IMPORTANT POINT
Section 18 of the SC & ST Act creates. a specific bar in the grant of anticipatory bail, and so when a person is accused of an offence registered under the Act no court shall entertain an application for anticipatory bail from him unless it is satisfied prima facie that such an offence has not been made out.

JUDGMENT

S.S. Satheesachandran, J.—A question of significance has arisen in the above application moved for anticipatory bail under Section 438 of Code of Criminal Procedure, for short the Code.

2. Petitioners (A1 and A2), two among the accused in a crime under investigation, have moved the application seeking pre arrest bail. The above crime was registered for various offences under the Penal Code and also for an offence of atrocity punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, for short the Act. Whether the interdiction imposed under Section 18 of the above Act bar the entertaining of present application filed under section 438 of the Code, is the question to be considered and resolved.

3. Petitioners, both of them, are not members of scheduled caste and scheduled tribe, and de facto complainant is stated to be a member of scheduled caste. The accused, five in number, naming three of them (A 1 to A3) and the rest identifiable by sight, set fire to a shed situate in the property of de facto complainant, after pouring petrol over that structure. Occurrence allegedly took place at 11 p.m. on 13.1.2013 is the allegation. De facto complainant with members of her family intervened to prevent the accused, but, they were wrongfully restrained and abused calling their caste name, is the further allegation. Crime registered for offences punishable under Sections 143, 147,341,435, 506(i) read with Section 149 IPC and Section 3(l)(x) of the Act is presently under investigation.

4. An application for impleadment was filed by de facto complainant seeking permission for hearing her also. That application was allowed ordering her impleadment as additional third respondent.

5. I heard learned counsel for petitioner, learned counsel for additional third respondent and also learned Public Prosecutor.

6. Relying on number of judicial pronouncements learned counsel for petitioners contended that the bar under section 18 of the Act is not absolute and an accused proceeded for an offence of atrocity under the Act can maintain an application for anticipatory bail showing that no such offence on the allegations raised is disclosed in the case. Learned counsel has relied on K. Mallesham v. State of A.P.1; Om Parkash Sharma v. Union Territory Chandigarh2; Mukesh Kumar Saini and others v. State (Delhi Administration)3; Chikkappa and others v. State of Karnataka4; N.B. Gungarakoppa and others v. State of Karnataka5; Shyam Singh & another v. State of M.P.6; Ramasamy and another v. State by Inspector of Police7; Bhupendra Das Vaishnava and another v. State of Chhattisgarh8, to contend that entertaining of an application under section 438 of the Code is not totally barred by section 18 of the Act where an offence of atrocity is included alone or with other penal offences, and, the court has to lift the veil to ascertain and form a conclusion whether the accusation prima facie constitute an offence of atrocity under the Act. Allegations stated in the first information statement of de facto complainant, according to counsel, impute only that accused persons abused the de facto complainant and members of her family with caste name, but do not show that it was done ‘in public view.’ To constitute an offence of atrocity under Section 3(l)(x) of the Act, learned counsel contends that intentional insult or intimidation with intent to humiliate a member of a scheduled caste or scheduled tribe at a place within public view has to be made out. De facto complainant and members of her family were called by their caste name, that alone, was her case to allege an ‘atrocity’, which by itself does not satisfy the essential ingredient under Section 3(1)(x) of the Act, is the submission of counsel to urge that an application for anticipatory bail by petitioners (A1 and A2)is not barred by Section 18 of the above Act. Relying on some annexures produced with the petition, learned counsel contended that the case ha