N. J. PANDYA, J. ( 1 ) PERMISSION is granted to convert this Miscellaneous Criminal Application into Special Criminal Application. ( 2 ) RULE. A. P. P. Mr. K. G. Shah waives service thereof. ( 3 ) IN view of the fact that the complaint lodged against the accused is for offence punishable under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as the Atrocities Act) as rightly submitted by LAPP Mr. Shah Section 18 of the Atrocities Act has to be considered which reads as under: section 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. The aforesaid Section 18 contains the words underlined above having committed an offence under this Act. The words underlined would clearly indicate that the complaint has to be seen and prima facie it should disclose an offence having been committed under the Atrocities Act. ( 4 ) IN view of the aforesaid statutory position I am of the opinion that the constitutional power of this Court which is being exercised by me in respect of this Special Criminal Application would certainly permit my examining the aforesaid aspect of the complaint prima facie disclosing an offence having been committed under the Atrocities Act. That precisely is the view taken by my learned Brother C. V. Jani J. when he dealt with Special Criminal Application No. 1491 of 1992 by his judgment dated 10-9-1992 a copy of which has been produced before me by L. A. Mr. H. L. Patel appearing on behalf of the petitioner. ( 5 ) IN this connection it will be worthwhile to refer to a judgment of the Division Bench of this Court reported in 31 (1) GLR 473. It was a case dealt with by Division Bench under Article 226 of the Constitution of India and the question of Terrorist and Disruptive Activities (Prevention) Act 1987 and with reference thereto whether power under Section 438 of Code of Criminal Procedure can be exercised by the High Court or not. It was a case dealt with by Division Bench under Article 226 of the Constitution of India and the question of Terrorist and Disruptive Activities (Prevention) Act 1987 and with reference thereto whether power under Section 438 of Code of Criminal Procedure can be exercised by the High Court or not. Speaking for the Division Bench Justice Kapadia has highlighted the factual position in first six paragraphs of the judgment and in the opening part of the judgment he has very concisely set out the prayers sought for in the petition which will have direct bearing on the question that are required to be decided in the petition before the learned Judges. ( 6 ) WITH reference to Article 21 of the Constitution of India as also powers of the High Court under Article 226 of the Constitution of India the learned Judges have categorically held that powers under Article 226 can never be circumscribed by any Act of the Parliament unless the Constitution itself is amended in that regard. The learned Judges therefore held that if contention is raised before them about the fact of the complaint being not of a nature as to attract the provisions of Sections 3 and 4 of TADA the Court can certainly examine the factual aspect of the complaint and eventhough there is a provision in the TADA that Designated Court cannot exercise its powers under Section 438 the High Court it its exercise of powers under Article 226 of the Constitution of India if satisfied on examination of the complaint prima facie that the offence under TADA having been applied in a completely arbitrary and mala fide manner and having been mentioned for co-lateral purposes would certainly interview. ( 7 ) THE TADA contains strict provisions of granting of bail and it being the execlusive province of the Designated Court and against its decision only the Supreme Court has been vested with the power to examine its correctness etc. the aforesaid decision of the learned Judges of the Division Bench of this Court with reference to granting or otherwise of orders in the nature of anticipatory bail under Section 438 Cr. P. C. can certainly be considered when I am dealing with the provisions of Atrocities Act containing the aforesaid prohibition in Section 18 thereof. the aforesaid decision of the learned Judges of the Division Bench of this Court with reference to granting or otherwise of orders in the nature of anticipatory bail under Section 438 Cr. P. C. can certainly be considered when I am dealing with the provisions of Atrocities Act containing the aforesaid prohibition in Section 18 thereof. I therefore draw support from this decision of the Division Bench and have no hesitation in holding that the Court can examine the applicability or otherwise of the Atrocities Act and for that purpose can look at the facts narrated in the complaint. ( 8 ) THERE have been series of decisions no doubt under the Protection of Civil Rights Act where question of insult on ground of untouchability was being considered and several times it has been held that reference to a particular accused or a community by itself would not amount to an insult on ground of untouchability. In other words it has been shown in relation to the Protection of Civil Rights Act that intended insult was on ground of untouchability. In other words while referring to Caste or Community of untouchable if intention was to insult on that ground i. e. untouchability then only there would be an offence. ( 9 ) XXX xxx xxx ( 10 ) XXX xxx xxx ( 11 ) XXX xxx xxx ( 12 ) XXX xxx xxx ( 13 ) XXX xxx xxx .