No Bar In Considering Anticipatory Bail Pleas Even After 2018 SC-ST Act Amendment: Bombay High Court

“Only because the first informant belongs to scheduled tribe or scheduled caste, the crime cannot be registered for offence punishable under the Act and offence can be registered under the Act only if there are ingredients of the offences punishable under the Act in the accusation.”
The Bombay High Court has held that Sessions Court and High Court to consider anticipatory bail application in cases registered under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, even after 2018 amendment of the Act introducing Section 18A.

The bench comprising Justice TV Nalawade and Justice Mangesh S. Patil also observed that even the police officer is expected to give thought at the time of registration of the crime under section 154 of Cr.P.C. that whether the allegations constitute the offence under the Act. Only because the first informant belongs to scheduled tribe or scheduled caste, the crime cannot be registered for offence punishable under the Act and offence can be registered under the Act only if there are ingredients of the offences punishable under the Act in the accusation, it said.

 

The court was considering an appeal filed by a man charged under the SC-ST Act whose anticipatory bail petition was rejected by the Sessions’ court holding that there is bar of provision of section 18-A(2) of the Act. Before the High court also, the prosecution contended that in view of the aforesaid provision, the decisions, if any, given in the past to hold that the application under section 438 of Cr.P.C. is tenable, cannot be used after 20.8.2018.

 

Referring to the Amendment Act, the bench noted that the provision of section 18 which is not much different from the provision of section 18-A (2) of the Act. The bench further observed that the higher judiciary has the power to interpret the new provisions also to ascertain the object behind the new provision in addition to the power to ascertain the Constitutional validity of such newly added provision. It said:

“It needs to be kept in mind that the provision of section 18 of the Act was kept intact and provision of section 18-A(2) was added which can be said as supplementary provision to main section 18. In view of the situation created by the case of Dr. Subhash cited supra, the entire provision of section 18-A was inserted by legislature and so, it can be said that the main purpose of the legislature was to say that there was no necessity of any enquiry before registration of the crime and there was no necessity of taking approval before making arrest of the offender if the offence is committed under the Act. Apparently, there was no other reason for the amendment of the year 2018. That is the only interpretation which is possible in respect of non-obstante clause added in section 18-A(2) “Notwithstanding any judgment and order or direction of any Court bar, shall apply”.”
In this case, the FIR was initially registered under sections 307, 341, 504 and 506 of I.P.C. Later the complainant gave supplementary statement alleging that the incidents took place due to hate of accused towards him as he belongs to scheduled tribe. Examining the FIR contents, the court observed:

“The allegations made by the first informant in respect of both the incidents even in supplementary statement do not show that there was apparently intentional insult or intimidation with intent to humiliate. It is not the allegation of the first informant that abuses were given to him by taking the name of his caste by the appellant as provided in section 3 (1)(s) of the Act”
The court then allowed the anticipatory bail.

The Judgment and The Amendment

In Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, the Apex Court had issued directions to see that some preliminary enquiry is made prior to registration of the crime and the period for the same was fixed, It was also directed that, if the offender was not public servant, permission has to be obtained from Senior Superintendent of Police of District and the permission is obtained from appointing authority when the offender involved is a public servant before the arrest. The Apex Court had also observed that there is no absolute bar in respect of the applications of anticipatory bail filed under the Atrocity Act if prima facie case is made out or where on judicial scrutiny, the complaint is found to be prima facie malafide.

The decision in Subhash Kashinath Mahajan had caused massive uproar which made the Union of India and several state governments to seek a review of the same. However, the bench of Justices Adarsh Kumar Goel and U. U. Lalit refused any relief.

It was thereafter, the Parliament passed an amendment to the Act inserting Section 18A. It virtually nullifies the court-imposed requirements of undertaking a preliminary inquiry and of procuring approval prior to making an arrest. It also reiterates in Section 18A(2) that provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or direction of any Court.

A PIL praying that the 2018 Amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 be struck down as being in the teeth of Articles 14, 19 and 21 and violative of the basic structure of the Constitution, is pending consideration before the Apex Court.

The Calcutta High Court had recently made a similar observation holding 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.

Supreme Court once again refuses to stay amendments to SC/ST Act

The Supreme Court on Wednesday once again refused to stay amendments to the SC/ST Act that restored the no anticipatory bail provision and said all matters including the Centre’s review petition will be heard on February 19.

