MUNIR KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BEFORE deciding this bail application on merits, it has become necessary to decide the preliminary objection raised by the learned Public Prosecutor, that the application for grant of pre- arrest bail u/s 438 Cr. P. C. is not maintainable in view of specific bar contained u/s. 18 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred to as 'the Act' ). As the question was of vital importance, a general notice was given to the learned members of the bar inviting their assistance to submit their views on this legal point. Section 18 of the Act reads as follows: "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. "

(2.) THE argument of the learned Public Prosecutor is that the provisions contained in the aforesaid section are clear and unambiguous and there is total bar to apply the provisions of section 438 of the Code of Criminal Procedure relating to pre- arrest bail, ordinarily called "anticipatory bail". Section 438 Cr. P. C. provides for grant of bail to person/persons apprehending arrest and this power has been given to the High Court or the Court of Sessions.

(3.) IT has been contended on behalf of the petitioner that when statute provides enhanced punishment as compared to the punishment prescribed for similar offences under the ordinary penal laws of the country and also for constitution of special court then higher responsibility and duty is cast on the court/judge to be sure that there exists a prima-facie case involving a person in the commission of the offence under the Act. IT is submitted by them that the provisions of section 18 should not be construed in a manner, so as to create a complete bar even to entertain an application u/s. 438 Cr. P. C. without application of mind on the facts as to whether the accusations made against a person do constitute an offence under the Act or not.