Judgment : KARPAGAVINAYAGAM, J. ( 1 ) HEARD. ( 2 ) THE question that arises for consideration in all these applications filed by the petitioners invoking Section 438 of the Code of Criminal Procedure, seeking to get the relief of anticipatory bail in the cases registered against them for the offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is as to whether they could claim such a relief despite the bar under Section 18 of the said Act. ( 3 ) ALL the counsel appearing for the petitioners, who filed separate applications under Sections 438 of the Code of Criminal Procedure, uniformly appealed to this Court that the petitioners are entitled to grant of anticipatory bail, in as much as the so many other persons, in other cases, accused of the similar offences, have been granted anticipatory bail by this Court on earlier occasions. They would as well produce the carbon copies of unreported orders, earlier passed by this Court. ( 4 ) MR. N. R Elango, the learned Government Advocate would raise a preliminary objection before this Court, contending that all the applications are not maintainable in-view of Section 18 of the S. C. and S. T. Act. 1989, by which the applicability of Section 438 of the Code of Criminal Procedure is totally excluded. In order to substantiate his contention, he cited various authorities rendered by this Court as well as the other High Courts and the Apex Court. ( 5 ) I have heard the submissions made by the respective counsel and gone through the citations referred by them. ( 6 ) TO deal with the arguments submitted before this Court, it will be useful to refer to the legislative history as well as the various sections of the Act and the Code of Criminal Procedure. ( 7 ) BEFORE the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed, the Parliament had passed on Act, known as The Protection of Civil Rights Act. 1955, to prescribe punishment for the preaching and practice of Unsociability. ( 8 ) SUBSEQUENTLY, the Parliament passed an Act known as The Untouchability (Offences) Act. ( 7 ) BEFORE the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed, the Parliament had passed on Act, known as The Protection of Civil Rights Act. 1955, to prescribe punishment for the preaching and practice of Unsociability. ( 8 ) SUBSEQUENTLY, the Parliament passed an Act known as The Untouchability (Offences) Act. 1955 in order to make an act penal, if any person on the ground of untouchability is subjected to any disability with regard to the observance of any social or religious custom, usage or ceremony, or- taking part in any religious procession. ( 9 ) EVEN then, it was felt that atrocities committed on Scheduled Caste and Scheduled Tribes had not diminished. Therefore, the Parliament passed the Act known as The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) act, 1989. ( 10 ) THE preamble of the act is quoted below:an act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such Offences and for matters connected therewith or incidental thereto. " ( 11 ) THE Statement of objects and reasons appended to the Bill, while moving the same in the parliament, read as under: Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and Scheduled Tribes, they remain vulnerable. They are denied number of Civil rights, they are subjected to various Offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. . ( 12 ) FROM the reading of the preamble of the present Act, it is clear that it had been enacted to prevent the commission of atrocities against the members of the Scheduled Castes and Scheduled Tribes. Therefore, this intention has to be taken into account; while considering the various sections of the Act as well as the relevant sections of the Code of Criminal Procedure. ( 13 ) IN this context, the view expressed by Swami Vivekananda as quoted in his book Modern India is quite relevant: Forget not that the lower classes, the ignorant, the poor, the illiterate, the cobbler, the sweeper, are thy flesh and blood, thy brothers. ( 13 ) IN this context, the view expressed by Swami Vivekananda as quoted in his book Modern India is quite relevant: Forget not that the lower classes, the ignorant, the poor, the illiterate, the cobbler, the sweeper, are thy flesh and blood, thy brothers. TThou brave one, be bold, take courage, be proud that thou art an Indian, and proudly proclaim, I am an Indian, every Indian is my brother. Say, the ignorant Indian, the poor and destitute Indian, the Brahmin Indian, the pariah Indian is my brother. Proudly proclaim at the top of thy voice, The Indian is my brother, the Indian is my life, Indians gods and goddesses are my God. ( 14 ) MAHATMA Gandhi, the father of our Nation, had in his fight for independence, taken the cause of Harijans to the fore-front. Finding their depressed stage, Mahatma Gandhi called them as Harijan i.e. The children of God. He seriously felt that injustice had been done to the Scheduled Castes and Scheduled Tribes. Whereas every-body was equal. They were being given the treatment which made them other than human beings. According to him, Harijan means a man of God. All the religious of the world describe God preeminently as the Friend of the friendless, Helper of the helpless and Protector of the weak. If therefore, anybody among people can be fitly described as men of God, they are surety these helpless, friendless and despised people. ( 15 ) IT would be apt to quote the verses of the Grant Poet Mahakavi Bharathiar, here: (Matter in other language) ( 16 ) PANDIT Nehru in one of the speeches made a reference to social revolution, which was necessary to be brought about, in order that every Indian thought himself equal to another. What he said is: The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work, will not be over. ( 17 ) DR. