JUDGMENT

Jasgurpreet Singh Puri, J. - The present petition has been filed under Section 438 of the Code of Criminal Procedure (for short the Cr.P.C.) praying for issuance of directions to the arresting officer/SHO, Police Station, Barnala, to release the petitioner on bail in the event of his arrest in case FIR No.221 dated 24.12.2019, under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Barnala.

2. The grievance of the petitioner is that vide Annexure-P5, the above stated FIR has been lodged against him at the instance of one Jatinder Singh, who was a social study teacher in the same school along with the petitioner and that the petitioner has been targeted in a mala fide manner.

3. Before issuing notice in the present petition, the learned Assistant Advocate General, Punjab, was asked to assist the Court with regard to the maintainability of the present petition which has been filed under Section 438 of the Code of Criminal Procedure, in view of specific bar created under Section 18-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short the SC & ST Act), and particularly in view of the judgment of Honble the Supreme Court in Union of India v. State of Maharashtra and others, 2019 (4) RCR (Crl.) 828.

4. Learned counsel for the petitioner had raised an argument that when the FIR does not, prima facie, disclose commission of or make out an offence under the SC & ST Act, then the petition under Section 438 Cr.P.C. would be maintainable despite the bar created under Section 18-A of the SC & ST Act and therefore, on 16.1.2020, notice of motion was issued to the State so that the matter can be heard in its entirety, both on maintainability as well as on the merits of the case.

5. Before adverting to the facts of the present case, the law with regard to the maintainability of the petition under Section 438 Cr.P.C. needs to be discussed.

6. Section 18 of the SC & ST Act, is reproduced 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.'

7. Honble the Supreme Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra and another, 2018 (2) RCR (Crl.) 552 , while dealing with the provisions of Section 18 of the SC & ST Act, held as under:-

'Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention.

8. Thereafter, Honble the Supreme Court gave the conclusion as follows:-

'Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of court and are quashed.

ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);

iii) In view of acknowledged abuse of law of arrest in cases under the Atroci