IMPORTANT POINT
If there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.”
Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out.

1. These are the applications for anticipatory bail.

2. The applicants apprehend their arrest in connection with various FIRs, the details of which are narrated herein below. It is noted that in these FIRs, provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Atrocities Act' for short) are also invoked along with other general penal provisions.

3. Whether the applicants should be granted anticipatory bail or not is the question which can be decided on the merits of the matter. However in view of the provision of Section 18 of the Atrocities Act, the first issue which needs to be addressed is, whether these applications can at all be considered on merits, since the provisions of the Atrocities Act are invoked in the FIRs in question.

4. On the above wider/preliminary issue, learned advocates are heard at length. Learned advocates for the applicants, learned Public Prosecutor and learned advocates for the complainants have addressed the Court at length. The provisions of the Atrocities Act and various judgments are put to the notice of the Court.

5. Learned advocates for the applicants have jointly submitted that, though the provision of Section 18 of the Atrocities Act creates a bar in entertaining an application for anticipatory bail, duty is cast on the Court to verify and find out as to whether an offence under the Atrocities Act has been prima facie made out or not. It is submitted that for this limited purpose also, the scrutiny has to be made by the Court and rejecting these applications as not maintainable, would result in negating that scrutiny and disowning that duty by the Court. Learned advocates have submitted that in the cases in hand, by no stretch of imagination, it can be said that any of the applicants has done anything to any of the complainants or the victim to intentionally insult him or to intimidate him either in public or otherwise because of his caste. It is submitted that on the contrary, there is misuse of the Atrocities Act against the applicants for the reasons wholly attributable to the complainants. It is submitted that even prima facie, no offence under Section 3 of the Atrocities Act is made out and therefore this Court can and should consider these applications under Section 438 of the Code of Criminal Procedure, 1973, in spite of the bar under Section 18 of the Atrocities Act. Heavy reliance is placed on the decision of the Supreme Court of India in the case of Vilas Pandurang Pawar versus State of Maharashtra reported in (2012) 8 SCC 795.

6. Learned advocates for the complainants have vehemently submitted that, it is not open to this Court to embark upon the inquiry, as to whether any prima facie offence is made out or not. It is submitted that, that would negate the very provision of Section 18 of the Atrocities Act. Heavy reliance is placed on the decision of the Division Bench of this Court in the case of Pravinchandra N. Solanki versus State of Gujarat recorded on Criminal Reference No.1 of 2011 dated 02.12.2011. Apart from other submissions, reliance is also placed on the provision in Section 8 of the Atrocities Act with regard to presumption as to offences. It is submitted that these applications be dismissed as not maintainable.

7. Learned Public Prosecutor has opposed these applications on merits. However he has drawn the attention of this Court to the decision of Hon'ble the Supreme Court of India in the case of Vilas Pandurang Pawar (supra) and has submitted that, it can not be disputed that, a duty is cast on the Court to verify and find out whether an offence under Section 3 of the Atrocities Act has been prima facie made out.

8. Having heard learned advocates for the respective parties, it transpires that the effect and scope of Section 18 of the Atrocities Act needs to be ascertained first.

8.1 The Division Bench of this Court, while answering a Reference in the case of Pravinchandra Solanki (supra), has held as under.

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