BADAR DURREZ AHMED, J.

( 1 ) THIS is an application under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'as the Code') for grant of anticipatory bail. The main issue involved in this application is whether the petitioner would be entitled to invoke Section 438 of the Code in view of the provisions of section 18 of The Scheduled Castes and The scheduled Tribes (Prevention of Atrocities)Act, 1989 (hereinafter referred to as 'the sc and ST Act ). The allegation against the petitioner, inter alia, is that he used the words: tu Chura Hamare Khilaf Ladne Ki' Himmat karega" against the complainant, who is admittedly a member of a Scheduled Caste. Based on this allegation and other allegations, the learned Metropolitan Magistrate, Delhi passed a summoning order on 24. 08. 2005 against all the accused, including the petitioner for offences punishable under Section 325 / 34 IPC and the petitioner has been additionally summoned for the offence punishable under section 3 (1) (x) of the SCandst Act which is non-bailable.

( 2 ) THE primary argument advanced by Mr i. U. Khan, the learned counsel appearing on behalf of the petitioner, is that the complaint filed by the petitioner relates to an alleged incident of 11. 03. 2002. But, it is only at the pre-summoning stage that the complainant, who was examined as CW-1 on 28. 05. 2005, for the first time, made the accusation that the words mentioned above were used by the petitioner against him over three years ago on 11. 03. 2002. Mr Khan submitted that in the complaints and other letters / representations made by the complainant during the intervening period, there was no reference of the petitioner having uttered these words. Therefore, he. contended that these words have been imputed to the petitioner belatedly as an afterthought so as to bring him within the rigours of the stringent and strict provisions of the SCandst Act in an attempt to see that the petitioner does not get bail. Detailed submissions were made which shall be examined below.

( 3 ) ON the other hand, the learned counsel for the complainant submitted that it is not correct that the complainant had, on 28. 05. 2005, made the accusation with regard to the said words having been uttered by the petitioner for the first time. He submitted that a complaint dated 18. 06. 2002 to this effect had been lodged at Police Station nangloi, but no action was taken by the police. It is, therefore, his contention that the complainant had at the first opportunity informed the police of the petitioner having allegedly used the aforesaid derogatory words against the complainant. The learned counsel for the complainant also submitted that the summoning order dated 24. 08. 2005 has not been challenged by the petitioner and, therefore, the same has become final. As per the summoning order dated 24. 08. 2005 passed by the learned Metropolitan Magistrate, it is apparent that the learned Metropolitan magistrate had come to a prima facie view that offences under Section 325 read with section 34 IPC were made out against the accused Nos. 1, 2, 3 and 6 and the offence under Section 3 (1) (x) of the SCandst Act was made out against the accused No. 1 (the petitioner herein ). He submitted that the learned Metropolitan Magistrate having come to this prima facie view, the provisions of the scandst Act immediately came into play and by virtue of Section 18 thereof, Section 438 of the Code ceased to apply and, therefore, there is no question of entertaining the present application as it is barred at the threshold.

( 4 ) THESE, in brief, are the arguments advanced by the counsel for the parties. In order to appreciate the same and to discuss the same at greater length, it would be necessary to indicate the factual position in chronological order:-10. 03. 2002: It is alleged that at about 11. 00 p. m. , the petitioner directed the co-accused Harender Singh to make a phone call to the complainant. Such a phone call was allegedly