VINOD DUA versus UNION OF INDIA & ORS.

37. According to the respondents, apart from the offences spelt out in the FIR, certain other offences are also made out. The instant case, therefore, has to be seen from both the perspectives, namely whether any of the offences as stated in the FIR and whether those referred to in the submissions of the respondents, are made out or not.

38. Leaving aside two incorrect statements made in the FIR which were dealt with in paragraph 27 hereinabove, the following assertions from the talk show are relied upon to say that the offences as alleged are made out: – “i) Our biggest failure has been that we do not have enough facilities to carry out testing. 58 State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335 ii) Till now we do not have any information how many (PPE suits, N95 masks and masks of 3 ply) we have and how many will become available by when. iii) The Ventilators needed in other countries and in India, respiratory devices and sanitisers were being exported till 24.3.2020 instead of keeping these for use in our country. iv) That supply chains got disrupted due to blockage of roads and now it is being heard that transportation of essential goods has been allowed. v) It is not difficult to imagine that when the supply chains have been closed, when the shops are closed, some people had gone to the extent of fearing food riots which have not happened in our country could happen. vi) When people started returning from Mumbai …. That should have been a big signal for the Government about the effect the complete lockdown in the country can bring about, but no lessons were learnt.”

39. We now consider these statements. A) It is common knowledge that the countries all over the world found themselves wanting in terms of infrastructure and facilities to cope up with the effects of Covid-19 Pandemic. Considering the size of the population of this country, the testing facilities to gauge and check the spread and effect of the Pandemic, at least in the initial stages of the surge, were not exactly adequate. If in that light, the petitioner made any comments about testing facilities or PPE Suits, N-95 masks and masks of 3 ply, those comments in first two statements, cannot be anything other than appraisal of the situation then obtaining. It was not even the case of the respondents that these two statements were factually incorrect. B) With regard to the third statement, the contention of the respondents was that the ban on export was imposed on 19.03.2020 and VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] the said statement was therefore not quite correct. It was also submitted that the Petitioner produced no evidence of actual exports before the ban was imposed on 19.03.2020 and that there were no exports immediately proceeding the imposition of ban. C) The effect of Nation-wide lockdown which came into effect from the midnight intervening 24.03.2020 and 25.03.2020, according to the Petitioner, resulted in disruption of supply chains due to blockage of roads. It was the submission of the respondents that by Consolidated Guidelines issued on 28.03.2020 (which was stated to be an order under Section 188 of the IPC3), adequate steps were directed to be taken to ensure that there was no disruption in supply of essential goods. It must be stated that the fourth statement did acknowledge that the transportation of essential goods was being allowed and, in that sense, it was more or less correct depiction of the state of affairs then prevailing. D) The emphasis to a great extent, were, however, put on the fifth and the sixth statements and it was strongly contended that said statements not only gave factually incorrect information but amounted to incite the general public and that it was because of such incorrect information, the movement of migrant workers had begun. On the other hand, reliance was placed by the petitioner on the interview of former Chief Statistician reported on 28.03.2020 that if food requirements of migrant workers were not fulfilled amid countrywide lockdown, food riots could be a real possibility. It was submitted that by the time the talk show was uploaded, the movement of migrant workers had already started and was at the peak.

