JUDGMENT - LODHA R.M., J.:---Heard the learned Counsel for parties.

2. By this application under section 438 of the Criminal Procedure Code, 1973 (for short, the 'Cri.P.C.'), the applicants who are accused in Crime No. 167/95 registered at Police Station, Pulgaon on 4-6-1995, are seeking their enlargement on bail in the event of their arrest. The said crime has been registered at the instance of the Ramesh Waghmare and it is alleged that on the date of incident i.e. 4-6-1995 at about 8.30 p.m. accused/applicant No. 2 Wasudeo abused the complainant who is Scheduled Caste and also assaulted him. The offence is registered by the Police in the Crime No. 167/95 against the accused/applicants under section 324 read with section 34 of the Indian Penal Code and also under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the 'Prevention of Atrocities Act').

3. Apprehending their arrest, the accused/applicants made an application for grant of anticipatory bail before the Additional Sessions Judge, Wardha under section 438 of the Criminal Procedure Code and the said application has been rejected by the Additional Sessions Judge, Wardha as not maintainable.

4. Mr. Choudhari, the learned Counsel for the applicants/accused strenuously urged that the present case is an exceptional case inasmuch as the accusations made in the first information report do not make out an offence under section 3(X) of the Prevention of Atrocities Act and, therefore, there is no bar in entertaining the application filed by the accused/applicants under section 438, Criminal Procedure Code. The learned Counsel for the accused/applicants also submitted that from the reply filed by the State, which obviously is based on the case diary, there is no specific allegation against the accused/applicant No. 1 having abused the complainant and, therefore, no offence under section 3(X) of the Prevention of Atrocities Act is made out against the applicant/accused No. 1. As regards the applicant No. 2, the learned Counsel submits that though in the reply filed by the State, it is alleged that applicant No. 2 abused the complainant by saying "Mahardiya", but since there is no material to show that the said utterance amounted to intentional insulting the complainant, even against the accused/applicant No. 2, no offence under section 3(X) of the Prevention of Atrocities Act is made out prima facie and, therefore, the Additional Sessions Judge seriously erred in rejecting the application as not maintainable. The learned Counsel submitted that out of political rivalry, applicants/accused have been falsely implicated under section 3(X) of the Prevention of Atrocities Act, because so far as offence under section 324 of the Indian Penal Code is concerned, the same is bailable and the accused would have got the bail as a matter of course.

5. On the other hand, the learned Additional Public Prosecutor urged that it is not open to the Court to find out whether any prima facie case is made out under the Prevention of Atrocities Act or not once the case is registered against an accused for an offence punishable under the Prevention of Atrocities Act and section 18 of the said Act comes into operation and provisions of section 438, Criminal Procedure Code cannot be invoked once an offence is registered under the Prevention of Atrocities Act.

6. The first and foremost question, therefore, which requires consideration in this bail application is, whether mere registration of an offence under the Prevention of Atrocities Act bars invocation of section 438, Criminal Procedure Code.

7. Section 18 of the Prevention of Atrocities Act reads as under :---

"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 this Act."

Constitutionality of the said prov

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