Anticipatory bail is permissible under the SC/ST Act when the FIR fails to establish a prima facie case, as reaffirmed by the Supreme Court.

JUDGMENT

Manoj Kumar Ohri, J. (ORAL)--The present bail applications have been filed under Section 438 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the applicants seeking anticipatory bail in FIR No. 05/2021 registered under Sections 3 (1)(r)/3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act) and Section 506 IPC at Police Station New Usmanpur, Delhi.

2. Learned counsel for the applicants submits that while the applicant-Sanjay Singh is the father, the applicant-Suraj Singh is his son. He submits that the applicants in the present case are falsely implicated on account of an underlying dispute with respect to dishonour of cheque. She further submits that while the initial cheque was for Rs.1,00,000/-, the complainant has altered the same by changing the figure from Rs.1,00,000/- to Rs.4,00,000/-.

3. Learned counsel for the applicants has further relied on the decision in Prathvi Raj Chauhan v. Union of India and Others reported as (2020) 4 SCC 727 to submit that the anticipatory bail is maintainable in a case under the SC/ST Act, provided the ingredients of the offence are not made out on prima facie reading of the FIR. She further submits that in pursuance of grant of interim protection by this Court vide orders dated 17.03.2021, the applicants have joined the investigation. Lastly, she submits that the applicants are not involved in any other case.

4. Learned APP for the State duly assisted by learned counsel for the complainant has opposed the bail applications. She submits that as per the complaint, casteist remarks were uttered in a place within public view as it has been stated by the complainant that the incident dated 05.10.2020 was witnessed by two independent persons, namely Ravinder Parshad Verma & Arun Sharma. She further submits that the casteist remarks were uttered in the presence of aforesaid two witnesses and the applicants are not entitled to the benefit of anticipatory bail.

5. The Status Report has been placed on record.

6. I have heard learned counsels for the parties and perused the material placed on record.

7. Insofar as maintainability of an application under Section 438 Cr.P.C. in view of bar created by Section 18 of the SC/ST Act is concerned, suffice it to say that the Supreme Court in Prathvi Raj Chauhan (Supra) has held:

"11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint 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. We have clarified this aspect while deciding the review petitions."

8. This view has been reiterated by a separate and concurring judgment of Hon'ble S. Ravindra Bhat, J. in the following manner:

"32. As far as the provision of Section 18 -A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.."

9. The present case is registered under Sections 3 (1)(r)/3(1)(s) of the SC/ST Act, which read as under:

"3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

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(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;