40. It may be relevant to note here that Writ Petition (C) No.468 of 2020 (Alakh Alok Srivastava v. Union of India etc.) and connected petition59, filed on 29.03.2020 by two Advocates, sought to highlight the plight of migrant workers. These matters came up on 31.03.2020 before this Court when it was observed:- “In the instant writ petitions, we are concerned about the migrant labourers who have started leaving their places of work for their home villages/towns located at distant places. For example, thousands of migrant labourers left Delhi to reach their homes in the States Uttar Pradesh and Bihar, by walking on the highways. 59 Writ Petition (C) No.469 of 2020 (Rashmi Bansal v. Union of India) We are informed that the labourers who are unemployed due to lock down were apprehensive about their survival. Panic was created by some fake news that the lock down would last for more than three months. During the course of hearing, the Solicitor General of India made a statement that the information received by the Control Room today at 2.30 A.M. showed that 21,064 relief camps have been set up by various State Governments/Union Territories where the migrant labourers have been shifted and they are being provided with basic amenities like food, medicines, drinking water, etc. According to the Status Report, 6,66,291 persons have been provided shelters and 22,88,279 persons have been provided food. The Solicitor General of India has also referred to the Status Report to make a submission that the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media. While informing this Court about the steps taken by the Government of India to ensure that the migrant labourers are being shifted to nearby shelters/relief camps from place they were found to be walking and basic amenities being provided to them, the Union of India has sought a direction from this Court to the State Governments and the Union Territories to implement the directions issued by the Central Government. A further direction was sought to prevent fake and inaccurate reporting whether intended or not, either by electronic print or social medial which will cause panic in the society. The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months. Such panic driven migration has caused untold suffering to those who believed and acted on such news. In fact, some have lost their lives in the VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] process. It is therefore not possible for us to overlook this menace of fake news either by electronic, print or social media. Section 54 of the Disaster Management Act, 2005 provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such person shall be punished with imprisonment which may extend to one year or with fine. Disobedience to an order promulgated by a public servant would result in punishment under section 188 of the Indian Penal Code. An advisory which is in the nature of an order made by the public authority attracts section 188 of the Indian Penal Code. We trust and expect that all concerned viz., State Governments, Public Authorities and Citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety. In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.”

41. The developments referred to in the aforementioned Order show that the movement of migrant workers back to their hometown or villages had posed an alarming situation. The writ petitions did bring out those issues, in response to which the concern shown by the Government and the steps undertaken by the authorities were placed on record. This Court suggested that a daily bulletin by the Government of India be made active so that correct and precise information was made available to the general public and the exodus of migrant workers could thus be checked. However, the Order also shows the magnitude of the problem which required about 6,66,291 persons to be provided shelter and 22,88,279 persons to be provided food.

42. What was prevailing on 30.03.2020 was therefore clear and migrant workers in huge numbers were moving towards their hometowns/ villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en- route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities. If the petitioner in his talk show uploaded on 30.03.2020, that is even before the matter was taken up by this Court, made certain assertions in his 5th and 6th statement, he would be within his rights to say that as a Journalist he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems. It cannot be said that the petitioner was spreading any false information or rumours. It is not the case of the respondents that the migrant workers started moving towards their hometowns/villages purely as a result of the statements made by the petitioner. Such movement of migrant workers had begun long before. In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots. The situation was definitely alarming around 30.03.2020 and as a journalist if the petitioner showed some concern, could it be said that he committed offences as alleged.

43. The Principles culled out in paragraph 33 hereinabove from the decision of Court in Kedar Nath Singh2 show that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC3 must step in. In our view, the statements by the petitioner as mentioned hereinabove, if read in the light of the principles emanating from the decision in Kedar Nath Singh2 and against the backdrop of the circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of this Court in Kedar Nath Singh2. It may be that certain factual details in the 3rd statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh2.

44. We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.

45. The other offending provision referred to in the FIR is Section 501 of the IPC3 which is printing or engraving a matter which is defamatory to any person. As a matter of fact, the cognizance with respect to an offence punishable under Chapter XXI of the IPC3 (Section 501 of the IPC3 is part of said Chapter) can be taken by a Court only upon a complaint made by the person aggrieved. Without going into such technicalities, in our view, there is nothing defamatory in the statements made by the petitioner. Further, the statements of the petitioner would be covered by the second and third exceptions to Section 499 of the IPC3. In some of the cases decided by this Court, for example, in Jawaharlal Darda and Others vs. Manoharrao Ganpatrao Kapsikar and Another60, Rajendra Kumar Sitaram Pande and Others vs. Uttam and Another61, Vivek Goenka and Others vs. Y.R. Patil62, and S. Khushboo vs. Kanniammal and Another63, relying on exceptions to Section 499 of the IPC3, the criminal proceeding initiated against the accused were quashed. Thus, the instant proceedings, in so far as Section 501 IPC3 is concerned, also deserve to be quashed.

46. The other provision referred to in the FIR was Section 268 of the IPC3 which is nothing but the definition of “Public Nuisance” and is not a penal provision in itself which prescribes any punishment. It was 60 (1998) 4 SCC 112 61 (1999) 3 SCC 134 62 (2000) 9 SCC 87 63 (2010) 5 SCC 600 also not the case of the respondent that any penal provision involving element of “Public Nuisance” was attracted in the instant case.

