1 S.B. Cr. Bail Application No. 794/2008 (Rekha Ram & Anr. Vs. State of Rajasthan) Date of order : 26.03.2008 HON'BLE MR.H.R.PANWAR,J. Mr. M.C.Bhoot for the petitioners. Mr. J.P.S.Choudhary, P.P. Mr. K.L.Bishnoi for the complainant. The petitioners seek anticipatory bail under Section 438 Cr.P.C. for the offences under Sections 302, 307, 325, 452, 147, 148 and 149 IPC and Section 3 (x) of the SC/St (Prevention of Atrocities) Act, 1989 (for short 'the Act' hereinafter). Heard learned counsel for the petitioners and public prosecutor for the State as also counsel appearing for the complainant. Perused the order impugned. Learned counsel for the petitioners submits that after investigation the police has filed challan and therefore, the petitioners will surrender before the trial court and move a regular bail and the trial court may be directed to decide the same on the same day. Learned counsel for the petitioners has relied on a decision of Hon'ble Supreme Court in Naresh Kumar Yadav Vs. Ravindra Kumar and Others (2008) 1 SCC 632. Learned public prosecutor opposing the bail application submits that this bail application is under Section 438 Cr.P.C. and offences are of serious nature more particularly the offence of murder, attempt to murder and offence punisahble under the Act and Section 18 of the Act makes it clear that Section 438 Cr.P.C. is not applicable where the offence punishable under the Act is alleged. Even otherwise, the challan 2 has not been filed against the petitioners but it has been filed against other co-accused and investigation has been kept pending against the present petitioners under Section 173 (8) Cr.P.C. and therefore, the custodial interrogation is necessary. Having regard to the facts and circumstances of the case, in my view, it is not a fit case for giving such a direction sought for. On the contrary, a police custodial interrogation is necessary in such heinous offence of murder. In the decision relied on by learned counsel for the petitioners, the Hon'ble Supreme Court held that the power exercisable under Section 438 Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty, then power is to be exercised under Section 438. In the instant case, there is allegation against the petitioners having committed the offences of murder, attempt to murder, causing injuries, unlawful assembly punishable under Section 302, 307, 325, 452, 147, 148 and 149 IPC, apart from these offences there is allegation against the petitioners having committed the offence punishable under Section 3 (x) of the Act and Section 18 of the Act provides that Section 438 Cr.P.C. not to apply to persons committing an offence under the Act and therefore, in view of Section 18 of the Act, the provisions of Section 438 Cr.P.C. for grant of anticipatory bail are not applicable. Even otherwise, looking to the gravity of offences, serious nature of allegations against the petitioners as noticed above, in my view, it is not a fit case granting protection under Section 438 Cr.P.C. On the contrary, police custodial interrogation is necessary in such case of having committed heinous offence of murder and other offences and therefore, it is 3 not a fit case for giving such direction sought for. The decision relied on by learned counsel for the petitioners turns on its own facts and therefore, is of no help to the petitioners. The bail application filed by the petitioners under Section 438 Cr.P.C. is therefore, dismissed. (H.R.PANWAR), J. rp