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work, will not be over. ( 17 ) DR. Rajendra Prasad, the former President of India assured the nation that the constituent Assemblys and the Governments aim was to end the poverty and to abolish distinction and exploitation and to ensure decent conditions of living, reflecting thet view of the greatmen referred above. ( 18 ) THE Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 had been enacted under Article 17 of the Constitution, which reads as under: Article 17 Abolition of untouchability - Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in. accordance with law. ( 19 ) ARTICLE 17 is a very significant provision from the point of view of equality before the law. It guarantees social justice and dignity of man, the twin privileges, which were denied to a vast section of the Indian society for centuries together. This Article does not define untouchability. Parliament had passed a statute called The Untouchability Offences Act (22 of 1955 ). The title of the act was changed by Parliament by an Amendment Act in 1976. The Act was now called The Protection of Civil Rights Act. Even then, the Parliament found that the atrocities, instead of diminishing against the members of Scheduled Castes and Scheduled Tribes, were increasing. In order to check them and for securing the civil rights, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was passed under Article 17 of the Constitution by the Parliament introducing Section 18 of the Act, through which the applicability of anticipatory bail provision under Section 438 Cr. P. C. has been totally excluded. ( 20 ) SECTION 18 of the Act is quoted below: Sec. 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 or an accusation of having committed an offence under this Act. ( 20 ) SECTION 18 of the Act is quoted below: Sec. 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 or an accusation of having committed an offence under this Act. ( 21 ) THE power of grant anticipatory bail has been newly conferred by the introduction of the new Section 438 of the Code of Criminal Procedure by the Amendment Code 1973. The Law Commission in its Fourty first report recommended for introduction of a provision for grant of anticipatory bail the LAW Commission observed in its Fourty eighth report:- The Bill introduces a: provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (4lst Report ). We agree that this would be a useful addition though we must add that only in very exceptional cases such a power should be exercised. ( 22 ) THIS power being rather of an unusual nature is entrusted only to the higher echelons of judicial service namely a court of session and the High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offences in respect of which the power can be exercised by the appropriate Court. This extra-ordinary power conferred to the High Court and the sessions Court as indicated earlier has been taken away by the introduction of Section 18 in the new Act, that is, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989. This 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 Scheduled Tribes. ( 23 ) THE other principles of incorporation is that the special enactment will prevail over the general, in other words, the Special Act must prevail in respect of the power of High Court to entertain an application under Section 438 Cr. P. C. Court may have its own views on a particular matter, but it cannot question the wisdom of parliament. The judicial process does not lay, where the Parliament has exclusive jurisdiction. P. C. Court may have its own views on a particular matter, but it cannot question the wisdom of parliament. The judicial process does not lay, where the Parliament has exclusive jurisdiction. ( 24 ) WHEN Section 18 of the Act was challenged on the ground that it violates the rights granted under Articles 14 and 21 of the Constitution, the Division Bench of this Court held in Raju Gounder and four others v. The Union of India. Etc. and two others1, as follows:it may be pointed out here that the offenders under the Act and the offenders under the other Penal Laws of the country fall under different categories. As such there is no comparison, and they cannot be grouped in one class. That being so, there is no question of any unreasonable classification when the offenders do not fall in the same category. The Act has been passed, as already pointed out, after having realised that the provisions contained in the Indian Penal Code and the