To,
THE HON’BLE CHIEF JUSTICE OF INDIA,
SUPREME COURT OF INDIA TILAK MARG,
NEW DELHI-110001 EMAIL – supremecourt@nic.in
Subject: Request to Direct the Home Ministries/ Police Department of the State governments, High Courts and District Judiciary not to issue or entertain the applications for giving 41-A CRPC notice for the offences under the section of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 2015 (The Act herein)
Respected Hon’ble Chief Justice of India and his companion judges of the Hon’ble Supreme Court of India,
1. It is submitted that the registration of FIRs under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 has become a challenging task as the victims of the atrocities are not believed by the police administration. In some cases where the Police are forced to register the FIRs through court orders or by public pressure, the Police have entirely stopped arresting the accused and issuing the notices under Section 41-A of Cr.P.C. The accused are misusing their liberty after receiving the notices under Section 41-A Cr.P.C. to terrorise the victims and to prevent proper investigation.
2. It is submitted that the accused are approaching the various High Courts by filing Criminal Petitions under section 482/438 of Cr.P.C. The Hon’ble High Courts are passing orders directing the Police to issue notices under Section 41-A of Cr.P.C. and follow the guidelines of the Supreme Court in Arnesh Kumar Vs State of Bihar(AIR 2014 SC 2756) even in cases where there is a prima facie case against the Accused under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 were made out.
3. It is further submitted that the decision of the Supreme Court in Arnesh Kumar Vs. The State of Bihar does not apply to the cases registered under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 as amended by SC ST(POA) Amendment Act 2015 in as much as the very object of Sections 15A (3) and 15A (5) and Section 18 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 would be defeated.
4. It is further submitted that the Hon’ble Supreme Court in Union of India vs State of Maharashtra (2018) did not reference the decision in Arnesh Kumar Vs. State of Bihar. On the other hand, the Hon’ble Supreme Court mentioned that the bar created under Section 18 on the grant of anticipatory bail does not attract if a prima facie case is not made out attracting the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and that Section 482 Cr.P.C. can be invoked for quashing the FIR.
5. It is submitted that in many cases, the police officers are issuing notices under Section 41-A Cr.P.C. to the accused who allegedly committed offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, which is against the law and violative of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and against the spirit of the Act.
6. It is submitted that the High Courts have erred in passing the orders directing the Police to issue notices under Section 41-A Cr.P.C. in the cases registered under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
7. It is submitted that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 is a special enactment, and Section 41-A Cr.P.C. does not apply to the offences registered under the special legislation in as much as special law prevails over the general law. As such, issuing the notices under Section 41-A Cr.P.C. to the accused who allegedly committed offences under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also violates section 18 of the Act, which bars the pre-arrest bail. Further issuing 41-A Cr.P.C. Notices without arresting the accused is equal to granting anticipatory bail, which is banned under section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
8. It is submitted that section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 reads, “Section 438 of the Code not to apply to persons committing an offence under the Act. —Nothing in Section 438 of the Code shall apply about any case involving the arrest of any person on an accusation of having committed an offence under this Act”.
9. It is submitted that despite the bar under Section 18 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 on the grant of anticipatory bail, the High Courts are entertaining applications under Section 438 Cr.P.C. even in cases where there is prima facie case against the accused made out for the offences under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
10. It is submitted that the orders of the High Courts are against the spirit of the SC ST (POA) Act 1989 and violative of Sections 18 and 15-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Therefore, such High Court orders are illegal and liable to be set aside.
11. It is submitted that to protect the victims and witnesses, Section 15A of the Act confers comprehensive rights and imposes obligations on the State for their protection. Section 15A (3) reads, “A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act”. And Section 15A(5) reads as “A victim or hid dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing”.
12. It is submitted that Sub Sections 3 and 5 of Section 15A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 are mandatory as per the decision of Supreme Court in Hariram Bambi vs Satyanarayana and another of the Supreme Court, 2021.
13. It is submitted that Section 18 of the Act states that anticipatory bail shall not be allowed to a person accused under the Act. Therefore, the non-arrest of a person charged under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, which bars anticipatory bail, makes a mockery of the provision.
14. It is submitted that Section 20 of the SC ST (POA) Act 1989 reads as, (An act to override other laws).”—Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law”.
15. It is submitted that Section 41-A of Cr.P.C. contradicts and weakens Section 21 of the Act, which compels the state government to take necessary measures to implement the Act effectively. Thus, giving an accused the benefit of Section 41-A renders these provisions ineffective and leads to a miscarriage of justice.
16. It is submitted that Section 41-A of Cr.P.C. defeats the very object of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and the reasons for enacting the said Act. Preventing the application of Section 41-A Cr.P.C. does not make the arrest arbitrary and mandatory. Instead, it seeks due compliance with the conditions under Section 41 of the Cr.P.C. so that the objectives of the Act may be fulfilled. It strikes at the root of the prevalent dominance of the so-called upper caste and the consequent misuse of liberty by the persons who are alleged to have committed offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 while on bail to terrorise the victims and to prevent proper investigation.
17. It is submitted that since the Police are not arresting the accused under the Act, the accused terrorise the victims, prevent the proper investigation, and threaten them to withdraw their cases, thereby hampering the administration of justice. As the so-called upper caste people enjoy a relatively better socio-economic status, it becomes easier for an accused to abuse power. Such incidents are frequently reported.
18. It is submitted that it has become a common feature for the accused alleged to have committed offences under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 to file counter cases against the victims and to force them to withdraw the cases filed by them. The Police, under the influence of the accused persons, mostly register false cases against the victims for the offences like 354, 354-A, 354-D IPC.
Therefore, given the facts and circumstances and the settled legal position, it is prayed this Hon’ble Court may be pleased to Direct the Home Ministries of the State governments, High Courts and District Judiciary not to issue or entertain the applications for issuing 41-A Cr.P.C. notices to the accused alleged to have committed the offences under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 in the interest of justice and render justice.
~ Dr. B Karthik Navayan,
Human Rights Activist, Hyderabad.
Please sign the petition here.
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