The Punjab and Haryana High Court has directed Punjab Director General of Police (DGP), to issue directions that any complaint filed by “third party” under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 should be lodged only after the District Attorney’s approval.
The bench of Justice Arvind Singh Sangwan passed the order granting pre-arrest bail to the two petitioners who were accused of uttering abuses against the community of the woman whom their son was intending to marry. The complaint was filed by some social activists after the audio recording of the incident was put up on social media by the son. Interestingly, the SC/ST Act does not allow granting of pre-arrest bail under SC/ST Act. Also, there is no bar under the Act for any “third party” or informant to file a case for an offence under the Act.
Background
The petition was filed seeking anticipatory bail for FIR filed under Section 3(1)(x) of the SC/ST Act by two petitioners who are husband and wife.
The counsel for the petitioners argued that the husband and wife are aged 67 and 58 years respectively, and are senior citizens. Their dispute is with their son who wanted to marry a woman belonging to SC/ST community. During a discussion they were having, the petitioners allegedly spoke derogatory words against the woman’s community. The petitioners disowned their son after he married the woman by putting a notice in the newspapers as he was allegedly mistreating them. One day they received a call from Rama Mandi police station, Jalandhar where the ASI put pressure on the petitioners to transfer property in the name of their son or else they will be falsely implicated in a case.
An FIR was finally lodged by social activists after they came across audio clips uploaded by the son, Prince Randhawa on social media, whereby the petitioners allegedly used abusive language against the girl’s community.
The petitioners’ counsel argued that the complainants are not victims under the SC/ST Act as defined under section 2(1)(ec). He argued that the complainants are not related to the girl and the audio clip was a private conversation and therefore no case is made out and that the FIR is being used to oust the petitioners from their house.
The counsel for the state submitted that a perusal of the audio clip shows that the petitioners have used some derogatory language against the girl in the name of her caste.
The court observed that since the woman, who is the victim, has not lodged any complaint means that she is hopeful of getting the things resolved in future and since the complainants have no locus standi, the petition was allowed. The court thus granted anticipatory bail to the petitioners.
The court further observed that the activists who filed the complaint have misused the SC/ST Act and thus, directed DGP, Punjab to issue instructions to all Senior Superintendents of Police in Districts that no FIR under SC/ST Act be registered at the instance of a third party unless an opinion is sought from the District Attorney (Legal) that the complainant falls within the definition of victim under SC/ST Act.
The complete order may be read here:
Is the direction justified?
The court, in conclusion, directed that a third party should not be allowed to lodge an FIR under SC/ST Act unless approval of District Attorney (Legal) is sought. While this direction has been passed, is it valid and in vires with the provisions of the SC/ST Act?
For starters, the court also commented on the activists not having locus standi in this case as they are not related to the victim. However, there is no provision under the Act that the complaint has to be filed by the victim or a relative of the victim. The Act, in fact, makes provisions for filing of complaint by an “informant” who can be anyone. Indian criminal justice system allows filing of FIR of an incident by anyone who has information of the offence and not just the affected or interested party as the case may be.
Further, by an amendment in 2018, the government inserted section 18A in the Act which states that no preliminary enquiry is required before registration of FIR and neither is any approval required before lodging the case.
Also, section 15A(12) allows the victims of offences under SC/ST Act to seek help of or receive help of NGOs or activists. The section states:
15A(12) It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates.”
Under sub-section 2 of section 18A, it states that “the provisions 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.” Section 438 pertains to pre-arrest bail in non-bailable offences. This means that any person accused of offences under the SC/ST Act cannot take advantage of applying for pre-arrest bail, whatever the case may be.
Thus, neither was the court, under SC/ST Act authorised to grant pre-arrest bail nor is its direction to seek approval before a non-victim lodges a case, valid. Both directions given by the court are evidently bad in law and in contravention to the provisions of the SC/ST Act.
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