Protection of Civil Rights Act, 1955, are not adequate and the existence of these provisions have not in any way proved to deter the crimes. Hence, we are of the view that the offenders under the other penal laws cannot at all be classified as falling in the category of offenders under the Act. ( 25 ) THE Apex Court also had an occasion to deal with the similar point in State of Madhya Pradesh v. R. K. Balothia2 and held that these Offences constitute a separate class and cannot be compared with the offences under the Penal Code, and that, therefore, Section 18 of the said Act cannot be considered as violative under Article 14 of the Constitution. It is quite relevant to extract a portion of the observation made by the Apex Court, in this context: It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class The offences therefore, which are enumerated under Section 3 (1) arise out of the practice of Untouchability. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class The offences therefore, which are enumerated under Section 3 (1) arise out of the practice of Untouchability. It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18, which is before us. The Exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the said Act has to be viewed in the context of the prevailing social conditions, which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in tile prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection, we may refer to the statement of objects and reasons accompanying the Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Bill, 1989, when it was introduced in parliament sets out the circumstances surrounding the enactment of the said Act and points to the evil, which the statute sought to remedy. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests of late, there has been an increase in the disturbing trend of commission of certain atrocities like making, the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes Special legislation to check and deter crimes against them committed by nonscheduled caste and nonscheduled tribes has, therefore, become necessary. T The above statement graphically describes the social conditions, which motivated the said legislation. T The above statement graphically describes the social conditions, which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled 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. We have next to examine whether Sec. 18 of the said Act violates, in any manner, Article 21 of the Constitution which protects the life and personal liberty of every person in this country. Article 21 enshrines the right to live with human dignity, a precious right to which every human-being is entitled; those who have been, for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. In the light of the recommendation of the Law Commission in its 41st Report, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is seasonally 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. Also, anticipatory bail cannot be granted as a matter of right. It is seasonally 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. TI ( 26 ) IN the light of the relevant sections of the Act and Code of Criminal Procedure and the decisions of the Division Bench of this Court and the Apex Court and looking into the historical background relating to the practice of untouchability and the social attitude which led to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is every justification for an apprehension that if the benefit of anticipatory bail is made available to the persons, who are alleged to have committed the offences under the Act, and there is every likelihood of their misusing their liberty, while on anticipatory bail, to terrorise the victims and prevent proper investigation. It is, in this context. Section 18 has been incorporated in the Act. ( 27 ) TO reiterate, the offences, which are enumerated under section 3 of the Act, are the offences, which deter the members of the Scheduled Castes and Scheduled Tribes, in the ere of society and prevent them from living a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. ( 28 ) THEREFORE, I am of the view, in the light of restrictions put on the jurisdiction of this Court under Section 18 of the Act, these petitions under Section 438 of the Code of Criminal Procedure cannot be maintained and the privilege conferred under section 438 of the Code is not applicable to persons alleged to have committed the offences under section 3 (1) of the Act. Therefore, all the above applications are liable to be dismissed as not maintainable. ( 29 ) HOWEVER. I may add that if the allegations contained in the complaint or other statements or in the charge sheet, do not constitute the offences under the Act, it is open to the petitioners to maintain these petitions for seeking relief of anticipatory bail. Therefore, all the above applications are liable to be dismissed as not maintainable. ( 29 ) HOWEVER. I may add that if the allegations contained in the complaint or other statements or in the charge sheet, do not constitute the offences under the Act, it is open to the petitioners to maintain these