A bench headed by Justice U U Lalit said the issue requires hearing in detail and it will be appropriate if all matters are heard on February 19.

The bench refused to stay the amendments to the SC/ST Act after senior advocate Vikas Singh, appearing for one of the petitioners who had challenged the changes made to the Act, sought an immediate stay on it.

The apex court had on January 25 said it will consider listing the Centre’s review and petitions challenging the amendments to the SC/ ST Act 2018, together before an appropriate bench.

The top court had earlier refused to stay the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 which restored the provision that no anticipatory bail be granted to the accused.

Parliament on August 9 last year had passed a bill to overturn the apex court order relating to certain safeguards against arrest under the SC and ST law.

On March 20, 2018, the apex court had taken note of the rampant misuse of the stringent SC/ST Act against government servants and private individuals and said there would be no immediate arrest on any complaint filed under the law.

The top court had earlier said that the new amendments to the SC/ST law passed by Parliament cannot be stayed and had sought the Centre’s response on pleas challenging the provisions.

The pleas have sought declaration of the new amendments to the Schedule Castes and Schedules Tribes (Prevention of Atrocities) Act as ultra vires.

The amendments rule out any provision for anticipatory bail for a person accused of atrocities against SC/STs, notwithstanding any court order.

They provide that no preliminary inquiry will be required for registering a criminal case and an arrest under this law would not be subject to any approval.

The court was hearing the pleas alleging that two Houses of Parliament had “arbitrarily” decided to amend the law and restored the previous provisions in such a manner so that an innocent cannot avail the right of anticipatory bail.

Supreme Court refuses to stay amendments to SC/ST Act

The Supreme Court Thursday refused to stay the proposed amendments to the SC/ST (Prevention of Atrocities) Act which restored the no anticipatory bail provision for the accused.

A bench headed by Justice A K Sikri said the pending review petition filed by the Centre against the apex court’s March 20, 2018 verdict and the pleas challenging the new amendments made in the SC/ST verdict will be taken up together.

The bench referred the matter to the Chief Justice for reconstitution of a bench which Justice U U Lalit was a part of.

Justice Lalit was part of a bench which had passed the March 20, 2018 verdict, taking note of the rampant misuse of the stringent SC/ST Act against government servants and held that there shall be no immediate arrest on any complaint filed under the law.

SC asks for attachment of bank accounts, movable properties of Amrapali Group firms

New Delhi: The Supreme Court today expressed displeasure on Amrapali Group of companies for playing “fraud” and “dirty games” with the court and ordered attachment of all bank accounts and movable properties of 40 firms of the real estate major.

The apex court also directed Amrapali Group of companies, which are yet to hand over possession of flats to around 42,000 hassled home buyers, to place before it details of all its bank accounts from 2008 till today and ordered freezing of bank accounts of all the directors of its 40 firms besides attaching their personal properties.

While taking note of alleged diversion of Rs 2,765 crore funds collected from the investors by the group, a bench of justices Arun Mishra and U U Lalit said it prima facie amounted to criminal breach of trust and it would deal with the issue after hearing the parties.
The court said that the group companies shall not be entitled to deal with either the bank accounts or the movable properties in any manner whatsoever without its permission.
The bench also took umbrage as to how the National Buildings Construction Corporation (India) Ltd has issued advertisement inviting co-developers for doing the work related to Amrapali group without taking approval of the apex court.
The apex court summoned the chairman of NBCC (India) Ltd and the secretary of Ministry of Housing and Urban Affairs for tomorrow to explain their stand on the issue observing that the “unfair” move by the corporation was apparently to “scuttle” the court’s order.

It directed Amrapali Group to place before it the names of chartered accountants (CAs), both external and internal, who were handling the accounts of these 40 firms.

SC to medical college: Pay Rs 20L penalty to each of 19 students for denying admission

New Delhi: The Supreme Court has directed a Maharashtra-based medical college to pay Rs 20 lakh as penalty to each of the 19 meritorious students who were “illegally” and “wrongly” denied admission by it six years ago.
The apex court asked the college to deposit the money in three months with the Pravesh Niyantran Samiti (PNS), a body constituted by the state government to oversee and regulate admissions in medical colleges.
The 19 students were “illegally” and “wrongly” denied admissions to MBBS and BDS courses in the 2012-13 academic year.