47. Thus, all the offences set out in the FIR, in our considered view, are not made out at all.

48. We now turn to the case with regard to the offences which were not spelt out in the FIR. It was contended by the respondents that in addition to the offences specifically set out in the FIR, the petitioner would also be guilty of the offences punishable under Sections 52 and 54 of the DM Act1 and Section 188 of the IPC3. According to the respondents, the statements made by the petitioner during the Talk Show amounted to circulating a false alarm and would therefore be covered by Section 54 of the DM Act1; and that the petitioner would also be guilty of having violated communications dated 24.3.2020 and 28.3.2020 (set out earlier in paragraph 14) and thereby committed offences under Section 188 of the IPC3.

49. The response of Mr. Vikas Singh, learned Senior Advocate for the petitioner was that by virtue of Section 6064 of the DM Act1, the offences punishable under the provisions of the DM Act1 could be taken cognizance of only upon a complaint being made by the certain designated officials or functionaries. Similarly, in respect of offence under Section 188 of the IPC3, by virtue of Section 195 of the Code, cognizance could be taken only upon a complaint in writing made by the concerned public servant whose orders were allegedly violated or by someone who was administratively superior to such public servant. These statutory requirements having not been satisfied, the submission that the offences punishable under the DM Act1 and under Section 188 of the IPC3 were made out, was required to be rejected. Reliance was placed by him on the decisions of this Court in Daulat Ram v. State of Punjab65 and in C. Muniappan and Others v. State of Tamil Nadu66 as well as cases referred to in C. Muniappan66. 64 60. Cognizance of offences.—No court shall take cognizance of an offence under this Act except on a complaint made by— (a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or (b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid 65 AIR 1962 SC 1206 66 (2010) 9 SCC 567 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] The other facet of the submission was that even on merits, the statements made by the petitioner in his Talk Show did not satisfy the requirements of both said statutory provisions and therefore the petitioner was entitled to the relief prayed for.

50. In reply, Mr. S.V. Raju, learned Additional Solicitor General submitted that the injunctions spelt out in Section 60 of the DM Act1 and Section 195 of the Code would come into play only at the stage of cognizance by the Court and as such there would not be any bar to the invocation of these provisions at a stage anterior to the stage of cognizance.

51. We need not go into the technical issue whether the initiation of the proceedings in respect of the offences punishable under DM Act1 and/or under Section 188 of the IPC3 could only be after an appropriate complaint would be made in writing as submitted by the petitioner, as in our considered view, none of these offences as submitted by the respondents get attracted in the instant matter. A) Section 188 of the IPC3 deals with “Disobedience to order duly promulgated by public servant”. If a person, though directed inter alia to abstain from a certain act, disobeys a direction issued by a Public Servant lawfully empowered to promulgate such direction or order, Section 188 of the IPC3 may get attracted. The communications dated 24.3.2020 and 28.3.2020 which have been quoted earlier were pressed into service and it was submitted that said communications which everyone was bound and obliged to follow, were violated by the petitioner. We have gone through these communications and in our view, there was nothing therein which was violated as a result of the Talk Show uploaded by the petitioner. An attempt was then made to rely on the order dated 31.3.20207 to submit that this Court had issued certain directions and expected the media to maintain strong sense of responsibility and ensure that unverified news capable of causing panic was not disseminated. First, the direction was issued on 31.3.2020 i.e. after the episode was uploaded on 30.3.2020 and secondly, we have not found any infirmity or illegality in the statements made by the petitioner, on the basis of which it could be possibly be said that he was attempting to disseminate any news capable of causing panic. Consequently, the provisions of Section 188 of the IPC3 would not get attracted at all. B) Section 52 of the DM Act1 deals with the lodging of a false claim by a person for obtaining any relief, assistance, etc., which provision has nothing to do with the present fact situation. Section 54 deals with cases where a person makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. We have already held that the statements made by the petitioner were within the limits prescribed by the decision of this Court in Kedar Nath Singh2 and that the statements were without any intent to incite people for creating public disorder. It was not even suggested that as a result of statements made by the petitioner any situation of panic had resulted in any part of the country.

52. In the circumstances, without going into the technicalities whether the initiation of the proceedings could only be through a complaint filed in conformity with Section 60 of the DM Act1 or Section 195 of the Code, in our view, the provisions of the DM Act1 or Section 188 of the IPC3 are not attracted at all.

