IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-15188 of 2010 Date of decision : 13.9.2010 Balkar Singh and another .....Petitioners Versus State of Punjab and another ...Respondents Present: Mr. R.S.Ghuman, Advocate for the petitioners. Mr. V.P.S.Sidhu, A.A.G., Punjab Mr. B.S.Jaswal, Advocate for respondent no.2. S. S.SARON, J. Heard learned counsel for the parties. On the last date of hearing, an objection was raised by Mr. B.S.Jaswal, Advocate appearing on behalf of respondent no.2 that the petitioner has not approached the Court of Sessions for grant of pre- arrest bail and has filed the petition for pre-arrest bail in this Court directly. It was submitted that the petitioner was liable to show the reason why he had not approached the Court of Sessions as otherwise every application for grant of bail would be filed directly in this Court. Mr. Ghuman, Advocate appearing on behalf of petitioner had taken time to show that petition for grant of pre-arrest bail in respect of offences under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Act” - for short) is directly Criminal Misc. No.M-15188 of 2010 [2] maintainable in this Court in view of the bar created in terms of Section 18 of the aforesaid Act. Mr. Ghuman, learned counsel appearing on behalf of the petitioners cites Balan Vs. State of Kerala 2004 CRL. L.J. 3427 (Kerala), Y.Chendrasekhara Rao and others Vs. Y. V. Kamala Kumari and others 1993 Crl. L.J. 3508 (1) (D.B.) (A.P.), Onkar Nath Aggarwal and others Vs. State 1976 Crl. L.J. 1142(1) (F.B.) (Allahabad), Ranjit Singh Virk Vs. State of Punjab 1997(3) Recent Criminal Reports 207 (P&H), Chikappa Vs. State of Karnataka 2002(2) RCR (Criminal) 400 (Karnataka), Om Parkash Sharma and others Vs. Union Territory, Chandigarh and another 2001 (3) RCC 50 (P&H), M.L.Ohri Vs. Kanti Devi. 2009(3) RCR (Criminal) 989 (P&H) and Gorige Pentaiah Vs. State of A.P. And others (2008) 12 SCC 531 to contend that such a petition is directly maintainable in this Court for grant of pre-arrest bail particularly in respect of offences under the Act. The petitioner it is submitted can seek pre-arrest bail as jurisdiction of the High Court is not limited and it can even exercise its jurisdiction under Section 482 Cr.P.C. and Article 226 of the Constitution of India, which Court of Session is not in a position to exercise. Further the petitioner is not bound to approach the Sessions Court before he can move High Court and that the person's right to choose the forum can't be curtailed. Learned counsel appearing on behalf of respondent no.2 has not been able to controvert the said position. After giving my thoughtful consideration to the matter, it may be noticed that the cases referred to by the learned counsel for the petitioner indeed show that an application for grant of pre-arrest Criminal Misc. No.M-15188 of 2010 [3] bail is directly maintainable in this Court. Although the same may not be an absolute rule. Besides, in respect of the offences under the Act in Om Parkash Sharma's case (Supra), the question of law was formulated inter alia to the effect whether in respect of an offence registered under the Act, is it possible for the Court to grant bail in anticipation of arrest either under Article 226 of the Constitution of India or Section 482 CrPC in spite of the bar under Section 18 of the Act? While referring the said question, this Court directed that in the event of the arrest of the petitioners (accused in the said case) on the allegations found in the complaint and in pursuance of the summoning order passed by the learned Magistrate, the petitioners should be released on bail on their furnishing necessary surety. Complaint (Annexure P-1) had been filed by respondent no.2 against the petitioners alleging the commission of offence under Section 3 (x) of the Act, besides, Section 506 Indian Penal Code. It is alleged that on 6.9.2006 at 5.00 P.M. the complainant and his father Karnail Singh were putting the reaped paddy crop for drying it up as it had gained moisture. The paddy crop was being dried in the field belonging to Pal Singh whose land was situated near the village Abadi. Both the accused Balkar Singh and Harpal Singh (petitioners), it is alleged, came and hurled filthy abuses to the complainant and his father Karnail Singh in respect of their caste besides manhandled them and tore their clothes. It is alleged that village abadi was near the place of incident and people had gathered there. A perusal of the complaint (Annexure P1) does not show that the complainant has alleged that the accused was not a member of the Scheduled Castes or Scheduled Criminal Misc. No.M-15188 of 2010 [4] Tribes and the complainant was insulted or intimidated by the accused with intent to humiliate in a place within public view. The allegations regarding the caste, it is alleged, were made by Balkar Singh and Harpal Singh on 6.9.2006 at 5.00 p.m. at the land belonging to Pal Singh son of Amar Singh resident of village Rajatal and the said land was near the village abadi. It is alleged that both the accused insulted the complainant and his father Karnail Singh too much due to their being Scheduled Caste and lower caste. In Gorige Pentaiah's case (Supra) it was held by the Supreme Court that the complainant ought to have alleged that the appellant-accused therein was not a member of the Scheduled Caste or a Scheduled Tribe and the complainant was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. When the basic ingredients of the offence were missing in the complaint, it was held that permitting such a complaint to continue would be unjustified. The petitioners have been summoned in the complaint case and their custody is not required for the purpose of investigation. The complainant is to establish its case by leading evidence. In the complaint, the names of any particular person or persons who had gathered at the place of incident are not mentioned and the case is based only on the statement of complainant and his father Karnail Singh. In order to make out an offence under Section 3 (x) of the Act, it is to be shown that whoever, not being a member of a Scheduled Castes or a Scheduled Tribes intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view is liable for punishment of Criminal Misc. No.M-15188 of 2010 [5] imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Therefore, it is to be established that the accused (petitioners) hurled filthy abuses to complainant and his father Karnail Singh regarding his caste in public view. It is merely mentioned in the complaint that place of incident was near the Abadi and people had gathered there but no particular reference has been made at to the persons who had gathered. In any case case, this aspect is to be gone into by the learned trial Court. Till date, the petitioners have not put in appearance before the learned Trial Court. In the facts and circumstances of the case, the present petition is disposed of with a direction that petitioners shall appear before the learned Trial Court within three days of the receipt of copy of this order. However, in the event of their arrest, they shall be admitted to bail subject to their furnishing personal bond and surety to the satisfaction of the learned Trial Court. Nothing stated herein shall be construed as an expression of opinion on the merits of the case and the learned Trial Court shall decide the case in accordance with law on the basis of evidence as is adduced before it. September 13, 2010 (S.S.SARON) Pka/amit JUDGE