Important Points:
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. In other words, 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."

Paresh Upadhyay, J.

This is an application for anticipatory bail.

2. The applicant apprehends his arrest in connection with FIR being CR-I No. 48 of 2016 registered with the DCB Police Station, Ahmedabad, for the offences punishable under Section 306 of the Indian Penal Code and Sections 3(1)(r) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989. The applicant is a Police Inspector, who at the relevant time was working under the Ahmedabad Police Commissionerate and the deceased was his Police Constable.

3. Learned advocate for the applicant has submitted that, the applicant is a Police Inspector and the deceased was a Police Constable working under him. He has taken this Court through the narration in the complaint line-by-line, the time gap between the occurrence and filing of FIR, the sickness/tendency on the part of the deceased of frustration/depression, which led to his unfortunate death. He has extensively referred to and taken this Court through the material on record to contend that, under no circumstances, the applicant could be said to have abetted the suicide committed by the Constable. It is submitted that, this application be allowed on merits. Reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Chitresh Kumar Chopra v. State (G.N.C.T.) of Delhi reported in (2009) 16 SCC 605.

3.1. Without prejudice to the above, learned advocate for the applicant has further submitted that, the death of the Constable had nothing to do with his caste, and invoking the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989 ('the Atrocity Act' for short) in the present case, is just to make this application not maintainable. It is submitted that, such an application can not mechanically be rejected as not maintainable, since not only it is within the power of the Court, but duty is also cast upon the Court to find out as to whether, prima facie any offence is made out under the Atrocity Act. On the aspect of maintainability of this application, heavy reliance is placed by the learned advocate for the applicant on the decisions of Hon'ble the Supreme Court of India in the case of Vilas Panduranga Pawar v. State of Maharashtra reported in (2012) 8 SCC 795 and in the case of Gorige Pentaiah v. State of Andhra Pradesh reported in (2008) 12 SCC 531. Reliance is also placed on the judgment of this Court in the case of Hareshbhai Dhirubhai Danger and others v. State of Gujarat and another recorded on Criminal Misc. Application No. 12577 of 2016 and cognate matters dated 10.10.2016 (2017 (3) GLR 1919). It is submitted that, this application be considered and allowed on merits.

4. Learned Additional Public Prosecutor and learned advocate for the complainant both have contested this application on maintainability and also on merits. It is submitted that, in view of the bar of Section 18 of the Atrocity Act, this application need not be considered on merits at all. It is further submitted that, even on merits, the application needs to be rejected.

5. Learned Additional Public Prosecutor has made available to this Court, the material gathered during the course of investigation so far, to contest this application, inter alia on the ground that, the applicant is working as a Police Inspector. He has antecedents to his discredit, including brow-bitting his superiors. It is submitted that, the applicant had entered into a transaction of accepting bribe from a bootlegger, through the deceased, to show some favour. It was the case of the deceased that even then the said bootlegger was not favoured and the Inspector was not returning money either. It is submitted that, the Constable could not repay that amount, nor could he withstand the pressure either from the said antisocial element and/or from the Police Inspector (the applicant). It is submitted that, there is material with the investigating agency to support this theory. The said m