Amended SC-ST Act Does Not Limit Court's Jurisdiction To Grant Anticipatory Bail In Cases Where No Offence Is Made Out: Calcutta HC

The bench comprising Justice Joymalya Bagchi and Justice Manojit Mandal observed that, notwithstanding incorporation of section 18A into the Act, limited jurisdiction of the Court to examine the uncontroverted allegations in the FIR to see whether such allegations when taken at their face value disclose ingredients of such offence is not taken away.

The FIR against was registered against Publisher of a Bengali newspaper pursuant to a complaint lodged by a member of the Sabar community alleging that the publication of a news item titled "Mrittu Noi Sabarpallir Chinta Bhat"( It is not death, but denial of food which troubles Sabar community).

Ironically, the said news item highlighted the lack of medical facilities and denial of basic amenities like drinking water, housing, lack of job cards and voters cards etc. amongst the members of the community. The article, in fact, blamed indifference and lack of initiative on the part of the administration to provide such facilities.

"We are at a loss as to how the aforesaid publication which has essentially brought to light the agonies and difficulties faced by the members of the aforesaid community in the face of the State apathy could be conceived of as an insult or intimidation or an act to promote feelings of enmity, hatred or ill-will against the members of the said community", said the bench while hearing the journalist's plea.

Amendment Does Not Take Away Court's Limited Jurisdiction

In this case, the bench dealt with the contention put forth by the public prosecutor that newly inserted provision Section 18A completely obviates any judicial enquiry with regard to "prima facie" case once F.I.R. is registered under the Act. The bench held that operation of section 18A of the Act cannot take away the limited jurisdiction of the Court to examine whether the uncontroverted averments in the F.I.R. disclose the ingredients of any offence under the Act.

""Case under this Act" in section 18A cannot mean a case where the police officer mechanically or erroneously quotes an offence under the Act in the formal FIR although the uncontroverted allegations in the written complaint do not disclose ingredients of such offence.. No doubt, a deeper scrutiny with regard to probability or improbability of the truthfulness of the allegations may not be within the domain of the Court under the scheme of the Act of 1989 in view of the exclusionary clause, however, to insist that the Court should shut its eyes and mechanically accept the ipse dixit of a police officer with regard to registration of an FIR under the Act without examining whether uncontroverted allegations disclose ingredients of such offence – a sine qua non for registration of FIR – is not the purpose of the said amendment"

Section 18A Clarificatory Amendment

The court also observed that Section 18A was not incorporated to introduce any higher bar in the matter of applicability of section 438 Cr.P.C. than what was envisaged in section 18 thereof. The court also noted that Section 18 is not repealed. "Sub-section (2) of section 18A appears to be a clarificatory amendment reiterating the statutory bar to the applicability of section 438 Cr.P.C. in cases under the Act notwithstanding directions gives in Dr. Subhash Kashinath Mahajan (supra) relating to holding of preliminary enquiry prior to registration of FIR or obtaining approval from another authority prior to arresting the accused", the bench said.

Freedom of speech' is best protected by ensuring 'freedom after speech' of its maker

Referring to the contents of the article, the bench observed that it do not disclose any insult, intimidation, enmity, hatred or ill-will towards the community. Instead, the bench added, it is an account of the agonies and miseries suffered by members of the Sabar community who, according to the publisher, are deprived of basic necessities of life. The bench said:

"We are of the opinion no man of reasonable prudence could have come to the conclusion that the said news item was published to insult, humiliate or promote feelings of enmity, hatred or ill-will amongst the members of the Sabar Community. Allegation of the de facto complainant that such publication hurt the sentiments of the Sabar community or caused breach of peace or ill will amongst them are so patently absurd and inherently improbable that no case under the Act could have been registered. Contents of the publication do not disclose any insult, intimidation, enmity, hatred or ill-will towards the community and any fanciful inference in the FIR dehors the primary facts cannot constitute the ingredients of the alleged offences justifying the applicability of the exclusionary bar under sections 18/18A of the Act."

In this context, the bench further remarked:

Divergence of opinion is the heart and soul of any dialogue in a democratic polity. Freedom to express independent views is most essential for a vibrant and informed democracy and liberty of the members of the press like the petitioner who are in the profession of dissemination of such views in society needs to zealously guarded so that they are not cowered to silence by the scepter of criminal prosecution and arbitrary arrest. 'Freedom of speech' is best protected by ensuring 'freedom after speech' of its maker.

Read Judgment