The main legal point established is that the bar on anticipatory bail under the SCST Act does not apply if no prima facie case is made out, and the court has the inherent power to grant pre-arrest bail in such cases.

JUDGMENT

Nidhi Gupta, J(Oral). - This appeal under Section 14A(2) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 (for short 'the SCST Act') is directed against the order dated 30.09.2022 passed by Additional Sessions Judge, Jalandhar vide which anticipatory bail application moved by the appellant under Section 438 Cr.PC was dismissed. Appellant had sought anticipatory bail in criminal case arisen out of FIR No. 75 dated 22.9.2022 registered under Sections 354-A, 506 IPC; and subsequently offence under Section 3 of the SCST Act was added later on, on 25.9.2022 vide Rapat No. 20, PS Patara, District Jalandhar (Rural).

2. The impugned order dated 30.9.2022 reads as under:-

'Through this application prayer has been made to admit the applicant on anticipatory bail in FIR registered u/ss 354-A, 506 IPC and u/s 3 of the SC & ST (Prevention of Atrocities Act,1989). However, in view of the notification dated 1st January 2016 and notification dated 20th August, 2018 issued by Ministry of Law and Justice, anticipatory bail under SC & ST (Prevention of Atrocities Act 1989) is barred.

Therefore, for this short ground, this application being not maintainable is dismissed. File be consigned to Record Room.'

3. Relevant parts of the above-referred Notifications are as follows:-

Relevant extract of Notification dated 1st January, 2016 In section 3 of the principal Act -

(i) for sub-section (1), the following sub-section shall be substituted namely:-

'(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- .........(a).......... to (q)..........

xxxxxxxxxxxxxxxxxxx

(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;

(w) (i) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.'

Relevant extract of Notification dated 17th August,2018, (inadvertently mentioned in the impugned order as 20.8.2018)

'2. After section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the following section shall be inserted, namely: -

"18A. (1) For the purposes of this Act, -

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.".

4. A perusal of the above Notification dated 17.8.2018 shows under Section 18A(2) of the SCST Act, a bar has been imposed whereby provisions of Section 438 Cr.PC will not apply to cases under the SCST Act notwithstanding any judgment, order or direction of any court.

5. Counsel for the appellant has assailed the impugned order primarily on the ground that there are several judgments of this Court, as well as of the Hon'ble Supreme Court, whereby it is held that bar under Section 18 and 18A will not apply in cases where no prima facie case is made out against the accused. In support counsel refers to Prathvi Raj Chauhan v Union of India and others (2020) 4 SCC 727/ 2020 AIR (SC) 1036; and Lokesh and others v The State of Karnataka and another, Law Finder Doc Id # 1997522; and submits that the case of the appellant falls within the exceptions carved out vide these judgments and record bears out that no prima facie case is made out against the appellant. It is accordingly submitted that, learned Court below was an error in holding that the appellant's application under Section 438 Cr.PC was not maintainable.

6. Counsel