petitions for seeking relief of anticipatory bail. Merely, because a case has been registered under the Act, in my view, the provisions of Section 438 of the Code cannot be said to be inapplicable in each and every case. If the allegations make out a prime-facie case under Section 3 or for that matter Sections 4 and 5 of the Act. the jurisdiction to entertain an application under Section 438 is definitely ousted as discussed earlier. Where, however, the allegations do not make out any prime facie offences punishable under any of the provisions of the Act, the bar under section 18 is inapplicable and the provision of section 438 of the Code can be availed of. At the same time, the appreciation with reference to the truth or otherwise of the allegations may not be permissible. In these cases, the counsel have never argued about the lack of allegations so as to attract the ingredients of the offences under the Act. They simply argued that the petitioners have been falsely implicated and they are entitled to anticipatory bail, in view of the earlier unreported orders passed by this Court, indicated earlier. This submission cannot hold good, since these orders do not refer Section 18 of the Act. ( 30 ) AS I have discussed in the earlier paragraphs. I feel that I am bound by Section 18, which has been introduced by the legislature, especially when its legislative competence has been approved by the Apex Court. So, in view of the observations above made, all the petitions are liable to be dismissed. ( 31 ) BEFORE parting with the case. I am constrained to refer about the submission made by the counsel that invariably this act has been misused by the upper caste people by setting up some member of Scheduled Caste or Scheduled Tribe to file a false complaint against their enemies, some are respectable and some are Government Servants, in order to put them in jail, thereby dishonouring their image in the public and ensuring their stipendium from the Government service. Though at this stage, this Court cannot decide about the mala fide of vested interest to file a false complaint through the poor and ignorant member of the, Scheduled Caste and Scheduled Tribe people, it could not be said, in view of the prevailing conditions, this submission has no basis at all. This was the reason, why Section 438 Cr; P. C. has been introduced, in order to save the persons, who are respectable from being dishonoured. But, this aspect cannot be taken into account in respect of the offences under the S. C. and S. T. Act as discussed earlier. However, this could be taken into consideration by the trial Court, while considering the bail applications. ( 32 ) IT is uniformly submitted by all the counsel appearing for the petitioners that even if the petitioners surrender before the trial Court, the bail applications are not being disposed off then and there and the Courts below invariably take minimum one week to dispose of the bail application, in which event, the petitioners including the old men, women, Government servants have to suffer incarceration in the jail, thereby they are subjected to irreparable loss, damage and hardship, which could not be remedied. Therefore, I deem it fit to give a direction to the lower Courts (Special Courts) to take into consideration of this aspect and dispose of the bail applications immediately, prefer ably within a day or two. ( 33 ) TO consider the bail application, the lower Court has to see two contingencies, one is likelihood of fleeing from justice and another is, tampering with the investigation or witnesses. This could be decided on the basis of the F. I. R. and other records available in the Court and also after hearing the Assistant Public Prosecutor, who is always expected to be present in the Court. Therefore, in the appropriate cases, the lower Court could consider the surrender petition and bail application and dispose of the same after hearing the Assistant Public Prosecutor, either by granting bail on the same day or to remand him to the judicial custody. ( 34 ) THE petitioners are at liberty to surrender before the respective Courts, in which the first information report is pending and file a surrender petition as well as regular bail applications. ( 34 ) THE petitioners are at liberty to surrender before the respective Courts, in which the first information report is pending and file a surrender petition as well as regular bail applications. The lower Courts, on their surrender, shall consider the submissions, for bail and pass orders without giving any room for criticism that they are being detained in the custody unnecessarily enabling the vested interest to achieve the purpose against the petitioners. But, this observation should not be considered to be a licence for granting bail invariably to all the accused on the same day on their surrender. Each case has got its own merits. Therefore, considering the various situations, status and nature of the allegations, the trial Court shall try to dispose of the bail applications then and there, without any delay. ( 35 ) WITH the above observations, these petitions are dismissed. Application dismissed.