A bench of justices Arun Mishra and U U Lalit spared the Dr. Ulhas Patil Medical College and Hospital, Jalgaon, in Maharashtra from de-recognition and set aside the direction of the Aurangabad bench of the Bombay High Court as the institution agreed to pay the penalty to the students.

“As the college has shown the gesture of making payment of penalty to the 19 students, who were deprived of admission, considering the fact that several years have passed and a large number of students have passed out and are undertaking instructions in the college, it would not be appropriate in the facts of the case that once monetary penalty has been imposed to withdraw the recognition… And to dis-affiliate the appellant college,” the bench said.

SC to examine if a person with ‘low vision’ can be a doctor

New Delhi: The Supreme Court today agreed to examine whether a person suffering from disability of ‘low vision’, in which eyesight cannot be corrected or improved, can be allowed to pursue MBBS course and treat patients..

This contentious issue came up before a vacation bench of justices U U Lalit and Deepak Gupta which wondered whether it would be feasible to allow a person with visual impairment to become a doctor and treat patients.
The bench issued notices to the Centre and the Gujarat government on a plea filed by a student suffering from ‘low vision’, who has cleared the NEET 2018 undergraduate examination, seeking a direction for issuance of disability certificate as per law so that he could take admission in MBBS course.

“If you talk about any other profession like legal or teaching, it can be understood that even a blind person can successfully pursue the career. As far as MBBS is concerned, we have to see, how much it is feasible and possible,” the bench said.
Recalling his personal experience with an intern who was blind, Justice Lalit said that he had difficulties in reading the documents and used to convert digital documents into brail form, for reading and understanding them.

“After successfully completing his internship with me, he has now become a Rhodes scholar studying at the University of Oxford,” Justice Lalit said.

Senior advocate Sanjay Hegde and advocate Govind Jee, appearing for minor student Purswani Ashutosh through a doctor, said that there was already a provision for reservation of five percent seats of total intake capacity in the Rights of Persons with Disabilities Act, 2016.

He said that a direction should be issued to the Centre and Gujarat government for implementing the reservation scheme for persons with benchmark disability as mandated by provisions of the Act and issuance of certificate of disability.

To this, Justice Lalit said that he had studied law from a government law college and a professor who taught him Company law was blind but he remembered everything by heart.

“So in teaching or legal profession, there is no problem but when it comes to medical education, can a person with a disability of low vision be allowed. This we have to see,” the bench said.

It directed the student to be present before the committee of B J Medical College, Ahmedabad within three days from today, with the copy of this order.

“The petitioner shall be medically examined and the appropriate medical certification regarding the claim of the petitioner that he suffers from ‘low vision’ shall be transmitted to the Registry of this court within four days therefrom,” the bench said and posted the matter for further hearing on July 3, before an appropriate bench.

The student, in his petition, has claimed that he had appeared for NEET UG examination 2018 under physically handicapped category and has scored all India rank of 4,68,982 and category Physically Handicapped rank as 419 and said that he has fair chance of getting a seat in medical/dental colleges in All India Quota/ the State Government Medical Colleges under the special category.
He said that on May 30, he had visited Vardhman Mahavir Medical College, Delhi for disability certificate as notified by the central government but they had refused to assess his disability.
The students in his plea said that on June 6, though his father had even met the doctors concerned of the committee at the BJ Medical College at Ahmedabad for issuance of disability certificate, they received no response from the state government.
He sought urgent disposal of his matter as the counselling process for admissions in MBBS course is going on.
In a landmark move, the apex court had on September 24, 2017, opened the doors for colour-blind students to pursue MBBS course by ordering admission of two such candidates, who had scored high marks in the entrance examination.

The apex court had said that peculiar facts and circumstances of the case required it to invoke special powers under Article 142 of the Constitution as it was a matter of “transcendental importance of justice”, .

Sealing: regular bench to consider allegations of inaction, says SC

New Delhi:  Already seized with the contentious issue of sealing of unauthorised constructions in the national capital,the Supreme Court today left it to its bench, to consider the allegations of inaction by civic bodies in going ahead with the sealing drive.

A vacation bench comprising justices U U Lalit and Deepak Gupta said that reports filed in this regard by the monitoring committee, which is mandated by the top court to identify and seal unauthorised constructions in Delhi, should be considered by the regular bench which is hearing the matter.
In its two reports, the committee has claimed that civic agencies, including the South Delhi Municipal Corporation (SDMC), have refused to carry out the sealing drive on the grounds that amendments in the Master Plan of Delhi-2021 were not finalised yet and the issue of notifying mixed-land use along 351 roads was pending in the apex court.

