In this petition, the Petitioner seeks anticipatory bail under Section 438 Cr.P.C. in connection with complaint case No.70/2016 dated 16.08.2016 pending in the Court of Ld. Judicial Magistrate 1st Class Sangrur, under Section 506 of the Indian Penal Code (in short ' IPC ') and Section 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act').

2. In transpires that earlier the petitioner along with two other co-accused persons had filed CRM-M-25045-2017 which was subsequently dismissed as withdrawn with liberty to approach the Ld. Court below on 18.07.2017. But the petitioner has re-approached this Court under Section 438 Cr.P.C.

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3. At the outset, it may be mentioned that according to Section 18 of the Act, jurisdiction of the Courts under Section 438 Cr.P.C. to grant pre-arrest bail is barred.

4. It is, however, well-settled that such jurisdiction can be invoked if the FIR itself does not disclose the commission of the concerned offence. For these purpose, the necessary ingredients which constitute the aforesaid offence, must have to be satisfied, which are listed as follows -

5. Ld. counsel for the petitioner has cited three decisions in support of his prayer. In the case of " Gorige Pentaiah Vs. State of A.P. & Others " 2008 (4) RCR (Criminal) 171, the complaint under Section 3(1)

(x) of the Act was quashed by the Hon'ble Supreme Court on the ground that it was not stated therein "that accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate the complainant in a place within public view".

6. In the case of " Dinesh @ Buddha Vs. State of Rajasthan "

7. Relying upon the aforesaid observations, the Allahabad High Court in its Appellate Judgment rendered in " Durga Singh Vs. State of U.P ." 2015 (26) RCR (Criminal) 510, modified the judgment of conviction by observing as follows -

8. While the aforesaid judgments cited on behalf of the Petitioner, the Hon'ble Supreme Court laid down the parameters regarding maintainability of a complaint or propriety of a conviction for the offence under Section 3(1)(x) of the Act, neither of these two decisions anywhere relates to the question of statutory bar against Section 438 Cr.P.C. in terms of the Section 18 of the Act. In this connection, however, Ld. counsel for the petitioner has cited a Division Bench decision of the Karnataka High Court in case of " N.B. Gungarakoppa and others Vs. State of Karnataka " 2002(4) RCR (Criminal) 77, wherein it was held inter alia -

3 of 7 ::: Downloaded on - 03-09-2017 14:06:04 ::: CRM-M-29149-2017 -4- "While the bar (under Section 18 ) would apply in genuine cases, it would certainly not apply to situations in which the provisions of the Act have wrongly been invoked or where the facts do not justify - Court can make some scrutiny to find out true nature and contents of charge not merely going by words or sections - Application for bail can be filed either in sessions court or High Court."

9. Ld. counsel for the Respondent/complainant has however, contended that the aforesaid decisions do not help the Petitioner in the present case. It has been submitted that the above Division Bench decision of the Karnataka High Court was pronounced in the year 2002. Subsequently however, the Apex Court in "Vilas Pandurang Pawar and another Vs. State of Maharasthra and others" 2012 (4) R.C.R. (Criminal) 761 by its judgment passed ten years later dismissed the S.L.P. in which, the two Appellants had been denied anticipatory bail by the Bombay High Court, although such bail under Section 438 Cr.PC had been granted to other 13 co-accused. The Hon'ble Supreme Court dismissed the S.L.P. By observing inter-alia -

10. In this backdrop, the complainant's side has submitted that in the present case, there are direct allegations in the original Petition of complaint filed u/s 156 (3) Cr.PC (Annexure P-1) to indicate applicability of the offence u/s 3(1)(x) of the Act. We may therefore, advert to the relevant extracts of the original complaint, which are set out below -

11. It can therefore, be seen that in great detail, the derogatory and insulting casteist abuses have been narrated in the FIR that the accused proclaimed themselves to be of superior caste (Jatt) and the complainant as 'chure chamar' is also mentioned explicitly apart from various derogatory term and that it has also been unambiguously alleged that the aforesaid acts were committed by the accused persons in front of the "persons gathered there". So it cannot be said that the FIR per se shows that no offence u/s 3 (1)(x) of the Act is prima facie made out. Consequently, this Court is of the opinion that the petitioner would not be entitled to grant of anticipatory bail u/s 438 Cr.PC on account of the statutory bar of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, although the Trial Court can consider his bail application on merits immediately after he appears before it 6 of 7 ::: Downloaded on - 03-09-2017 14:06:04 ::: CRM-M-29149-2017 -7- and without being influenced by any observations regarding the factual merits of the case as noted in this Order.

(SUDIP AHLUWALIA) JUDGE August 31, 2017 AS

1. Whether speaking/reasoned: Yes/No

2. Whether reportable: Yes/No 7 of 7 ::: Downloaded on - 03-09-2017 14:06:04 :::