( 1 ) THE learned single Judge of this Court Narayan J. vide order dated 18-1-2002 has referred the following three points to the Division Bench for adjudication :- (1) Whether Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter called "act" for short) is a bar for entertaining the petition under S. 438, Cr. P. C. ? (2) Whether the Courts entertaining the petitions under Section 438, Cr. P. C. can meticulously examine the material on record and attempt to find out a prima facie case under the provisions of the Act at this stage? and (3) Whether only the High Court has got jurisdiction to entertain the petition of this nature filed under Section 438, Cr. P. C. excluding the concurrent jurisdiction of the learned Sessions Judge ? the controversies with regard to the grant of anticipatory bail in relation to offences under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been an issue of serious debate despite the fact that Section 18 of the Act appears to place an embargo on the Courts that the provisions of Section 438 of the Code of Criminal Procedure cannot be invoked in relation to accusations for offences under the Act in question. Since there has been a hotly contested legal debate on the issue, it would be useful to reproduce the provisions of Section 18 of the Act which reads as follows :-"18. Section 438 of the Code not to apply to persons committing an offence under the Act :- Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act. "the circumstances under which the learned single Judge was required to make the reference arose because of the fact that in an earlier decision of this Court namely the case of Chikkappa ILR 2001 Kant 5483 : (2001 AIR Kant HCR 3127) the learned single Judge of this Court Bannjumath J. took the view that it is certainly permissible for the High Court to entertain an application under S. 438, Cr. P. C. for the grant of anticipatory bail to the extent that it was open to the Court to examine as to whether the applicability of the provisions of the Act was justified. In other words, after examining the legal position that has emerged particularly after the Supreme Court decision in State of M. P. v. Ram Krishna Balothia, AIR 1995 SC 1198, that even though the Supreme Court upheld the validity of the provisions it had kept open the question of consideration of anticipatory bail application though the scope was considerably pruned. The learned single Judge has extensively extracted reference to the Supreme Court decision referred to supra as also several other decisions which are set out below :- 1. AIR 1995 SC 1198, State of M. P. v. Ramkrishna; 2. (1998) 1 Crimes 310, Thavam v. State of Tamil Nadu; 3. 1996 Cri LJ 2743 (Orissa), Ramesh Bhanja v. State of Orissa; 4. 1996 Cri LJ 2743 (sic), Pankaj Sutar v. State of Gujarat; 5. (1994) 4 Crimes 562, Rakesh v. State of Rajasthan; 6. AIR 1976 SC 1947, Smt. Nagawwa v. Veeranna; 7. AIR 1982 SC 949, State of West Bengal v. Swapan Kumar Guha; 8. AIR 1977 SC 1489, State of Karnataka v. Muniswamy; 9. AIR 1992 SC 604, State of Haryana v. Bhajanlal; 10. AIR 1998 SC 128, M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate; 11. 2000 Cri LJ 2899, Virendra Singh v. State of Rajasthan; 12. 1987 Cri LJ 272, Baste Subrayalu v. Robert Mariadassou; 13. 1982 Cri LJ 872, Shantabai v. State of Maharashtra; 14. Cr. P. 14458/1995, dated 27-1-1997, Channegowda v. State; 15. (1987) 4 Kant LJ 81, Chandra Poojari v. State;

( 2 ) AFTER an elaborate consideration of the law, the learned single Judge observed that it was certainly open to the High Court to examine the allegations, to examine the facts, to examine the legal provisions and to decide as to whether the provisions of the Atrocities Act would be applicable or not and, in those of the situations wherein the Court came to th

Click Here to Read the rest of this document