53. Consequently, we accept the first prayer made by the petitioner in this Writ Petition and quash FIR No.0053 dated 6.5.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh and any proceedings arising therefrom. We must however clarify that the issues concerning ownership of HW News which had aired the talk show or the nature and effect of violation, if any, of the Norms of Journalistic conduct framed by the Press Council of India, have not been gone into by us as they do not strictly are of any concern for determining first prayer made in the writ petition.

54. We now come to the second prayer made in the writ petition, in support of which reliance was placed by the petitioner on the decisions of this Court in Jacob Mathew4 and Lalita Kumari5. In Jacob Mathew4, a Bench of three Judges of this Court issued certain guidelines with respect to the prosecution of medical professionals. “Guidelines — Re: prosecuting medical professionals 50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards. 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam67 test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for 67 Balam vs. Friern Hospital Management Committee: (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD) furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” (Emphasis supplied) 55. Before issuing the aforesaid guidelines, this Court considered the illustrations mentioned below Sections 88, 92 and 93 of the IPC3 and some relevant decisions, whereafter conclusions were summed up as under:- “Conclusions summed up 48. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”. (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case67 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.” 56. Bolam’s67 case referred to in conclusion (4) was dealt with in paragraph 20 of the decision as follows:- “20. The water of Bolam67 test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie68 test in the following words: (Con LR p. 79) “From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.” (Charlesworth & Percy, ibid., para 8.04)” 68 (1988) 18 Con LR 1 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] 57. What the decision makes clear is that before a medical professional is prosecuted for negligence in criminal law, some threshold requirements ought to be satisfied, otherwise an unwarranted prosecution may not only result in great prejudice to the concerned medical professional but would also not instill a sense of confidence in the medical professionals for discharging their duties. Considering Section 88 of the IPC3 falling in Chapter titled “General Exceptions” and various illustrations as stated above, adequate protection was found necessary to be extended to medical professionals, whereafter aforestated guidelines were issued by this Court. 58. The Constitution Bench of this Court in Lalita Kumari’s5 was called upon to consider, inter alia, the effect of Section 154 of the IPC3. One of the questions dealt with by the Constitution Bench was whether the police would be required to make any preliminary inquiry before registration of an FIR. Taking note of the decision of this Court in Jacob Mathew4, this Court in Lalita Kumari’s5 case observed: “Exceptions 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. 116. In the context of medical negligence cases, in Jacob Mathew4 , it was held by this Court as under : (SCC p. 35, paras 51-52) “51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam67 test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” 117. In the context of offences relating to corruption, this Court in P. Sirajuddin v. State of Madras69, expressed the need for a preliminary inquiry before proceeding against public servants. 118. Similarly, in CBI v. Tapan Kumar Singh70, this Court has validated a preliminary inquiry prior to registering an FIR only 69 (1970) 1 SCC 595 : 1970 SCC (Cri) 240 70 (2003) 6 SCC 175 : 2003 SCC (Cri) 1305 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] on the ground that at the time the first information is received, the same does not disclose a cognizable offence. 119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.” Thereafter, directions were issued in paragraph 120 of the decision and direction 120.6 was as under: “Conclusion/Directions 120. In view of the aforesaid discussion, we hold: 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” 59. We may now notice the relevant observations in P. Sirajuddin, Etc. vs. State of Madras, Etc.71, which were:- “17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one’s sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant’s rank were brought to the notice of the Chief Minister it was his duty to direct as enquiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti- Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can of taken to an enquiry by officers of this department 71 (1970) 1 SCC 595 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full- scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report. 