SUNIL KUMAR SINHA, J.

( 1 ) THIS is an application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicants, who are apprehending their arrest in connection with Crime No. 133/ 2006, registered at Police Station-Purani Basti, raipur, Distt. Raipur (C. G.) for the offence punishable under Sections 302, 120b read with section 34 1pc and section 3 (2) (v) of the scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act ).

( 2 ) THE brief facts are that on account of some quarrel which took place on 8. 7. 2006, the deceased namely Deepak Raj was assaulted by 4 accused persons namely Dhruw Lal chandrakar, Lokesh Chandrakar, Ravi shankar Chandrakar and Smt. Prem Lata. The assault was made by hands and fists. Deepak died on the way to hospital. The First information Report was lodged by the maternal uncle of the deceased namely Bhupat vir in the concerned Police Station on 8. 7. 2006 at about 18. 30 hours. It is stated in the report (Annexure A-2) that the incident took place at about 16. 00 hours on the said date. The F. I. R. contains the names of the above 4 co-accused persons. During the course investigation, 161 Cr. P. C. statement of mother of deceased namely Em Bai was recorded on 23. 7. 2006 (Annexure A-4 ). In the aforesaid statement, the main allegations are against the above co-accused persons and it comes in the middle of the statement that the applicant No. 1 narendra Singh Yadav who was a councillor of the concerned Municipal Corporation was also present there. After completion of the investigation, Police filed charge sheet against above 4 persons only on 21. 8. 2006. During the course of trial, Em Bai, mother of the deceased, was examined as P. W. 5, Ambika bai, maternal aunt of the deceased, was examined as P. W. 7 and Gagan Vir, son of the maternal aunt of the deceased, was examined as P. W. 8.

( 3 ) A perusal of their court evidence would show that they had deposed that while the other co-accused persons were assaulting the deceased with hands and fists, the present applicants were also present there and applicant no. 1 exhorted them to assault the deceased and on his exhortation the deceased was assaulted by them. It appears that on this evidence, the learned Special Judge (Atrocities)took cognizance in the matter and applying the provisions of section 319 of the Cr. P. C. , issued warrant of arrest against the applicants holding that prima facie the involvement of these applicants also appears in the aforesaid case. A perusal of the order would show that the Special Judge has taken cognizance u/ss 302, 109 and 120-B/34 IPC read with section 3 (2) (v) of the Special Act. It is after this, apprehending arrest in the aforesaid case, the applicants have approached this Court seeking grant of anticipatory bail.

( 4 ) LEARNED Senior Advocate appearing for the applicants raises two fold arguments. His first argument is that the procedure adopted by the Special Judge is not in accordance with law as without affording any opportunity of hearing to a person, he cannot be added as an accused in a case. He also argues that the evidence, on which, the applicants are being made accused, appears to be the exaggerations made by the witnesses, referred to above, therefore, there appears to be no prima facie case against them. He further argues that in the facts and circumstances of this case, even with the aid of section 34 of ipc, the ingredients of offence u/s 3 (2) (v) of the Special Act would not be attracted, therefore, by entertaining an application filed u/s 438 Cr. P. C. anticipatory bail, should be granted to these applicants.

( 5 ) ON the other hand, learned State counsel opposes the bail application. He firstly argues that since the cognizance has been taken for an offence under the Special Act, the provisions of section 18 of the said Act would be attracted and in such a situation, the petition filed u/s 438

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