JUDGMENT

Ashok Kumar Verma, J. - Notice of motion.

On the asking of this Court, Mr. Munish Sharma, AAG, Haryana accepts notice of motion.

2. The petitioner in the aforesaid anticipatory bail application filed under Section 438 of the Cr.P.C. is alleged to have committed offences punishable under Section 3 (1) (r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act') and Section 384 of the IPC in case FIR No.948 dated 19.10.2022 registered at Police Station Assandh, District Karnal.

3. The moot point which requires consideration by this Court in the present case is whether in the matter of grant of anticipatory bail to the petitioner alleged to have committed offences under the SC/ST Act can approach this Court directly by filing application under Section 438 of the Cr.P.C. for grant of anticipatory bail when the said statute provides an absolute prohibition on the applicability of the provisions of section 438 of Cr.P.C.

4. The present FIR has been registered by the police on the statement of Mr. Dinesh Kumar, Secretary and Executive Officer, Market Committee Assandh, Karnal against the petitioner on the complaint of Pardeep Kumar, Incharge, HSWC. Said Pardeep Kumar has given a written complaint in the office of aforesaid Mr.Dinesh Kumar regarding being threatened by the petitioner saying caste related words, demanding money by causing mental humiliation.

5. Learned counsel for the petitioner, inter alia, submits that the petitioner who is a journalist in Punjab Kesri, while doing his official duty had published some news items regarding the inaction of the police and the embezzlements being committed in the Market Committee, Assandh, due to which the complainant has falsely implicated the petitioner. As per the contents of the FIR, offence under Sections 384 of the IPC and Section 3 (1) (r) of the SC/ST Act is not made out against the petitioner. He further submits that the petitioner can directly approach this Court without approaching any other court for grant of anticipatory bail under Section 438 of the Cr.P.C. In support of his contention, learned counsel relies on Onkar Nath Agrawal and others vs. State, 1976 Criminal Law Journal, 1142 (FB) (Allahabad), Mohan Lal and others etc. vs. Prem Chand and others etc., AIR 1980 (Hmachal Pradesh) 36 (FB), Balan vs. State of Kerala, 2003 (4) RCR (Criminal) 733 (DB), Ranjit Singh Virk vs. State of Punjab, 1997 (3) RCR (Criminal), 207 etc.

6. I have heard learned counsel for the parties and perused the paper-book.

7. The Hon'ble Supreme Court had in Prathvi Raj Chauhan v. Union of India and Others (2020) 4 SCC 727 observed that if the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created by section 18 and section 18A(1), shall not apply. The difficulty arises as to the forum where the 'absence of prima facie case' can be agitated. The aforenoted judgment is coupled with the creation of Special Courts and the conferment of appellate jurisdiction on the High Court under sections 14 and 14A of the SC/ST Act.

8. Hence the questions were required to be altered and the same are rephrased as follows:

'(i) In view of the observations in Prathvi Raj Chauhan's case, whether the High Court alone has jurisdiction to consider an application under section 438 or under section 482 of Cr.P.C?

(ii) In view of the observations in Prathvi Raj Chauhan's case, whether the High Court has concurrent jurisdiction to consider an application under section 438 of Cr.P.C?

(iii) In view of the observations in Prathvi Raj Chauhan's case, can an accused, whose application for anticipatory bail was rejected by the Special Court or the Sessions Court, file another application under section 438 of the Cr.P.C before the High Court or should it be by an appeal under section 14A of the Act?

(iv) In view of the observations in Prathvi Raj Chauhan's case, is it the Sessions Court or the Special Court