that the same deals with the law of contempt, asking Ms. Jaising to refer authorities on perjury.

When Ms. Jaising relied on the 2008 judgment of the apex court in Mahila Vinod Kumari v. State of MP, dealing with the tendering of false and fabricated evidence for prosecution for the offence of gangrape, the bench observed, “that matter stands on a very different footing...there, someone’s personal liberty was prejudiced by the perjury...”

Finally, Ms. Jaising submitted that the contention that if the petitioner has committed a wrong, it is for the respondent to point out the same has been rejected by the apex court, upholding the doctrine that the one approaching the court must do so with clean hands. In this behalf, she cited the judgment in S. P. Chengalvaraya Naidu v. Jagannath (1993), in so far as it was held therein, “Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of the (release deed) and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party”

The matter is next scheduled for hearing on May 16.