JUDGMENT :

[Manju Rani Chauhan, J.]

1. Heard Mr. Gaurav Kakkar, learned counsel for the applicants, Mr. Manoj Kumar Tripathi, learned counsel for the opposite party no.2, Mr. Amit Singh Chauhan, learned A.G.A. for the State and perused the record.

2. The present application has been moved seeking anticipatory bail in S.T. No.145 of 2022 arising out of Case Crime No. 840 of 2021, under Sections 452, 354, 323, 325, 504, 506 IPC and Section 3(2) (V)a, 3(1)r and 3(1)s of S.C./S.T. Act, P.S.-Kotwali Shahar, District-Bijnor, with the prayer that in the event of arrest, applicants may be released on bail.

3. A preliminary objection for admissibility of jurisdiction of the aforesaid bail application vide concurrent jurisdiction enshrined in Section 438 of Cr.P.C. has been raised by learned counsel for the opposite parties.

4. While answering the preliminary objection, the learned counsel for the applicant submits that there can be no absolute bar against grant of anticipatory bail in cases under the SC/ST Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. As per the settled law of the Apex Court passed in case of Prathvi Raj Chauhan vs. Union of India & Others reported in (2020) 4 SCC 727, if the complaint does not make out a prima facie case for the applicability of the provisions of the SC/ST Act, 1989, the bar created by Sections 18 and 18A(i) shall not apply. The only caveat is that the power has to be used sparingly and is not to be used so as to convert the jurisdiction into that under Section 438 of the Code of Criminal Procedure.

5. Thus, while entering into the merits of the case to see whether the bar under Section 18 and 18A(i) of the SC/ST Act is applicable to the present case, the applicant counsel has placed the following facts:-

i) An FIR has been lodged by Smt. Sunita on 08.12.2021 at about 13:50 p.m. against the present applicants and one Anil Kumar alleging therein that the victim's husband has a grocery shop and while asking for the goods, Anil Kumar, the named accused entered the shop and when the victim restrained him from entering the shop, asking him to stand outside the shop, finding her to be all alone in the shop, with bad intention, caught hold of the victim and tried to outrage her modesty. The aforesaid accused person used caste indicative words like “Chamar Chatta”. Alarm was raised by the victim, on which her son, Manish and brother-in-law, Dinesh reached the shop and thereafter, the aforesaid accused, Anil Kumar called other co-accused persons, who are the applicants in the present case and all of them with common intention entered the house of the victim having rod, danda and sharp edged weapon in their hands and assaulted the victim and her family members. The accused Anil Kumar was carrying countrymade pistol whereas Sohit (applicant no.1) was having iron rod. The accused Akash and Akshay (applicant nos.2 &3 respectively) had carried danda with them. The aforesaid accused persons with intention to kill the victim, her son and brother-in-law assaulted them. On hearing the noise of the victim and her family members, people gathered there to save the aforestated persons. Thereafter, the accused persons while running away from the place used caste indicating words.

ii) The FIR has been lodged after a delay of about one month and three days without giving any plausible explanation for the same, which falsifies the entire story.

iii) Only general allegations have been made against the applicants in the first information report.

iv) It was a sudden fight between the parties and there is no motive or intention on part of the applicants to cause injury to the injured.

v) Perusal of the statement of the victim under Section 164 Cr.P.C. goes to show that no offence under Section S.C./S.T. Act is made out against the applicants.

vi) The applicants have been falsely implicated in the present case due to village party bandi as has been emphasized