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The top court also strongly disagreed with the Centre’s contention that its March 20 verdict had led to loss of lives in the violence that had broken out later in several states.
The Centre told the top court that its March 20 verdict, laying guidelines putting certain safeguards on the immediate arrest of a person for offences, countermanded the law enacted by the legislature and should thus be stayed and the case referred to a larger bench.
However, a bench of Justices Adarsh Goel and U U Lalit refused to stay the verdict and said various aspects and earlier judgements of the top court were considered before arriving at this conclusion.
“It’s not that the judgement says there shall be no registration of crime. It’s not that accused shall not be arrested. The safeguards were for the purpose that a person should not be readily arrested or an innocent punished because there was no provision of anticipatory bail under the SC/ST Act,” the bench said.
The top court said under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, theoretically a person cannot get anticipatory bail, but soon after his arrest, he can get regular bail even in offences where the punishment is just six months.
“The anticipatory bail provision was not there in laws like TADA and MCOCA, where the offences were supposed to be of greater magnitude. If there is a grave offence, this judgement will not come in the way of arrest,” the bench said.
It clarified that the court has not asked for non-registration of an FIR for the offences under the SC/ST Act, but sought verification before registration of FIR, so that innocents do not get penalised.
However, Attorney General K K Venugopal, appearing for Centre, said after the March 20 verdict, there has been loss of lives in several parts of country and that the order contradicts the existing provisions of SC/ST Act.
“There are separation of powers which is part of the basic structure of the Constitution and the court can only lay down guidelines for disposal of a case but cannot lay guidelines in general in the nature of law, for the whole country,” he said.
The bench disagreed with the submission of the AG and said there were several apex court verdicts by which rules were framed including bringing in the existence of Collegium system for appointment of judges.
Venugopal said that courts can fill up the gap in legislation but cannot lay down the guidelines which are in inconsistent with the law made by the legislation.
The bench, said that it has not added a single new word in the law and just incorporated in its order, what was already existing in the law.
The Attorney General said that the March 20 judgement is in direct contradiction of section 18 of SC/ST Act (anticipatory bail), section 4 of SC/ST Act (lodging of FIR) and section 41 of CrPC (power of arrest).
He said that this judgement can be termed as “judicial activism of the court” in view of a seven-judge verdict of 2002 which dealt with “what amounts to legislation by courts”.
“This is a matter which required to be settled by a larger bench as one other bench has gone into this issue and decided the law. This March 20 judgement has resulted in loss of lives,” Venugopal said and sought stay of the verdict.
The bench rejected the submission and said “No, this judgement cannot be blamed for the loss of lives. We are hundred percent for the protection of rights of SC/ST community. Those who took law into their hands should be punished in accordance with law. Those at fault needs to be punished”.
The bench clarified that as far as section 4 of the SC/ST Act is concerned which deals with lodging of FIR, safeguards were put to avoid false implication of an individual.
“If a DSP rank officer is satisfied with the allegation, he can certainly proceed forward and lodge an FIR against the accused under the Act. Our concern was that without verifying of the allegation no case should be lodged against an innocent,” it said.
The bench said all these were done to avoid harassment of public servants from frivolous complaints and there are several verdicts of the top court in this regard.
The apex court also dismissed a recall application filed by the original applicant B K Gaikwad, who had lodged the FIR in the case.
The hearing remained inconclusive and would continue on May 16.
The Centre had moved the apex court on April 2 seeking review of its judgement by which safeguards were put on the provisions for immediate arrest under the SC/ST Act.
The top court had on April 3 refused to keep the March 20 verdict in abeyance till it decided the Centre’s review petition.
The apex court had on March 20 said that on “several occasions”, innocent citizens were being termed as accused and public servants deterred from performing their duties, which was never the intention of the legislature while enacting the SC/ST Act.
Several states were rocked by wide spread violence and clashes following a ‘Bharat Bandh’ call given by several SC/ST organisations protesting the top court’s March 20 order, that claimed eight lives.