Needless to emphasise that except in heinous offences, an arrest must be avoided, the court said.
A recent judgment of Supreme Court of India that read down the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which raked a lot of debates across the country, has been followed by the Madhya Pradesh High Court while disposing an appeal against denial of anticipatory bail to some persons accused of offences.
A bus driver had filed the complaint against the bus owner wherein the allegation was that while he demanded arrears of salary, he was abused publicly by referring to his caste and was also slapped and threatened to life. The owner, after his plea for anticipatory bail was rejected by the special court, approached the high court citing the apex court judgment in of Dr. Subhash Kashinath Mahajan case and prayed to either enlarge him on anticipatory bail or issue necessary directions to the investigating officer to follow the guidelines/directions issued by the apex court in the case.
Justice JP Gupta though held that the accused is not entitled to get the benefit of anticipatory bail in view of the provisions of the Act, observed that he cannot be denied the protection available under the law with regard to unjustified and unwarranted arrest.
Quoting the directives issued in Dr. Subhash Kashinath Mahajan, the court observed that it is expected from a police officer, who intends to arrest a person, not being a government servant and accused of the offence punishable under the Act of 1989, to arrest only with prior approval of the SSP concerned, and after recording the reasons of arrest in writing.
“Inasmuch as no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. Arrest and detention in police lock-up of a person can cause irreparable harm to the reputation and self-esteem of a person. Hence, arrest cannot be made in routine manner on a mere allegation of commission of an offence. It is expected from a police officer to act as a prudent man in the interest of protection of the constitutional rights of a citizen not to arrest a person without a reasonable satisfaction arrived after some investigation as to the genuineness and bonafides of a complaint and need of arrest and thereafter record genuine reasons showing that such arrest is necessary and justified,” the court said.
The court further emphasized that except in heinous offences, an arrest must be avoided. Perusing the case diary in this case, the court observed that the nature of the offence is not very severe and prima facie, arrest is not warranted for the purpose of investigation and his presence may be secured during trial by directing him to appear before the magistrate/court concerned in case of filing of the charge-sheet.
Dr. Subhash Kashinath Mahajan case
The Supreme Court, in this case, had issued directions to prevent the misuse of provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (SC/ST Act). In a review petition filed by the Centre which is still pending, the Supreme Court had recently refused to grant an immediate stay on the operation of the judgment.