“We are sitting in a vacation court. We have not dealt with the matter. Another bench is dealing with it,” the bench said, adding, “Let this matter be listed before the regular bench”.

Justice Lalit also observed that the Delhi government’s application on the issue relating to notifying mixed-land use along 351 roads here was under consideration of a bench headed by Justice Madan B Lokur that had posted it for hearing on July 11.

The move of notifying mixed-land use along 351 roads is intended to avoid sealing drive against commercial establishments along these roads.

“Why should we, at this juncture, hear this?,” the bench said, adding, “the application (by Delhi government) was not rejected outright (by the court) then why we should change the course?”
“If that bench had granted you time (to respond), this means that they must have something in mind,” the bench said.
“We deem it appropriate that report numbers 120 and 121 (filed by the committee) be listed before the bench taking up these matters on July 11. We give liberty to the amicus curiae to mention the matter before the court immediately after re-opening of court in case of any urgency,” the bench said.
On June 12, the amicus had mentioned the matter before the bench for urgent listing.

Authorities not proceeding with sealing drive: Monitoring Committee

New Delhi: A monitoring committee, which is mandated by the court to identify and seal unauthorised constructions in Delhi, today claimed in the Supreme Court that civic bodies have refused to carry out sealing drive on the ground that amendments in Master Plan of Delhi-2021 were not finalised yet.

Master Plan of Delhi-2021 is a blueprint for urban planning and expansion in the metropolis to ensure overall development and the proposed amendments are aimed at bringing a uniform floor area ratio (FAR) for shop-cum-residential plots and complexes on par with residential plots.

FAR is the ratio of a building’s total floor area (gross floor area) to the size of the piece of land on which it is built.

The matter was mentioned before a vacation bench of justices U U Lalit and Deepak Gupta which said it would hear the issue on June 14.

Senior advocate Ranjit Kumar, who is assisting the top court as an amicus curiae in the sealing matter, mentioned the issue before the bench and referred to the apex court’s May 15 order which had said that the monitoring committee would continue with its duties and responsibilities.

He placed before the bench a report of the monitoring committee and said that government authorities have said that since the amendment in the Master Plan of Delhi-2021 was not finalised, they would not allow sealing to go on.

Kumar said that on June 8, the monitoring committee had inspected some areas in South Delhi and asked authorities concerned of South Delhi Municipal Corporation (SDMC) to take action against some unauthorised structures.

“They (authorities) said we will not seal them,” he said.

To this, the bench asked him to serve the copy of the report to the counsel appearing for the Delhi government, the Union of India as well as SDMC and said that the matter would be heard on June 14.

Additional Solicitor General Maninder Singh, who is appearing for Delhi Development Authority (DDA) in the matter, said that he would inform the DDA about it.

The monitoring committee, comprising K J Rao, former advisor to the Election Commissioner; Bhure Lal, chairman of Environment Pollution (Prevention and Control) Authority; and Major General (Retd) Som Jhingan, was set up on March 24, 2006, by the top court.

The court had on May 24 rejected the Centre’s plea seeking modification of its order in which the DDA was asked to invite suggestions from the public on amending the Master Plan of Delhi-2021.

The top court had on May 15 accepted DDA’s action plan in which it had listed out steps including launching of an interactive website and a smart phone application to enable the public register their grievances regarding illegal constructions and given the authority 15 days time to make it operational.

The DDA had also proposed to fix responsibility on officials in cases of illegal construction activities in the national capital and violation of the master plan and building bye-laws.

In its five-page action plan, the DDA had earlier said that it intends to check all ongoing and future unauthorised constructions in the city under the supervision of a special task force which was constituted on April 25 following an apex court order.

The court had on March 6 stayed any “further progress” in amending the Master Plan of Delhi-2021 to protect unauthorised construction from ongoing sealing drive in the national capital, sternly observing that this ‘dadagiri’ (bullying tactics) must stop.

Supreme Court seeks details from real estate major Amrapali Group on money collected and invested.

In a bid to ascertain whether there was any “siphoning” of funds, the Supreme Court today asked real estate major Amrapali Group to provide details of the money it had collected from the homebuyers and how much it had invested in its housing projects.

The Supreme Court also asked the group to apprise it on whether there was any outstanding amount which was to be paid by the homebuyers to it and how much more fund was required to complete the projects.

