This Criminal Petition is filed by the petitioner-de facto complainant, under Section 439 (2) Cr.P.C. (for short 'the Code') to cancel the anticipatory bail order, dated 25-11-2008, in Crl.M.P.No.180 of 2008 in Cr.No.164 of 2008 of Balaji Nagar Police Station, Nellore, granted by the Special Judge for Trial of Offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act')-cum-V Additional District and Sessions Judge, Nellore.

2. The learned Special Judge passed the following order:

"Upon considering the contentions of both the sides and on perusal of the record, there are civil disputes between the de facto complainant and accused family. On perusal of C.D., the prosecution already examined L.Ws. 1 to 5 and recoded their statements. In view of the completion of substantial investigation and the petitioner being house wife, she is to be released on bail in the event of her arrest.

In the result, the petitioner is directed to surrender before learned V A.J.F.C.M. Nellore within one week from the date of this order and on such surrender, the learned Magistrate is directed to release the petitioner on bail on her executing a bond for Rs.10,000/- with two sureties for a like sum each to the satisfaction of the learned Magistrate."

3. Learned counsel appearing for the petitioner contended that in view of bar under Section 18 of the Act, anticipatory bail cannot be granted and Section 438 of the Code does not contemplate to give such a direction and hence, he prays to set aside the impugned order.

4. On the other hand, learned senior counsel appearing for the 2nd respondent contended that as there is no material prima facie suspecting the accused having committed an offence punishable under Section 3 (1)(x) of the Act, the bar under Section 18 of the Act does not come into play and therefore, the trial Court rightly granted anticipatory bail to the 2nd respondent herein on her surrender.

5. There cannot be any dispute that Section 439 of the Code comes into operation only when a person is in custody, whereas anticipatory bail is granted in anticipation of arrest in non-bailable case. Section 437 of the Code deals with the power of Courts other than High Court or Court of Sessions in the matter of granting or refusing bail in non-bailable offence. Section 437 of the Code is concerned with the Court of the Magistrate, High Court and Court of Sessions being expressly excluded. Whereas Section 438 of the Code has been conferred only on the High Court and Court of Sessions for directing a person on bail previous to his arrest, what is commonly known as anticipatory bail, imposing such conditions as the Court thinks fit including the conditions laid down in cls. (i),(ii),(iii) and (iv) of sub-section (2)

6. Sub-section (1) of Section 439 of the Code confers power on the High Court or Court of Sessions, (a) to grant bail to a person in any case without condition or with condition in certain specified offences and subject to one procedural limitation imposed by the proviso in respect of certain specified offences, and (b) to set aside or modify any condition imposed by a Magistrate while granting bail. Sub-section (2) gives power to the High Court or Court of Sessions to cause any person who has been admitted to bail by itself or by any criminal court under this chapter to be re-arrested and committed to custody.

7. The powers of the High Court or Court of Sessions under Section 439 of the Code are considerably wider than the powers of the Magistrate in Section 437 of the Code, for the reason that the limitation in Section 437 of the Code and the distinction drawn between non-bailable offences punishable with death or life imprisonment and other non-bailable offences with lesser penalty are non- existent in Section 439 of the Code; nor is there the condition that bail shall be refused if there appear reasonable grounds for believing that the accused has committed an offenc