The additional director general of police, Rajasthan (ADG, civil rights) R.P. Mehrda issued a circular on May 29, 2020 under the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act 1989. Primarily, the circular says that a person who is an accused under the Act should not be allowed the benefit of section 41A of the Code of Criminal Procedure (CrPC). It declares that giving the benefit of section 41A is contrary to the Act and defeats its very purpose.
The fundamental reason for issuing the circular is that it has become a common practice in Rajasthan that the accused under the Act are not arrested by applying section 41A, whereas due compliance of the section does not leave much room for not arresting an accused.
After the circular was issued, Samta Andolan Samiti (an NGO) wrote a letter to the chief minister requesting strict action against Mehrda. The organisation also filed a public interest litigation (PIL) seeking cancellation of the circular.
The present article seeks to examine the lawfulness of the circular.
Applicability of Sections 41 and 41A
According to Part II, Schedule I, of the CrPC, the offences punishable under the Act are cognisable (that is, police may arrest without warrant) and non-bailable also. In such a case, the police may arrest the accused in accordance with section 41.
A careful reading of the conditions mentioned in section 41 reveals that the possibility of non-arrest of an accused under the Act is rare, provided the police officer acts fairly. On the other hand, section 41A says that, where the arrest of a person is not required under section 41(1), the police officer shall issue a notice directing the accused to appear before him, instead of arresting.
Thus, section 41A may apply only if all the conditions requiring arrest under section 41 are absent. Therefore, giving the benefit of section 41A to an accused under the Act must be an exception, not a general rule. Despite the exceptional nature of section 41A, the police in Rajasthan frequently invokes the same because of the caste prejudices.
Therefore, by preventing the application of section 41A, the impugned circular seeks to ensure sincere and due compliance of section 41 CrPC by the police.
The main logic that is often placed in support of section 41A is the apprehension of false cases. However, in such a scenario, the police may submit a final report (negative) after investigation.
How application of section 41A is problematic
When the police do not arrest a person accused under the Act, it is highly probable that the accused may intimidate or harm the victims or witnesses, and thereby, hamper the administration of justice. As the upper caste people enjoy a relatively better socio-economic status, it becomes easier for an accused to abuse the power. Such incidents are frequently reported and it is contrary to some of the provisions of the Act also.
For example, to ensure the protection of the victims and witnesses, section 15A of the Act confers upon them comprehensive rights and imposes obligations on the state for their protection. Section 18 states that anticipatory bail shall not be allowed to a person accused under the Act. Therefore, the non-arrest of a person accused under an Act which bars anticipatory bail makes a mockery of the provision.
Similarly, section 41A contradicts and weakens section 21 of the Act, which compels the state government to take necessary measures for the effective implementation of the Act. Thus, giving an accused the benefit of section 41A renders these provisions ineffective.
This is why the impugned circular directs not to allow the benefit of section 41A. The circular was passed in good faith, and, therefore, it is protected under section 22 of the Act. The circular does not violate Article 21 of the constitution, because it is a “just, fair and reasonable” law, the necessary qualifications of a law depriving a person of his life and personal liberty as laid down in the Maneka Gandhi judgment.
To what extent provisions of the Code may apply to the matters under the Act
In the context of arrest, section 18A(1)(b) of the Act says that “… no procedure other than that provided under this Act or the CrPC shall apply.” This provision is, however, restrictive and negative in nature. It bars the application of any other provision, and, at the same time, does not intend to allow the provisions of the code to apply at any cost and with their full force.
The negative provision indicates that the procedure under the CrPC shall apply only to the extent that they do not adversely affect the provisions of the Act, otherwise the intention behind enacting a severe law shall be defeated.
Intention of legislature and purpose of the Act
The Statement of Objects and Reasons appended to the Bill (now the Act) says:
“… They (SCs and STs) are denied a number of civil rights and are subjected to various offences, indignities, humiliation and harassment. They have been, in several brutal instances, deprived of their life and property. Serious atrocities were committed against them for various historical, social and economic reasons.”
Therefore, the Act is a remedial statute in the sense that it seeks to safeguard the civil rights and dignity of the members of SCs and STs and protect the victims and witnesses. It does so by providing for stringent provisions including the following:
Section 3 (comprehensive list of offences and punishment, extending to imprisonment for life and death sentence also, in some cases), section 4 (punishment for neglect of duties by public servants under the Act), section 7 (forfeiture of property in addition to the punishment under section 3), sections 10 and 11 (removal of person likely to commit offence), section 16 (imposition of collective fine), section 18 (no anticipatory bail), section 18A(1)(b) (no approval required for the arrest), and section 19 (no release on probation).
The legislature provided for the strict provisions because these classes of people have been historically subjected to inhuman acts with impunity, and the same is continuing unabated till today.
Interpretation of inconsistent provisions
The wholesale application of section 41A not only discards section 41 of the CrPC but also contradicts with the provisions of the Act. To resolve the conflict between section 41A and the Act, the applicable principle is: ‘in case of inconsistency between special and general law, the former shall prevail’. The same is reflected under sections 5 of the CrPC and 20 of the Act.
The decision in Prasad Kurien & Ors v. K. J. Augustin & Ors that a general rule which has come in the later point of time will prevail over the special rules, does not apply here. This is because, first, section 41A is inconsistent with the Act. Second, section 18A(1)(b) of the Act, a provision of special law, was inserted after the addition of section 41A to the CrPC, a general law. Third, it is section 18A(1)(b) due to which some provisions of the CrPC may apply to the cases under the Act, however, it never intended to permit full-fledged application of the CrPC contrary to the Act, especially contrary to the stringent provisions introduced by the amendments made in the year 2016 and 2018.
In addition to the above, it is an established principle of interpretation that a statute is always to be read as a whole so that effect may be given to the intention of the legislature. At the same time, it is also noteworthy that the dominant character of the statute is remedial, rather than penal. Therefore, the Act is to be liberally interpreted in favour of victims.
Thus, section 41A of the CrPC defeats the very intention of the legislature and purpose of the Act. The impugned circular preventing the application of section 41A does not make the arrest arbitrary and mandatory. Rather, it seeks due compliance of the conditions under section 41 of the CrPC, so that the objectives of the Act may be fulfilled. It strikes at the root of the prevalent dominance of the so-called upper caste in Rajasthan and the consequent abuse of it.
The circular becomes more important in the light of the incessantly growing number of the complaints of atrocities reported. According to the Rajasthan Police data, in 2019 the number of registered cases of atrocities was 8,591, the highest in the last ten years. The number was also 50% higher than the 2018 data. The data published by the National Crime Records Bureau also reveal a rise in the offences against the members of SCs and STs. By the end of 2018, a total of 1,72,794 cases of atrocities were pending before Indian courts. These data, of course, do not include thousands of the cases that are not registered by the police or not reported due to fear or intimidation exercised by the so-called upper caste people. Therefore, the caste-based atrocities must be dealt with strictly.
Kailash Jeenger teaches at the Faculty of Law, University of Delhi.