21. In our view the enquiring officer pursued the investigation with such zeal and vigour that he even enquired into and took down statements as persons who were supposed to have provided the appellant with articles of food worth trifling sums of money long before the launching of the enquiry. The whole course of investigation as disclosed in the affidavits is suggestive of some pre-determination of the guilt of the appellant. The enquiring officer was a high-ranking police officer and it is surprising that simply because he was technically not exercising power under Chapter 14 of the Criminal Procedure Code in that a formal first information report had not been lodged he overlooked or deliberately overstepped the limits of investigation contained in the said chapter. He recorded self-incriminating statements of a number of persons and not only secured their signatures thereto obviously with the idea of pinning them down to those but went to the length of providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded. It was said that the certificates were given after the statements had been signed. It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates. There can be very little doubt that the persons who were given such immunity had made the statements incriminating themselves and the appellant under inducement, threat or promise as mentioned in Section 24 of the Indian Evidence Act.” The statement in paragraph 17 certainly spoke of requirement of a preliminary inquiry before a first information report is lodged against a public servant. 60. Mr. Vikas Singh, learned Senior Advocate for the petitioner strongly relied upon paragraph 120.6 of Lalita Kumari5 to submit that the category of cases in which preliminary inquiry could possibly be insisted upon were detailed by this Court but it was clearly stated that such categorisation was only illustrative and not exhaustive of all conditions which may warrant preliminary enquiry. It was submitted that there was strong similarity between the medical professionals and journalists and the latter were also entitled to certain safeguards and protection; that journalists would also discharge function of educating and altering the public in general and as such they, as a class would also require similar protection. On the other hand, Mr. S.V. Raju, learned Additional Solicitor General relied upon two recent decisions in Union of India v. State of Maharashtra and others72 and in Social Action Forum For Manav Adhikar and another v. Union of India, Ministry of Law and Justice and others73 of this Court rendered by Benches of three Judges where directions similar to those issued in the case of Jacob Mathew4 were not accepted. 61. In Rajesh Sharma and others v. State of Uttar Pradesh and another74 a Bench of two Judges of this Court (to which one of us, Lalit, J. was a party) issued following directions in cases where the offence alleged was one punishable under Section 498-A of the IPC3:- 72 (2020) 4 SCC 761 73 (2018) 10 SCC 443 74 (2018) 10 SCC 472 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] “19. Thus, after careful consideration of the whole issue, we consider it fit to give the following directions: 19.1 In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority. 19.2. The Committees may be constituted out of paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. 19.3. The Committee members will not be called as witnesses. 19.4. Every complaint under Section 498-A received by the police or the Magistrate be referred to and looked into by such Committee. Such Committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. 19.5. Report of such Committee be given to the authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint. 19.6. The Committee may give its brief report about the factual aspects and its opinion in the matter. 19.7. Till report of the Committee is received, no arrest should normally be effected. 19.8. The report may be then considered by the investigating officer or the Magistrate on its own merit. 19.9. Members of the Committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time. 19.10. The members of the Committee may be given such honorarium as may be considered viable. 19.11. It will be open to the District and Sessions Judge to utilise the cost fund wherever considered necessary and proper. 19.12. Complaints under Section 498-A and other connected offences may be investigated only by a designated investigating officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today. 19.13 In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior judicial officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord. 19.14 If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/custody and interest of justice must be carefully weighed. 19.15. In respect of persons ordinarily residing out of India impounding of passports or issuance of red corner notice should not be a routine. 19.16. It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the court to whom all such cases are entrusted. 19.17. Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by videoconferencing without adversely affecting progress of the trial. 19.18. These directions will not apply to the offences involving tangible physical injuries or death.” VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] Direction No.19.4 had thus contemplated referral of every complaint under Section 498A IPC3 to a Committee and it was only after the report of the Committee, arrest if at all, could be effected. In terms of direction 19.12 it was directed that all complaints under Section 499A IPC3 be investigated only by a Designated Investigating Officer of the area. While issuing these directions, this Court had inter alia relied upon the decision in Arnesh Kumar v. State of Bihar75 as well as the decision in Lalita Kumari7. 