ORDER
V.S. Aggarwal, J.
1. On basis of the statement of Gurmit Singh, First Information Report No. 3 at Police Station Amloh, District Fatehgarh Sahib had been recorded. He had recited that in the village there were many cows those were wandering in the Village. On 15-1-1997 he was in his house and talking to his brother Nirmal Singh and uncle Rulda Singh pertaining to their domestic problems. Some of the cows that were wandering came in front of their house. At that time the petitioner son of Niranjan Dass was holding a gandasi in his hands. He also came there. He started abusing the complainant and said 'Bhian Choda Chamara after taking the milk of cows now left the cows to wander in the village. 'The complainant and his relatives tried to prevail upon the petitioner not to do so but he entered their house and thereupon said 'come out Chamaro, let me see you today. 'The petitioner gave a blow from the reverse side of the gandasi on the complainant. He raised an alarm. 'Mar ditta, Mar Ditta'. The brother and uncle of the complainant tried to save him. The petitioner gave another blow from the reverse side of the gandasi on the person of complainant and ran away. While going away, he had threatened that the complainant would be eliminated.
2. By virtue of the present petition Phulla Dass petitioner seeks that he may be admitted to bail (sic) because the first information report has been registered with respect to offences punishable under Section 452/323/506 of the Indian Penal Code besides Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act').
3. Earlier the petitioner had filed an application in this Court seeking anticipatory bail and on 17-2-1997 the following order had been passed :-
Petitioner seeks bail/anticipatory bail with respect to F.I.R. No. 3 dated 16-1-1997 registered at Police Station Amloh, District Fatehgarh Sahib. It pertains to an offence punishable under Sections 452/323/506 of the Indian Penal Code read with Section 3 of the Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
In the facts and circumstances it could be appropriate that the concerned Sessions Judge/ Additional Sessions Judge at Fatehgarh Sahib decides the said application. Petitioner would appear surrender before the Court in person and submitted his necessary application seeking bail. Learend Sessions Judge/Additional Sessions Judge may decide the said application on merits by 24-2-1997. Till then the petitioner shall not be arrested. Copy of the order he given Dasti under the signature of the Reader. Sd/(V.S. AGGARWAL) Feb. 17, 1997 JUDGE.
Thereupon, the petitioner had approached the Court of Sessions with a fresh petition. It came up for hearing before the learned Additional Sessions Judge, Fatehgarh Sahib. The learned Additional Sessions Judge relied upon the decision of the Karnataka High Court in the case of Bapu Gouda v. State of Karnataka (1996) 1 Rec Cri R 453 : 1996 Cri LJ 1117 and held that the petition seeking anticipatory bail was not maintainable. Accordingly, it was dismissed. Hence, the present petition has been filed.
4. Learned counsel for the petitioner urged that the first information report has been added simply with an object to humiliate the petitioner. False facts have been asserted. According to him, it is a fit and proper case where inherent powers of the Court should be exercised admitting the petitioner to anticipatory bail. On the contrary the respondents urge that keeping in view the provisions of Section 18 of the Act, the present petition is not maintainable. Therefore, the main controversy in the present case is with respect to the rigors of Section 18 of the Act.
5. The above said Act had been enacted to prevent to commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. It is to provide special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. Section 18 of the Act debars a person for claiming anticipatory bail and reads :-
18. Section 438 of the Code not to apply to persons committing an offence under the Act. - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any. person on an accusation of having committed an offence under this Act.
6. So far as the constitutional validity of Section 18 of the Act is concerned, it had been considered by the Supreme Court in the case of State of M.P. v. Ram Krishna Balothia AIR 1995 SC 1198 : 1995 Cri LJ 2076. The Supreme Court negatived the plea that it violates the provisions of Article 14 of the Constitution and held (para 6):-
It is pointed out in the above Statement of Objects and Reasons that when members of the Schedule Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form distinct class by themselves and cannot be compared with other offences.
Keeping in view the clear and unambiguous findings arrived at by the Supreme Court, further discussion on the same becomes unnecessary.
