P. Surendran vs State By Inspector Of Police

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SLP (CRL.) No. 1832 of 2019

P. SURENDRAN …PETITIONER (S)

VERSUS

STATE BY INSPECTOR OF POLICE …RESPONDENT (S)

ORDER

N. V. RAMANA, J.,

1. This Special Leave Petition has been filed against the

impugned order and judgment dated 02.01.2019, in

Crl.M.P. No. 5697 of 2018 passed by the Learned Court of.

The Principle Sessions Judge of Kancheepuram District at

Chengalpattu, Tamil Nadu and the order of the High Court

Registry, in not numbering the anticipatory bail petition of

the petitioner­accused herein.

Signature Not Verified Digitally signed by SUKHBIR PAUL KAUR Date: 2019.04.05 16:29:11 IST Reason: 1

2. We need to refer to the basic facts necessary for the disposal

of the case at hand. An FIR was filed against the three co­

accused (Murugesan, S. M. Ekambaram and Ramaswamy),

before the PS Pallikaranai, St. Thomas Mount,

Kancheepuram District, Tamil Nadu, being Crime No. 937 of

2017, dated 03.04.2017, under Section 147, 148, 448, 302

and 506 of IPC. It is averred that subsequently Offence

under Section 3(ii) of the Scheduled castes and the

Scheduled Tribes (prevention of atrocities) Act, 1989

[‘SC/ST Act’] was also added. Further it is to be noted that

the Petitioner herein was later arrayed as an accused by the

police. In view of apprehension of arrest, the petitioner filed

an Anticipatory Bail Application being Crl.M.P. No. 5697 of

2018, before the Learned Court of The Principal Sessions

Judge of Kancheepuram at Chengalpattu.

3. The District Principal Judge by an Order dated 02.01.2019,

dismissed the anticipatory bail application of the petitioner.

Aggrieved by the same, petitioner approached the High

Court of Madras seeking anticipatory bail, but the Registry

2 of the High Court refused to number and list the matter

before the court on the following office objection­

“It may be stated how this petition for Anticipatory Bail is maintainable, since the offence is under SC/ST Act”

Even though the petitioner herein replied to the aforesaid

office objection, the High Court Registry rejected numbering

of the petition and dismissed the Anticipatory Bail Petition

on the issue of maintainability under SC/ST Act.

4. Aggrieved by such non­registration, the petitioner is before

this Court on a question of law as to whether the Madras

High Court Registry was wrong, in not numbering the

Anticipatory­Bail Petition and as to whether consequent

dismissal of the same on the issue of maintainability of the

petition impinges on the judicial function of the High Court?

5. In view of the importance of the matter, this Court had

requested the assistance of the Attorney General for India

who acceded our request and assisted this Court.

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6. Learned Attorney General has stated that the stance of the

Registry of the Madras High Court in refusing to number the

anticipatory bail application and not placing it before the

appropriate bench is incorrect. He states that in light of the

subsequent amendment of 2018 to the SC/ST Act,

particularly the inclusion of Section 18A under the SC/ST

Act, appropriate bench has to adjudicate the matter as the

same is a judicial function. Therefore, the registry of the

Madras High Court cannot refuse to number the

anticipatory bail application on the ground of

maintainability.

7. Recently, the Government amended the SC/ST Act, through

The Scheduled Castes and The Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2018 No. 27 of

2018, wherein a new provision being Section 18­A was

inserted, which reads as under­

18A. (1) For the purposes of this Act,—

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any 4 person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) 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.".

(emphasis added)

8. We may note that the aforesaid amendment has been

constitutionally challenged in various writ petitions listed

before a different bench of this Court along with the R.P.

(Crl.) No. 228 of 2018, titled Union of India v. State of

Maharashtra and Others. However, the question before

this Court herein is different, distinct and limited. We are

only concerned with the question whether Registry could

have questioned the maintainability of the Petition.

9. The nature of judicial function is well settled under our legal

system. Judicial function is the duty to act judicially, which

invests with that character. The distinguishing factor which

separates administrative and judicial function is the duty

and authority to act judicially. Judicial function may thus

be defined as the process of considering the proposal,

5 opposition and then arriving at a decision upon the same on

consideration of facts and circumstances according to the

rules of reason and justice. A Constitution Bench of five

judges in Jaswant Sugar Mills Ltd., Meerut vs.

Lakshmichand and Ors., AIR 1963 SC 677, formulated

the following criteria to ascertain whether a decision or an

act is judicial function or not, in the following manner­

(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre­existing legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights; and

(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.

(emphasis added)

The act of numbering a petition is purely administrative.

The objections taken by the Madras High Court Registry on 6 the aspect of maintainability requires judicial application of

mind by utilizing appropriate judicial standard. Moreover,

the wordings of Section 18A of the SC/ST Act itself indicates

at application of judicial mind. In this context, we accept

the statement of the Attorney General, that the

determination in this case is a judicial function and the

High Court Registry could not have rejected the numbering.

10. Therefore, we hold that the High Court Registry could not

have exercised such judicial power to answer the

maintainability of the petition, when the same was in the

realm of the Court. As the power of judicial function cannot

be delegated to the Registry, we cannot sustain the order,

rejecting the numbering/registration of the Petition, by the

Madras High Court Registry. Accordingly, the Madras High

Court Registry is directed to number the petition and place

it before an appropriate bench.

11. Having said so, we make it clear that we have not expressed

any views on the nature of the amendment, the standard of

judicial review and the extent of justiciability under Section

18­A of the SC/ST Act, which is left open for the appropriate

Bench to consider.

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12. Before we part with this case, we note that this Court has

not expressed any views on the merits of the case and the

High Court is requested to consider the matter uninfluenced

by the observations made herein.

13. In view of the discussion, this petition is accordingly

disposed of in the aforesaid terms.

……………………………J. (N. V. Ramana)

……………………………J. (Mohan M. Shatanagoudar)

New Delhi;

March 29, 2019

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