Point of Law: provision of Section 438 Cr. P.C. shall be available to an accused for anticipatory bail for alleged offences under the Scheduled Castes and Scheduled Tribes Act, 1989, if the accused/applicant is able to demonstrate that the complaint/F.I.R. does not make out “a prima facie” case for applicability of the provisions of the Act 1989. In such cases the bar created under sections 18 and 18A of the Act, 1989 shall not apply.

JUDGMENT :

1. Heard learned counsel for the petitioner and learned A.G.A.

2. This writ petition has been filed, praying for the following relief:-

“(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned First information Report dated 11.10.2020 registered as Case Crime No. 0476 of 2020, under Sections 34, 452, 354, 323, 504, 506 I.P.C. and Section 3 (1) (dha) of SC/ST Act, 1989, Police Station Shivli, District Ramabai Nagar (Annexure No.1 to the writ petition.)

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 not to arrest the petitioner in pursuance of the impugned First information Report dated 11.10.2020 registered as Case Crime No. 0476 of 2020, under Sections 34, 452, 354, 323, 504, 506 I.P.C. and Section 3 (1) (dha) of SC/ST Act, 1989, Police Station Shivli, District Ramabai Nagar (Annexure No.1 to the writ petition.)

3. Learned counsel for the petitioner submits that no offence under Section 3 (i) (dh) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out, inasmuch as, as per allegations made in the impugned FIR, neither the incident took place at any public place nor any specific role of the petitioner has been assigned. It is further submitted that accused Nos. 1 and 2 namely, Deepak and Anil Kumar @ Kater are close relatives of the informant-respondent no.3 and all are residing in one and the same house. Accused No.1 Deepak is “Dever” and accused No.2 Anil Kumar @ Kater is the “Nephew” of the informant-respondent no.3 and the petitioner, who is the accused No.3 has merely tried to intervene between the petitioner and her Dever and Nephew and consequently he has been falsely implicated. He further submitted that although no prima facie case under SC/ST Act has been made out and yet petitioner could not apply for anticipatory bail as Sections 18 and 18-A of the Act, 1989 specifically bar the applicability of Section 438 Cr. P.C.

4. Learned A.G.A. submitted that since on bare reading of the FIR, a cognizable offence is made out, therefore, no interference can be made with the impugned FIR.

Discussion and Finding

5. We have carefully considered the submissions of the learned counsel for the parties.

6. As per submissions of the learned counsel for the petitioner, the provisions of anticipatory bail under Section 438 Cr. P.C. shall not be available to the petitioner to apply for anticipatory bail in view of the bar imposed under Sections 18 and 18A of Act 1989.

7. For ready reference, the provisions of Sections 18, 18-A and Section 3 (1) (Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are reproduced below:

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also contains similar provisions, which exclude the application of Section 438 of Cr. PC. Sections 18 and 18-A provide as follows:-

“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.

18-A. No enquiry or approval required.—(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.”

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8. Similar submissions with regard to exclusion of Sections 18 and 18-A of Act, 1989 was co