IMPORTANT POINT
Anticipatory bail – Bar under Section 18 and (2) of Section 18A of SC/St Act, 1989 will not apply if complaint does not make out a prima facie case for applicability of provisions of 1989 Act.

JUDGMENT

Bibhas Ranjan De, J.—We are dealing with an application under Section 438 Cr.P.C in connection with Panskura Police Station case no.556 of 2021 dated 18.11.2021 under Sections 448/423/325/354/427/506/34 of Indian Penal Code read with section 3 (i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act),1989 (herein after referred to as 1989 Act), where petitioners have sought anticipatory bail.

2. According to First Information Report (FIR), on 18.11.2021 one Mangali Hansda had been to Panskura Police station and lodged a written complaint stating inter alia that on 31.10.2021 at about 12 at night, the petitioners came in front of her house and started hitting on the tile shed room by ‘lathi’. As a result of which some tiles had been broken. She had raised her voice but the petitioners started abusing her in filthy languages towards her caste. She had been assaulted by fist blows and also by ‘lathi’ and she became undressed and she was dragged through the road. Local people had rescued them. Petitioners had also threatened to set her house on fire. On receipt of that complaint the instant case had been initiated.

3. Mr. Murshed, Ld. Counsel appearing on behalf of the petitioners has submitted that there are long standing disputes between the parties and several litigants which are pending between the parties. And for that reason, petitioners had been falsely implicated in this case with mala fide intention. In support of his contention, he has relied on several documents showing land dispute between the parties.

4. Mr. Murshed has relied on the following judgements:-

(a) (2018) SCC 454 Bombay (Dr. Subhash Kasinath Mahajan vs State of Maharashtra & Arm.)

(b) (2019) SCC online 1279 Bombay (Salim Abdul Shaikh vs. State of Maharashtra)

(c) (2020) 4 Supreme Court Cases 761 (Union of India vs. State of Maharashtra & Ors.)

5. Mr. Murshed has further contended that the Hon’ble Supreme Court observed in aforementioned cases that if the FIR does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by sections 18 and 18 A (i) shall not apply.

6. Per contra, Mr. Banerjee, appearing on behalf of the State has opposed opposes the prayer for bail and submitted that this Court has no jurisdiction to hear application under section 438 within the meaning of provisions of sections 18 and 18A of the 1989 Act. He has referred to the case diary and submits that there are statements under Section 161 Cr.P.C made by the neighbors’ who witnessed the incident. And accordingly he submitted that prima facie offence under section 3 of the 1989 Act, has been made out.

7. In support of his contention Mr. Banerjee has relied upon the following cases :

(a) (2021) 1 SCC 733 (Rahna jalal vs. State of Kerala & Anr.)

(b) (2020) 4 SCC 727 (Prathvi Raj Chauhan vs. Union of India & Ors.)

8. At the outset, we would like to recall the provisions of Section 18 and 18 A of the 1989 Act, 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 this Act.

[18-A. No enquiry or approval required.-(1) for the purposes of this Act,-

(a) Preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) The investigation officer shall not require approval for the arrest, if necessary, of any person,

Again whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.]”

9. In Subhash Kasinath Mahajan’s case (supra), the Hon’ble Apex Court has observed that:

“There is no absolute b