( 1 ) THIS application under Section 438 of Cr. P. C has been preferred on behalf of the petitioners/applicants against whom a case under Section 3 of scheduled Castes/scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ?the Act?) has been registered.

( 2 ) SECTION 18 of the 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. "

( 3 ) IT is obvious from the above provision that Section 438 of Cr. P. C is not applicable in relation to an accusation of having committed an offence under the Act. The Constitutional validity of this provision was upheld by the Supreme court in State of M. P. Vs. Rakesh Bahlotia 1995 SCC (Crl.) 439.

( 4 ) COUNSEL for the petitioners relied upon a judgment of this Court in daya Bhatnagar and Ors v. State 109 (2004) DLT 915 and Mukesh Kumar Saini and ors. vs. State ( Delhi Admn.) 2001 Crl. L. J 4587, both by my brother Justice s. K. Aggarwal, wherein this Court allowed the application under Section 438 of cr. P. C observing that the atrocities as alleged if not made in public view, this offence does not come within the purview of the Act and the anticipatory bail can be granted to the accused persons. He also relied upon an unreported judgment in bail applications NO. 322-24/2006 Shri Anuwak and Ors. vs. State by brother Justice S. N. Aggarwal, wherein relying upon the above judgment, the bail application was allowed. The other judgments referred by the petitioners are 2002 (4) RCR (Criminal) 445 (Punjab and Haryana High Court), 115 (2004) DLT 202 deepa Bajwa vs. State and Ors vs. State and 1998 Crl. L. J. 53 Chandra Poojari v. State of Karnataka.

( 5 ) IN my opinion, the Court, at the time of deciding bail, cannot go into the merits of the accusations and cannot give a findings whether accusations was made in public view or not, nor can give a finding whether the accused was aware of the caste of the complainant or not. In fact, giving such a finding by this court at the time of granting bail, would foreclose the entire case. Without giving a finding that the offence under Section 3 of the Act was not made out, this Court cannot entertain an

application under Section 438 Cr. P. C.

( 6 ) WITH due respect to my brother Judges, I am of the opinion that an application under Section 438 Cr. P. C cannot be entertained by the Court on any ground, when accusation is made under Section 3 of the Act.

( 7 ) I, therefore, consider that the matter be considered by a larger Bench. The matter is referred to Hon'ble the Chief Justice for referring this matter for conclusive opinion by a larger Bench. Let this matter be put up before hon'ble the Chief Justice for referring the same to a larger Bench. Parties are directed to appear before Hon'ble the Chief Justice on 9th October, 2007. The interim order to continue till then.

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