AMAR DUTT,J - (1.) THE present petition for anticipatory bail has been filed by Ranjit Singh and one other in a complaint filed by Parkash Singh against them under Section 3 of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the 1989 Act'). Bail was being sought primarily on two grounds, (1) that such a complaint was not maintainable before the Judicial Magistrate and could only be filed before the Special Court; and (ii) that the bar under Section 18 of the 1989 Act regarding the maintainability of an application under Section 438 Cr.P.C. did not apply to cases where the offence was not made out.
(2.) FOR the first proposition, reliance was sought to be placed on the view expressed in Chandra Poojari v. State of Karnataka, 1998(3) RCR(Criminal) 373, which in view of the observations contained in Gangula Ashok v. State of A.P., 2000(1) RCR(Criminal) 797 is not of any help to the case of the petitioners. The Apex Court has in the letter authority clearly observed as under : "Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act." The second argument seeks to rely on the observations of a Full Bench of the Rajasthan High Court reported as Virendra Singh v. State of Rajasthan, 2000(4) RCR(Criminal) 53. A perusal of the judgment indicates that while holding that inspite of the bar contained in Section 18 of the 1989 Act, bail in anticipation can be considered if the F.I.R. or the complaint makes out no offence under the Act, the Court has observed as under :- "In our opinion, the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling for the case diary, charge sheet or any other material gathered at the time of investigation but if the allegations in the FIR or the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged. It is only in those miniscule number of cases, the Courts would be justified in entertaining the application, not because it is maintainable but clearly because the Act would be inapplicable in the facts and circumstances of that particular case. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that because once it is gathered from the FIR that the applicant is accused of committing an offence laid down under Section 3 of the Act of 1989, the bar of Section 18 would instantly operate against the person who has been made an accused of the offence under the Act of 1989. To put it differently, once it is apparent from the FIR that an offence under the Act of 1989 is even alleged, the Courts would not be justified at all in weighing or scrutinising the preponderance of the probability of commission of offence by the accused, but if from the FIR itself the ingredient of offence as laid down under Section 3 of the Act itself is found to be missing, the bar created by Section 18 would not be allowed to operate against an accused and only in that even his application for anticipatory bail would be dealt with by the concerned Court to determine whether the Act of 1989 can be said rightly applicable against the accused and not to enter into further enquiry into the matter so as to determine whether the allegations levelled against the accused in the FIR are true or false and there would be no justification to enter into the matter further in order to examine whether then allegations levelled against the accused are even prima facie correct or incorrect. Any other interpretation, in or opinion, would go against the letter and spirit of the clear provisions of Section 18 of the Act of 1989 which has already stood the test of reasonableness and constitutional validity upto the level of the apex Court."
(3.) SEEN in the light of these observations, it would not be permissible for this Court to embark into an enquiry into the probabilities of the petitioners having used the language that they are alleged to have employed against Parkash Singh, while deciding the question of maintainability of the application filed by them under Section 438 Cr.P.C. From a perusal of the complaint, it is clear that the petitioners are stated to have said that "Inna chamaran, churian nun sewa sambhali hoi hai jis they eah kabal nahin han ate inna nun chhittar mar mar ke kadna pauga" and "asin inna chamaran nun Gurudawara nahi rahin dena te bahar kadna hai", which seen in the light of other assertions made in the complaint, if true, may constitute an offence under Section 3 of the 1989 Act. In view of this, the bar contained under Section 18 of the 1989 Act would clearly be attracted and dis-entitle; the petitioners to the concession of anticipatory bail sought for by them.;