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The Calcutta High Court granted anticipatory bail to a journalist accused under section 3(1) (r) (u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The bench of Justices Joymalya Bagchi and Manojit Mandal observed that, despite the incorporation of section 18A into the Act, the Court’s limited jurisdiction to examine the uncontroverted allegations in the FIR to see whether such accusations when taken at their face value reveal the ingredients of such crime is not eliminated.
The FIR was registered against the Publisher of a Bengali newspaper after a complaint filed by a member of the Sabar community alleging that the publication of a news item titled "Mrittu Noi Sabarpallir Chinta Bhat". The news article highlighted the lack of medical facilities and the denial of basic services such as drinking water, housing, lack of job cards and voters cards etc. amongst the members of the community and accused the indifference and the lack of initiative on the part of the administration to provide such facilities.
Amendment Does Not Take Away Court's Limited Jurisdiction
The bench addressed the contention of the public prosecutor that Section 18A, recently inserted, completely eliminates any judicial enquiry related to the "prima facie" case, once F.I.R is registered under the Act. The bench held that operation of section 18A of the Act cannot take away the limited jurisdiction of the Court to examine whether the uncontroverted averments in the F.I.R. disclose the ingredients of any offence under the Act.
"No doubt, a deeper scrutiny with regard to probability or improbability of the truthfulness of the allegations may not be within the domain of the Court under the scheme of the Act of 1989 in view of the exclusionary clause, however, to insist that the Court should shut its eyes and mechanically accept the ipse dixit of a police officer with regard to registration of an FIR under the Act without examining whether uncontroverted allegations disclose ingredients of such offence – a sine qua non for registration of FIR – is not the purpose of the said amendment"
Section 18A Clarificatory Amendment
The court noted that Section 18A has not been incorporated to introduce any higher bar with respect to the applicability of section 438 Cr.P.C. than what was envisaged in section 18 thereof. The court also noted that Section 18 is not repealed. "Sub-section (2) of section 18A appears to be a clarificatory amendment reiterating the statutory bar to the applicability of section 438 Cr.P.C. in cases under the Act notwithstanding directions gives in Dr. Subhash Kashinath Mahajan (supra) relating to holding of preliminary enquiry prior to registration of FIR or obtaining approval from another authority prior to arresting the accused", the bench said.
The contents of the article do not reveal any insult, intimidation, enmity, hatred or ill-will towards the community. The bench added, it is an account of the agonies and miseries suffered by members of the Sabar community who, according to the publisher, are deprived of basic necessities of life. The court held that 'Freedom of speech' is best protected by ensuring 'freedom after speech' of its maker in a democratic polity.
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