A bench comprising, observed that these details were needed so that it could pass an effective order in the matter.

“We want to know if there is siphoning of money and we also want to know if there is liability of the buyers,” the bench said.

Amrapali Group had earlier given the details of its ongoing housing projects, stages of work and the likely time to complete construction.

During the hearing today, one of the advocates appearing for the homebuyers referred to the status of some of the projects of the group in Noida and Greater Noida in Uttar Pradesh.

He said in the Amrapali Sapphire project, out of a total of 1,030 units, possession was given for 950 flats and 80 units were yet to be handed over.

Similarly, in the Amrapali Zodiac project, out of total of 2,217 flats, possession was given for 1,650 flats, while that for 567 units was yet to be given.

He said that in the Amrapali Eden Park project, there was a total of 316 units and possession was given for all the flats, while in Amrapali Silicon City I project, out of 2,464 units, possession for 375 flats remained to be given.

However, the lawyer said there were certain deficiencies in these projects with regard to fire-fighting, lifts, water supply, sewage, power backup, parking, CCTVs and others.

At this, the bench observed, “few facts are still missing. How much money remains to be paid project-wise? Please give a chart. How much money has been invested in projects, how much was collected, how much money is required.”

“Let the builder also submit it. Only then we can pass effective order,” the bench said.

The counsel for the homebuyers told the court that there was a delay of years in handing over the possession of flats to the buyers due to which they have suffered a lot.

“We understand your rights,” the bench said.

The counsel appearing for the group told the court that they had earlier too given details of the expenses incurred by them in these projects. He said there were some unsold units also.

When the bench asked the group about its roadmap to complete the projects, the counsel said, “the court had asked us to complete tower by tower and project by project. We cannot do it in one go unless cash flow is there”.

However, the counsel for the buyers said there were three categories of projects — one where people were residing and possession of several units have been handed over, the other was where builder was saying that construction work would be completed within a year and third category was where construction was at a nascent stage.

At the fag end of the hearing, the bench asked the group if the unsold units in projects, where possession could be handed over, be given to the buyers who have put their money in those projects which has not taken off the ground.

The counsel representing the group said they were willing to do this but there were objections from the buyers about change of location, size of the flats and others.

The bench posted the matter for hearing on April 17.

The company, which is facing insolvency proceedings initiated by the creditor bank for not repaying the loans, had earlier told the top court in an affidavit that it was not in a position to complete the projects and hand over possession of flats to over 42,000 home-buyers in a time-bound manner.

It had also said the properties were needed to be developed with the help of co-developers.

Our concern limited to protection of Mahakaleshwar’s ‘lingam’: Supreme Court

It is not for a court to decide how worship is to be performed in a temple, the Supreme Court said today stressing that its concern was only about the protection of the ‘lingam’ at the ancient Mahakaleshwar Jyotirlinga temple at Ujjain in Madhya Pradesh.

A bench of Justices Arun Mishra and U U Lalit observed that it would not go into the issue of what religious rituals should be followed and how worship should be performed there. It was for the temple management and the concerned stakeholders to discuss and decide.

“We are only concerned about the ‘lingam’,” the bench observed and reserved it order on the issue of protection of the deteriorating condition of the ‘Jyotirlingam’, a phallus symbolising Shiva.

The apex court has been dealing with the issue of protecting the ‘lingam’. It had earlier taken strong exception over some display boards set up at the temple which had attributed new worshipping norms as directions of the top court.

It had said the court had never given any direction to implement the new norms of worship, which were actually submitted by Mahakaleshwar Mandir Management Committee in consultation with an expert committee set up by the court.

It had directed the temple management committee to immediately remove these display boards and even asked the media to report the issue with caution.

As per the new norms, the devotees was permitted a fixed amount of water measuring 500 ml in an appropriate small pot per person for ‘Jalabhishek’ (worshipping by offering water).

The water for ‘Jalabhishek’ should be taken from the Reverse Osmosis (RO) machine installed during the religious congregation of Simhastha in 2016, for which a connection was to be provided near the sanctum sanctorum.

On August 25 last year, the apex court had constituted an expert committee to survey and analyse the Mahakaleshwar Jyotirlingam and prepare a report stating the rate at which the deterioration in its size was taking place and the measures to prevent it.

The committee was also directed to study other structures and the temple and submit recommendations on steps for overall improvement of entire premises and its preservation.