The dilution of the SC/ST Prevention of Atrocities Act by the Supreme Court has seen widespread protests across the country with the Centre having already filed a review petition against it.
Now, the Kerala government has followed suit and a review petition has been filed by G Prakash who is the Advocate for the state government.
The respondents have been named as: Respondent 1 - State of Maharashtra through City Police Station, Karad, District Satara; Respondent 2 - Dr. Subhash Kashinath Mahajan, Director of Technical Education; and Respondent 3 - Bhaskar Karbhari Gaikwad.
Calling for a review of the Judgment dated 20.03.2018 in Criminal Appeal No 416 of 2018 passed by the Supreme Court, the petition states that the SC while disposing of this Criminal Appeal issued directions to prevent misuse of SC/ST Act.
It lays down the facts as follows:
a) Respondent 2 was serving as Director of Technical Education in State of Maharashtra at the relevant time.
b) Respondent 3 was earlier employed as a Store Keeper in the Government College of Pharmacy, Karad and was later posted at Government Distance Education Institute, Pune. Two of his seniors, Dr. Satish Bhise and Dr. Kishor Burade, made adverse entry in his annual confidential report implying that his integrity and character were not good. He lodged an FIR with Karad Police Station against the two officers under the Atrocities Act on January 4, 2006. The Investigating Officer concerned applied for sanction against them under Section 197 Cr.P.C., to the Director of Technical Education on December 21, 2010. The sanction was refused by Respondent no 2 on January 20, 2011. Because of this, 'C' Summary report was filed against Bhise and Burade which was not accepted by the court. He then lodged the present FIR against the Respondent no.2.
c). According to Respondent 3, the Director of Technical Education was not competent to grant/refuse sanction as the two persons are Class-I officers and only the state government has the authority to grant sanction. Thus, according to him, the Respondent no.2 committed the offences alleged in the FIR dated March 28, 2016 by illegally dealing with the matter of sanction.
d) Respondent 3 maintains that Respondent 2 misused his powers and refused permission to file a charge sheet against the accused. He further states that Respondent no. 2, after he was granted anticipatory bail, applied to the High Court under Section 482 Cr.P.C. for quashing the proceedings on the ground that he had merely passed a bona fide administrative order in his official capacity and his action did not amount to an offence, even if the order was erroneous.
In an order dated May 5, 2017, the High Court rejected the complainantâ€™s (Respondent 2) petition. Then the complainant filed a Special Leave Petition (Crl) No. 5661/2017 challenging the judgment of the High Court on various grounds. The appeal was allowed with certain directions to be followed before registering the FIR under the Act.
Based on the appeal, some of the conclusions of the Supreme Court were as follows:
1) Proceedings in the present case are clear abuse of process of court and are quashed.
2) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny, the complaint is found to be prima facie mala fide.
3) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a. non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention.
4) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
In view of the above conclusions, the review petition states that the SC directions have in effect nullified the provisions of the Atrocities Act, which was introduced with a view to protect SC/ST people.
The petition goes on to state the grounds on which it has been filed, which include among others:
(a) The judgment / order dated 20.03.2018 passed by this Hon'ble Court has gone against the provisions of the Atrocities Act and has wide ramifications as the same has created insecurity among SC/ST people and hence, the review petitioner/State of Kerala humbly requests the order of this Honâ€™ble Court to be recalled.
(b) There is an error apparent on the face of the record of the judgment dated 20.03.2018 passed by this Honâ€™ble Court. It is most respectfully submitted that while rendering its judgment dated 20.03.2018, this Hon'ble Court has failed to suitable / appropriately appreciate certain facts and settled principles of law.
(c) The objective of the "PoA Act, 1989" is enshrined in its preamble which states: â€śAn Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to, provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.â€ť
(d) Section 18 of the PoA Act is the backbone of the Act as it enforces an inherent deterrence and instills sense of protection amongst members of SCs and STs. Any dilution thereof would shake the very objective of mechanism to prevent offences of atrocities.
The petition ends by saying that the Supreme Court should review its Judgment dated March 20, 2018 and list this review petition for hearing and pass any other order(s) as it may deem fit.