62. The correctness of the decision in Rajesh Sharma and others72 was questioned before a Bench of three Judges in Social Action Forum For Manav Adhikar and another v. Union of India, Ministry of Law and Justice and others76. This Court in paragraph 33 of its Judgment referred to paragraph 120.6 of the decision in Lalita Kumari5 and thereafter made following observations:- “37. On a perusal of the aforesaid paragraphs, we find that the Court has taken recourse to fair procedure and workability of a provision so that there will be no unfairness and unreasonableness in implementation and for the said purpose, it has taken recourse to the path of interpretation. The core issue is whether the Court in Rajesh Sharma72 could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code. There can be no denial that there has to be just, fair and reasonable working of a provision. The legislature in its wisdom has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar73 are in consonance with the provisions contained in Section 41 CrPC and Section 41- A CrPC. Similarly, the guidelines stated in Joginder Kumar v. State of U.P.77, and D.K. Basu v. State of W.B.78, are within the framework of the Code and the power of 75 (2014) 8 SCC 273 76 (2018) 10 SCC 443 superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy. 38. In Rajesh Sharma72, there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bona fide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh v. State of Punjab79, In the said case, it has been held that: “61. … Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that 77 (1994) 4 SCC 260 78 (1997) 1 SCC 416 79 (2012) 10 SCC 303 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.” 39. Though Rajesh Sharma72 takes note of Gian Singh78, yet it seems to have applied it in a different manner. The seminal issue is whether these directions could have been issued by the process of interpretation. This Court, in furtherance of a fundamental right, has issued directions in the absence of law in certain cases, namely, Lakshmi Kant Pandey v. Union of India80, Vishaka v. State of Rajasthan81 and Common Cause v. Union of India82, and some others. In the obtaining factual matrix, there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a committee and conferment of power on the said committee are erroneous. However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail, would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That 80 (1984) 2 SCC 244 81 (1997) 6 SCC 241 82 (2018) 5 SCC 1 cannot be considered at that stage. Therefore, we do not find anything erroneous in Directions 19.14 and 19.15. So far as Directions 19.16 and 19.17 are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought. 42. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar76, D.K. Basu77, Lalita Kumari5 and Arnesh Kumar73. It will also be appropriate to direct the Director General of Police of each State to ensure that the investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest. 43. In view of the aforesaid premises, the directions contained in paras 19.1 to 19.11 as a whole are not in accord with the statutory framework and the direction issued in para 19.12 shall be read in conjunction with the direction given hereinabove. 44. Direction 19.13 is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh78, shall dispose of the same. 45. As far as Directions 19.14, 19.15, 19.16 and 19.17 are concerned, they shall be governed by what we have stated in para 39. 46. With the aforesaid modifications in the directions issued in Rajesh Sharma73, the writ petitions and criminal appeal stand disposed of. There shall be no order as to costs.” It was thus held that directions 19.1 to 19.11 were not in conformity with the statutory framework, while directions 19.12 to 19.17 were suitably modified. VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] 63. A Bench of two Judges of this Court (to which one of us i.e. Lalit, J. was a party) in its decision in Dr. Subhash Kashinath Mahajan v. State of Maharashtra and another83 issued following directions in connection with prosecutions instituted in relation to the offences punishable under the provisions of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989; (the “Atrocities Act”, or “the 1989 Act”, for short): “79. Our conclusions are as follows: 79.1. Proceedings in the present case are clear abuse of process of court and are quashed. 79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar v. State of Gujarat84, and N.T. Desai v. State of Gujarat85, and clarify the judgments of this Court in State of M.P. v. Ram Kishna Balothia86, and Manju Devi v. Onkarjit Singh Ahluwalia87; 79.3. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention. 79.4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. 79.5. Any violation of Directions 79.3 and 79.4 will be actionable by way of disciplinary action as well as contempt. 79.6. The above directions are prospective.” 83 (2018) 6 SCC 454 84 (1992) 1 Guj LR 405 85 (1997) 2 Guj LR 942 86 (1995) 3 SCC 221 : 1995 SCC (Cri) 439 87 (2017) 13 SCC 439 : (2017) 4 SCC (Cri) 662 During the course of its decision, the Bench had noticed paragraph 120.6 of the decision in Lalita Kumari5 as well as the decision in P. Sirajuddin69. In terms of directions in paragraph 79.3 and 79.4, it was directed that an arrest of a public servant could be effected only after approval of the appointing authority and that of a non-public servant could be effected only after approval by the Special Superintendent of Police; that the reasons for arrest could be scrutinised by the Magistrate for permitting further detention; and that a preliminary enquiry be conducted by the DSP concerned to find out whether the allegations making out a case under the provisions of Atrocities Act were frivolous or motivated. 64. Union of India being aggrieved, filed Review Petition questioning the correctness of the directions issued in Dr. Subhash Kashinath Mahajan82. A Bench of three Judges of this Court considered the matter in Union of India v. State of Maharashtra and others70. Various decisions were noticed by this Court and it was concluded: “In re : Sanction of the appointing authority 59. Concerning public servants, the provisions contained in Section 197 CrPC provide protection by prohibiting cognizance of the offence without the sanction of the appointing authority and the provision cannot be applied at the stage of the arrest. That would run against the spirit of Section 197 CrPC. Section 41 CrPC authorises every police officer to carry out an arrest in case of a cognizable offence and the very definition of a cognizable offence in terms of Section 2(c) CrPC is one for which police officer may arrest without warrant. 