New Delhi: The Supreme Court recently observed that the various protections granted to citizens by the fundamental rights enshrined in the constitution are only available to law-abiding individuals.
The observation was made by a bench of Justices Dinesh Maheshwari and Aniruddha Bose while hearing the case of an accused charged under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA).
The MCOCA is a stringent anti-gangster law in the state which places restrictions on an accused’s access to fundamental rights which they would otherwise have access to if they had been charged under the Indian Penal Code (IPC).
“Any claim towards fundamental rights cannot be justifiably made without the person concerned himself adhering to and submitting to the process of law,” the Times of India quoted the bench as saying.
The accused in this case had moved the top court, appealing an order of the Nagpur bench of the Bombay high court directing the additional director general of police, Nagpur City, to invoke provisions of the MCOCA against the accused and other persons.
The high court had found that the accused and others had been using violence and making threats to other people for either monetary gain or to get ahead in the crime world.
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Before the Supreme Court, the accused had challenged said invocation of the MCOCA, arguing that the law curtailed his fundamental rights, many of which would still be available to him if he had been charged under the IPC.
In response, the bench, in its order, noted, “…we have no hesitation in making it clear that any person who is declared to be an absconder and remains out of reach of the investigating agency and thereby stands directly in conflict with the law, ordinarily, deserved no concession or indulgence,” according to the ToI report.
The bench elucidated its order through an example. It said that any ordinary accused has the right to move any court to seek anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC). However, the bench noted that for any individual who is “absconding” and is deemed to be a “proclaimed offender”, the grant of bail under CrPC Section 438 is out of the question.
Under Section 82 of the CrPC, if a court has reason to believe that an accused is absconding or concealing themselves so that the warrant against them cannot be executed, the court may issue a written proclamation demanding that the accused appear at a particular time and place within a period of 30 days. Such a person is deemed a ‘proclaimed offender’.
The court further stated that its observations regarding Section 438 of the CrPC apply “with more vigour” to the apex court’s extraordinary jurisdiction under Article 136 of the constitution. Article 136 deals with the Supreme Court’s discretionary power to grant special leave to appeal any order passed by a subordinate court or tribunal in the country.
“The submission on behalf of the appellant for consideration of his case because of application of stringent provisions impinging on his fundamental rights does not take away the impact of the blameworthy conduct of the appellant,” the newspaper quoted the court order as saying.
With regards to this “blameworthy conduct”, the bench went through the accused’s crime chart and noted that it left “nothing to doubt” with regards to the accused’s involvement in crimes and unlawful activities through which the accused sought to gain “pecuniary advantages” or supremacy leading to unwarranted advantages.