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Latest Amendment in SC/ST Atrocities Act and its fallout

Lalit Shastri

Section 144 of the Criminal Procedure Code (CrPC) has been imposed in five districts of Madhya Pradesh ahead of the nationwide bandh (strike) on 6 September called by a number of organisations opposing the SC/ST Prevention of Atrocities Amendment Bill passed in Parliament in August 2018.

In poll-bound Madhya Pradesh, Section 144 has been imposed in Gwalior (city), besides Shivpuri, Guna Bhind and Ashok Nagar districts.

Union Home Minister Rajnath Singh had said in Lok Sabha on 3 April 2018 after large-scale violence and arson in some parts of the country that he could fully appreciate that there was widespread anger among the people, following the Supreme Court order (of March 20, 2018) that provided for a protective mechanism under the SC/ST Prevention of Atrocities Act, permitted anticipatory bail and made it mandatory for a preliminary inquiry within seven days by the Dy. S.P. concerned to find out whether the allegations make out a case under the PoA and that arrest in appropriate cases could be made only after approval by the Senior Superintendent of Police.

The Home Minister had reassured the House that there had been no dilution of the PoA Act by the BJP led NDA Government, rather after coming to power and examining the SC/ST Prevention of Atrocities Act, a decision had been taken to strengthen it.

Immediately after the judgement of Supreme Court, the Union Government was quick in filing a review petition in the Supreme Court.

The Modi Government did not delay its act in this matter and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill,2018 was passed by the Lok Sabha on 6 August 2018 and three days later also by Rajya Sabha.

Section 18A has been inserted in the PoA Act to nullify conduct of a preliminary inquiry before registration of an FIR, or to seek approval of any authority prior to arrest of an accused, and to restore the provisions of Section 18 of the Act.

Section 18A, inserted in the Act, states that:-

(1) For the purpose of the PoA Act:

(a) preliminary inquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for arrest, if necessary, of any person, against whom an accusation of having committed an offence under the PoA Act has been made and no procedure other than provided under the PoA Act or the Code of Criminal Procedure, 1973, shall apply.

(2) The provision of section 438 of the Code shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any Court.

While Section 438 of the CrPC deals with direction for grant of bail to a person apprehending arrest. Under section 18A (2) of PoA, “The provision of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”

Earlier the PoA Act was amended in January, 2016. Rule 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, specifies precautionary and preventive measures to be taken by the State Government.

Rule 7(1) of the PoA Act specifies that an offence committed under the PoA Act, shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police (Dy.S.P.). Rule 7(2) of the Rules stipulates that the Investigating Officer shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government.

Section of 14 of the PoA Act, specifies that for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act. Accordingly, State Governments and Union Territory Administrations of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Odisha, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura, Uttarakhand, Uttar Pradesh, West Bengal, Andaman & Nicobar Islands, Chandigarh, Daman & Diu, NCT of Delhi and Puducherry have designated District Session Courts as Special Courts. Further, to accelerate the pace of trial of cases under the PoA Act, 192 exclusive Special Courts have also been set up by the States namely Andhra Pradesh (13), Bihar (11), Chhattishgarh (6), Gujarat (26), Karnataka (8), Kerala (2), Maharashtra (2), Madhya Pradesh (43), Rajasthan (25), Tamil Nadu (4), Telangana (10), Uttar Pradesh (40) and Uttarakhand (2).

For dealing with false cases under the PoA Act, relevant Sections of the IPC can be invoked by the concerned agencies.

The directions of the Supreme Court in its judgment earlier this year in Criminal Appeal No. 416 of 2018 (Dr. Subhash Kashinath Mahajan Vs the State of Maharashtra and Another) amounted to amending the PoA Act.

The apex Court said that an accused person was entitled to anticipatory bail and directed that preliminary inquiry should be conducted within seven days by the Dy. S.P. concerned to find out whether the allegations make out a case under the PoA Act and that arrest in appropriate cases may be made only after approval by the Senior Superintendent of Police.

Pointing out that there was a large-scale misuse of the SC/ST (Prevention of Atrocities) Act, the court held that an arrest is not mandatory under the SC/ST Act, and the automatic arrest was scrapped.

The Supreme Court said that the implementation of PoA Act “should not result in perpetuating casteism which can have an adverse impact on the integration of society and constitutional values”.

 

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