Kashinath Mahajan, the Protest, and the Review

A judgment that added three conditions to a statute, the protest that followed, and the review that recalled it eighteen months later.

In one line: on 20 March 2018 the Supreme Court held there is no absolute bar on anticipatory bail under the Atrocities Act and directed that no arrest be made without approval and that a preliminary enquiry may be held; Parliament reversed all of it by the Amendment Act of 2018; and on 1 October 2019 the Court itself recalled the directions on review.

The case that produced it

Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454, decided on 20 March 2018 by Goel and Lalit JJ.

The facts are worth giving because they are unusual and they shaped the judgment. Adverse remarks were recorded against a storekeeper by two officers of the college of pharmacy where he was employed. He sought sanction to prosecute them under the Atrocities Act. The appellant, the Director of Technical Education, dealt with the request and declined sanction. The storekeeper then complained against the appellant himself under the Act. A first information report was registered against him and the High Court refused to quash it.

So the person before the Court was a senior official prosecuted for refusing a sanction. The Court quashed the proceedings against him as a clear abuse of process, which nobody has criticised. What followed the quashing is the controversy.

The five conclusions

Paragraph 83, and a student should be able to give all five.

One. The proceedings in the case were a clear abuse of the process of court and were quashed.

Two. There is no absolute bar against the grant of anticipatory bail in cases under the Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. The Court approved the view of the Gujarat High Court in two decisions and clarified two of its own.

Three. In view of the acknowledged abuse of the law of arrest in cases under the Act, the arrest of a public servant could only be after approval of the appointing authority, and of a non-public servant after approval by the Senior Superintendent of Police, which might be granted in appropriate cases if considered necessary for reasons recorded; and those reasons must be scrutinised by the Magistrate before permitting further detention.

Four. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the Deputy Superintendent of Police to find out whether the allegations make out a case under the Act and are not frivolous or motivated.

Five. Violation of directions three and four would be actionable by disciplinary action as well as contempt.