60. In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi88. 61. While issuing guidelines mentioned above approval of appointing authority has been made imperative for the arrest of a public servant under the provisions of the Act in case, he is an accused of having committed an offence under the 1989 Act. Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged; it is encroaching on a field which is 88 (2005) 1 SCC 568 : 2005 SCC (Cri) 415 VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the courts. 62. The direction is discriminatory and would cause several legal complications. On what basis the appointing authority would grant permission to arrest a public servant? When the investigation is not complete, how can it determine whether public servant is to be arrested or not? Whether it would be appropriate for appointing authority to look into case diary in a case where its sanction for prosecution may not be required in an offence which has not happened in the discharge of official duty. Approaching appointing authority for approval of arrest of a public servant in every case under the 1989 Act is likely to consume sufficient time. The appointing authority is not supposed to know the ground realities of the offence that has been committed, and arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself. Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of the appointing authority, it is wholly extra-statutory. In case the appointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as there is no provision for grant of anticipatory bail. It would tantamount to taking away functions of court. To decide whether an accused is entitled to bail under Section 438 in case no prima facie case is made out or under Section 439 is the function of the Court. The direction of the appointing authority not to arrest may create conflict with the provisions of the 1989 Act and is without statutory basis. 63. By the guidelines issued, the anomalous situation may crop up in several cases. In case the appointing authority forms a view that as there is no prima facie case the incumbent is not to be arrested, several complications may arise. For the arrest of an offender, may be a public servant, it is not the provision of the general law of CrPC that permission of the appointing authority is necessary. No such statutory protection is provided to a public servant in the matter of arrest under IPC and CrPC as such it would be discriminatory to impose such rider in the cases under the 1989 Act. Only in the case of discharge of official duties, some offence appears to have been committed, in that case, sanction to prosecute may be required and not otherwise. In case the act is outside the purview of the official discharge of duty, no such sanction is required. 64. The appointing authority cannot sit over an FIR in case of cognizable, non-bailable offence and investigation made by the police officer; this function cannot be conferred upon the appointing authority as it is not envisaged either in CrPC or the 1989 Act. Thus, this rider cannot be imposed in respect of the cases under the 1989 Act, may be that provisions of the Act are sometimes misused, exercise of power of approval of arrest by the appointing authority is wholly impermissible, impractical besides it encroaches upon the field reserved for the legislature and is repugnant to the provisions of general law as no such rider is envisaged under the general law. 65. Assuming it is permissible to obtain the permission of the appointing authority to arrest the accused, would be further worsening the position of the members of the Scheduled Castes and Scheduled Tribes. If they are not to be given special protection, they are not to be further put in a disadvantageous position. The implementation of the condition may discourage and desist them even to approach the police and would cast a shadow of doubt on all members of the Scheduled Castes and Scheduled Tribes which cannot be said to be constitutionally envisaged. Other castes can misuse the provisions of law; also, it cannot be said that misuse of law takes place by the provisions of the 1989 Act. In case the direction is permitted to prevail, days are not far away when writ petition may have to be filed to direct the appointing authority to consider whether the accused can be arrested or not and as to the reasons recorded by the appointing authority to permit or deny the arrest. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of the appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged. The 1989 Act delay would be adding to the further plight of the downtrodden class. VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] In re : Approval of arrest by the SSP in the case of a non- public servant 66. Inter alia for the reasons as mentioned earlier, we are of the considered opinion that requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, obviously arrest has to be made. Without doubting bona fides of any officer, it cannot be left at the sweet discretion of the incumbent howsoever high. The approval would mean that it can also be ordered that the person is not to be arrested then how the investigation can be completed when the arrest of an incumbent, is necessary, is not understandable. For an arrest of the accused such a condition of approval of SSP could not have been made a