Judgment :- This Criminal Petition is filed by the petitioner-de facto complainant, under Section 439 (2) Cr.P.C. (for short 'the Code') to cancel the anticipatory bail order, dated 25-11-2008, in Crl.M.P.No.180 of 2008 in Cr.No.164 of 2008 of Balaji Nagar Police Station, Nellore, granted by the Special Judge for Trial of Offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act')-cum-V Additional District and Sessions Judge, Nellore. 2. The learned Special Judge passed the following order: "Upon considering the contentions of both the sides and on perusal of the record, there are civil disputes between the de facto complainant and accused family. On perusal of C.D., the prosecution already examined L.Ws. 1 to 5 and recoded their statements. In view of the completion of substantial investigation and the petitioner being house wife, she is to be released on bail in the event of her arrest. In the result, the petitioner is directed to surrender before learned V A.J.F.C.M. Nellore within one week from the date of this order and on such surrender, the learned Magistrate is directed to release the petitioner on bail on her executing a bond for Rs.10,000/- with two sureties for a like sum each to the satisfaction of the learned Magistrate." 3. Learned counsel appearing for the petitioner contended that in view of bar under Section 18 of the Act, anticipatory bail cannot be granted and Section 438 of the Code does not contemplate to give such a direction and hence, he prays to set aside the impugned order. 4. On the other hand, learned senior counsel appearing for the 2nd respondent contended that as there is no material prima facie suspecting the accused having committed an offence punishable under Section 3 (1)(x) of the Act, the bar under Section 18 of the Act does not come into play and therefore, the trial Court rightly granted anticipatory bail to the 2nd respondent herein on her surrender. 5. There cannot be any dispute that Section 439 of the Code comes into operation only when a person is in custody, whereas anticipatory bail is granted in anticipation of arrest in non-bailable case. Section 437 of the Code deals with the power of Courts other than High Court or Court of Sessions in the matter of granting or refusing bail in non-bailable offence. Section 437 of the Code deals with the power of Courts other than High Court or Court of Sessions in the matter of granting or refusing bail in non-bailable offence. Section 437 of the Code is concerned with the Court of the Magistrate, High Court and Court of Sessions being expressly excluded. Whereas Section 438 of the Code has been conferred only on the High Court and Court of Sessions for directing a person on bail previous to his arrest, what is commonly known as anticipatory bail, imposing such conditions as the Court thinks fit including the conditions laid down in cls. (i),(ii),(iii) and (iv) of sub-section (2) 6. Sub-section (1) of Section 439 of the Code confers power on the High Court or Court of Sessions, (a) to grant bail to a person in any case without condition or with condition in certain specified offences and subject to one procedural limitation imposed by the proviso in respect of certain specified offences, and (b) to set aside or modify any condition imposed by a Magistrate while granting bail. Sub-section (2) gives power to the High Court or Court of Sessions to cause any person who has been admitted to bail by itself or by any criminal court under this chapter to be re-arrested and committed to custody. 7. The powers of the High Court or Court of Sessions under Section 439 of the Code are considerably wider than the powers of the Magistrate in Section 437 of the Code, for the reason that the limitation in Section 437 of the Code and the distinction drawn between non-bailable offences punishable with death or life imprisonment and other non-bailable offences with lesser penalty are non- existent in Section 439 of the Code; nor is there the condition that bail shall be refused if there appear reasonable grounds for believing that the accused has committed an offence falling under the first category. Therefore, the powers given in Section 439 of the Code are unfettered by any limitation other than that which controls all discretionary powers vested in a Court. There cannot be any dispute that such discretionary powers shall be exercised judicially and on well-established principles. No person accused of an offence can move the Court for bail under Section 439 of the Code unless he is in custody. There cannot be any dispute that such discretionary powers shall be exercised judicially and on well-established principles. No person accused of an offence can move the Court for bail under Section 439 of the Code unless he is in custody. When certain procedure is prescribed in grant of bail or refusal, the same has to be followed. The Court below has no power to abridge, deface, or defile or short cut the mandatory provisions of law. Lower Court has no inherent power to pass any order contrary to law. The order impugned revealed virtually granting regular bail as if under Section 439 of the Code, which cannot be exercised as the 2nd respondent was not in custody. Such an order cannot be passed exercising the jurisdiction under Section 438 of the Code. 8. On this aspect, it is pertinent to refer to a decision of Constitution Bench of Supreme Court reported in GURBAKSH SINGH SIBBIA V THE STATE OF PUNJAB ( AIR 1980 SC 1632 ), wherein it was held thus: "Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has reason to believe that he may be arrested for a non-bailable offence. The use of the expression reason to believe shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere fear is not belief for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he maybe arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under S.437 of the Code, as and when an occasion arises. Such, a course will defeat the very object of Section 438. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S.438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly,, anticipatory bail can be granted even after in F.I.R. is filed, so long as the applicant has not been arrested. Fifthly, the provisions of S.438 cannot be invoked after the arrest of the accused. The grant of anticipatory bail to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested are concerned. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested." In view second clause of the aforesaid mentioned decision, the learned Judge ought to have applied his own mind to the question and decided whether case has been made out for granting such a relief. 9. The case is registered against the 2nd respondent herein under Section 3 (1)(x) of the Act. It is alleged that on 13-10-2008 at about 8 P.M. the 2nd respondent herein abused the de facto complainant in the name of his caste. 9. The case is registered against the 2nd respondent herein under Section 3 (1)(x) of the Act. It is alleged that on 13-10-2008 at about 8 P.M. the 2nd respondent herein abused the de facto complainant in the name of his caste. Section 3 (1)(x) of the Act reads thus: "3.Punishments for offences of atrocities:- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) to (ix) ....... (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. 10. Section 18 of the Act provides that 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. In view of the said provision, granting of anticipatory bail was unjust, illegal and perverse. Section 18 of the Act specifically says that the provisions of Section 438 of the Code are not applicable to the persons committing the offences under the Act. Therefore, in view of bar under Section 18 of the Act, the trial Court ought to have dismissed the application. Without deciding whether the 2nd respondent herein is entitled for anticipatory bail or not, the trial Court directed her to surrender before the Magistrate Court and on such surrender, she shall be released on bail. It would be a different matter when no prima facie offence under Section 3 (1)(x) of the Act is made out. Therefore, it was held in Gurbaksh Singh Sibbia's case (1supra) that the whole of section 437 of the Code is riddled and hedged in by restrictions on the power of certain courts to grant bail. It was also held in the above decision thus: "In this process one shall have overlooked that whereas the power under Section 438 (1) can be exercised if the High Court or the Court of Sessions thinks fit to do so. Section 437 (1) does not confer the power to grant bail in the same wide terms" 11. It was also held in the above decision thus: "In this process one shall have overlooked that whereas the power under Section 438 (1) can be exercised if the High Court or the Court of Sessions thinks fit to do so. Section 437 (1) does not confer the power to grant bail in the same wide terms" 11. No doubt, under Section 439 of the Code, the High Court or Court of Sessions may direct any person the accused of an offence and in custody be released on bail and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. This power can be exercised by the Court of Sessions or High Court when the accused is in custody. Therefore, the trial Court ought not to have granted bail to the 2nd respondent upon surrendering before the V Addl. Judl. First Class Magistrate, Nellore, within one week and on such surrender, she shall be released on bail on her executing a bond for Rs.10,000/- with two sureties each. Such an order is incorrect, perverse and illegal in as much as such a procedure is not contemplated under the Code. There cannot be any dispute that subordinate Courts have no inherent powers except as provided in the Code. Whenever an application is filed under Section 438 of the Code, it has to be decided in terms of Section 438 of the Code. As seen from the impugned order, it can safely be said that the learned Special Judge had taken the role of the Magistrate in granting bail on surrender. There was a clear distinction with regard to grant of bail under Sections 437 and 438 of the Code as pointed out in Gurbaksh Singh Sibbia's case (1 supra), which reads thus: "The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest." Therefore, the impugned order passed by the learned Special Judge is illegal and perverse and hence, the same is liable to be set aside. 12. 12. Accordingly, the Criminal Petition is allowed setting aside the order, dated 25-11-2008, in Crl.M.P.No.180 of 2008 in Cr.No.164 of 2008 of Balaji Nagar Police Station, Nellore, passed by the Special Judge for Trial of Offences under the SCs & STs cases-cum-V Additional District and Sessions Judge, Nellore.