7. Learned counsel for the petitioner urged that in any case there is no ground to debar the petitioner for being admitting to anticipatory bail. Once again in this regard the matter is clinched by the precedents on the subject. Full Bench of Rajasthan High Court in the case of Jai Singh v. Union of India AIR 1993 Raj 177 : 1993 Cri LJ 2705 had considered the scope of Section 438 of the Code of Criminal Procedure vis-a-vis the provisions of Section 18 of the Act. The answer to the vexed question was given that Section 438, Cr.P.C. was not applied to cases arising under the provisions of the Act. In paragraph 43 it was held :-
Section 438 was not applied to the cases arising under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The enactment was a special measure which incorporates the various forms of indignities, humiliations, harassments and exploitation to form the basis of atrocities when committed against the members of the Scheduled Castes and Schedule Tribes.
Subsequently, while discussing the same, further plea that right of anticipatory bail flows from Article 21 of the Constitution was also negatived and in paragraph 50 it was again concluded.
The right to anticipatory bail did not flow from Article 21 of the Constitution either expressly or impliedly. This right has been conferred by the Parliament. The Parliament by enacting another law or by amending the Code of Criminal Procedure could take it away also.
Same question was considered by the Supreme Court in the case of State of M.P. v. Ram Kishna Balothia 1995 Cri LJ 2076 (supra). The main argument advanced before the Supreme Court was as to whether right to seek anticipatory bail is an essential ingredient of Article 21 of the Constitution or not. The Supreme Court in paragraph 7 repelled the said contention by holding :-
Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.
Subsequently, the Supreme Court noted that there is every likelihood of the liberty being misused and in paragraph 9 further held :-
Of course, the offences enumerated under the present case are very different from those under the Terrorists and Disruptive Activities (Prevention) Act, 1987. However, looking to the historical background relating to the practice of 'Untouchability' and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences. There is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21.
Even the Karnataka High Court in the case of Bapu Gouda v. State of Karnataka 1996 Cri LJ 1117 (supra) had concluded that provisions of Section 438, Cr.P.C. are not available with respect to offences under the Act because of Section 18 of the said Act.
8. It is obvious from aforesaid that a case has been registered under the Act. A person has no right to claim anticipatory bail. There is a specific embargo because of Section 18 of the Act. Section 438 of the Code of Criminal Procedure is not available to persons committing offences under the Act.
9. In that event it had been argued that this Court in any case should use its inherent powers and the petitioner may be admitted to anticipatory bail. Reliance was placed on the Division Bench decision of the Delhi High Court in the case of Capt. Sathish Kumar Sharma v. Delhi Administration (1991) 1 Cri LR 480 : 1991 Cri LJ 950. The Division Bench of that Court held that against threatened or imminent violation of fundamental right of personal liberty, petition under Section 226 of the Indian Constitution is maintainable.
10. Indeed there is no controversy with the said proposition. But when there is a specific bar as noted above, under Section 18 of the Act, such a power would only be used in exceptional cases. If the Court comes to the conclusion that the process of law is being misused, the petition is totally mala fide and vexatious, on basis of which first information report is recorded, the Court would certainly exercise its inherent powers and even powers under Article 226 of the Constitution. But it would certainly not be exercised to defeat specific provisions namely Section 18 of the Act.
11. Can we say that in the facts of the present case there is an abuse of the process of the law or the first information report has been recorded on material which is mala fide. At this stage, the petitioner had tried to rake up the contention to this extent but it is pre-mature to record a finding at the stage. The matter has to be investigated by the police. They have to arrive at the finding as to if what the petitioner states is correct or not. Keeping in view of the facts in dispute, such a finding cannot be arrived at. Consequently, the petitioner indeed cannot claim in the facts of the case that he is entitled to be enlarged on anticipatory bail. At this stage, a word of caution necessarily must be aided. Keeping in view the drastic provisions of the Act, the police must investigate the matter with great responsibility. In each and every case personal liberty of an individual need not be jeopardised. Consequently, it must be held that as at present in the facts, the petitioner is not entitled anticipatory bail keeping in view the embargo of Section 18 of the Act.
12. Subject to the findings recorded above, the petition must fail and is dismissed.