sine qua non, it may delay the matter in the cases under the 1989 Act. In re : Requiring the Magistrate to scrutinise the reasons for permitting further detention 67. As per the guidelines issued by this Court, the public servant can be arrested after approval by the appointing authority and that of a non-public servant after the approval of SSP. The reasons so recorded have to be considered by the Magistrate for permitting further detention. In case of approval has not been granted, this exercise has not been undertaken. When the offence is registered under the 1989 Act, the law should take its course no additional fetters are called for on arrest whether in case of a public servant or non-public servant. Even otherwise, as we have not approved the approval of arrest by appointing authority/SSP, the direction to record reasons and scrutiny by the Magistrate consequently stands nullified. 68. The direction has also been issued that the DSP should conduct a preliminary inquiry to find out whether the allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari5 by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of DSP. The number of DSP as per stand of the Union of India required for such an exercise of preliminary inquiry is not available. The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act, 1989. 70. We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of the Constitution of India. Resultantly, we are of the considered opinion that Directions 79.3 and 79.4 issued by this Court deserve to be and are hereby recalled and consequently we hold that Direction 79.5, also vanishes. The review petitions are allowed to the extent mentioned above.” Paragraph 68 of this decision clearly held that the direction to hold a preliminary inquiry issued in Dr. Subhash Kashinath Mahajan82 was not consistent with the statutory framework while it was held in paragraph 70 that the directions issued by the two Judge Bench amounted to encroachment upon the field reserved for the legislature. 65. The submissions regarding the second prayer in the Writ Petition are required to be considered in the backdrop of these decisions. 66. In Jacob Mathew4, the guidelines were issued after noticing Section 88 of the IPC3 falling in Chapter titled “General Exceptions” as VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.] well as illustrations below Sections 88, 92, and 93 of the IPC3. The direction, “a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness and negligence on the part of the accused doctor” was founded on reasons including the status of a medical professional acknowledged by Section 88 and illustrations as stated above as well as the fact that the investigating officers and the private complainant would not be supposed to be having knowledge about medical science so as to determine whether the act of the accused professional amounted to a rash and negligent act within the domain of criminal law. It is true that the decision in P. Sirajuddin69 did observe that there ought to be a preliminary inquiry before a first information report is registered against a public servant of any status. But today, with the establishment of Vigilance Cells in every Governmental Department or organisation, the preliminary inquiries are not strictly traceable to the direction issued by this Court. As a matter of fact, the accepted norm – be it in the form of CBI Manual or like instruments is to insist on a preliminary inquiry. One can also say that the protection to a public servant is the underlying principle under certain provisions like Section 197 of the Code and as such there is some foundation in statutory provisions. On the other hand, directions (19.1 to 19.11) issued in Rajesh Sharma73, were not found to be in accord with the statutory framework and as such did not meet with the approval of the decision of the larger bench of this Court. Similarly, the directions issued in Dr. Subhash Kashinath Mahajan82 regarding holding of a preliminary inquiry were not found consistent with the statutory framework. The second prayer made in the Writ Petition is asking for the constitution of the Committee completely outside the scope of the statutory framework. Similar such exercise of directing constitution of a Committee was found inconsistent with the statutory framework in the decisions discussed above. We are conscious that the directions issued in Jacob Mathew4 had received approval by a Constitution Bench in Lalita Kumari5, but those guidelines issued in Jacob Mathew4 stand on parameter which are completely distinguishable from the subsequent decisions of three Judge Bench of this Court in Union of India vs. State of Maharashtra and Others70 and in Social Action Forum for manav Adhikar and Another vs. Union of India, Ministry of Law and Justice and Others71. Any relief granted in terms of second prayer would certainly, in our view, amount to encroachment upon the field reserved for the legislature. We have, therefore, no hesitation in rejecting the prayer and dismissing the Writ Petition to that extent. 67. It must however be clarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh2, as every prosecution under Sections 124A and 505 of the IPC3 must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh2. 68. In conclusion: i. We quash FIR No.0053 dated 6.5.2020, registered at Police Station Kumarsain, Distt. Shimla, Himachal Pradesh, against the petitioner; ii. but reject the prayer that no FIR be registered against a person belonging to media with at least 10 years of standing unless cleared by the Committee as suggested. 69. Writ Petition is allowed to the aforesaid extent. Nidhi Jain Writ petition partly allowed. VINOD DUA v. UNION OF INDIA & Ors. [UDAY UMESH LALIT, J.]