JUDGMENT : S.K. Mishra, J. - I have heard learned counsel for the petitioners and the learned Addl. Government Advocate. 2. This order arises out of an application under Section 438 of the Code of Criminal Procedure, 1973, hereinafter referred as the 'Code', seeking anticipatory bail as the petitioners are apprehending arrest as per the non-bailable warrant of arrest issued by the learned S.D.J.M., Anandapur for the alleged commission of offences under Sections 294, 323, 354(1), 448 and 506/34 of the I.P.C. and Section 3 (x)(i) (sic) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, hereinafter referred to as the "S.C. and S.T. (P.A.) Act", after taking cognizance of the aforesaid offences. 3. A careful perusal of the records, especially, the complaint petition, the initial statement and the order passed by the learned S.D.J.M., Anandapur on 18.11.2015 taking cognizance of the offences as aforesaid and issuing summons as well as non-bailable warrant against the petitioner, in exercise of power under Section 87 of the Code. This Court finds that one Kali Jena has lodged a private complaint before the learned S.D.J.M., Anandapur, inter alia, alleging that on 04.05.2015 at about 12 noon, while she was inside the house, the accused persons entered into the compound of the house and locked it. While the complainant restrained them, the accused persons scolded her by saying "Sali, Bedhei, Ghodagehi". They caused hurt to her, tore her wearing apparels and assaulted her by means of wood pieces. The accused persons also squeezed her breast and addressed her by saying "Tu Paluni Tote Chuinle Jati Jiba" and threatened to kill her. Due to such use of force by the accused persons, the complainant fell down. It is further borne out from the records that accused Balia Jena was instigating the accused persons to kill her. She has specifically stated that accused Bula Hazari sat over her chest and accused Kunala Jena caused hurt to her thigh. Hearing hullah, some of her co-villagers arrived there and then the accused persons left the spot. 4. Then the complainant went to Anandapur Police Station and lodged a report, but the Police advised her for treatment in the hospital, but did not register any case, so she has filed the complaint case. Hearing hullah, some of her co-villagers arrived there and then the accused persons left the spot. 4. Then the complainant went to Anandapur Police Station and lodged a report, but the Police advised her for treatment in the hospital, but did not register any case, so she has filed the complaint case. After recording her statement under Section 200 of the Code, the learned Magistrate has also recorded the statements of other witnesses, namely; Gura Jena, Kalpana Das and Anama Jena under Section 202 of the Code and finding a prima face case, took cognizance of offence as mentioned above against the accused persons. The learned Magistrate has further observed that as out of the alleged offences, the offence punishable under Section 3(x)(i) (sic) of the S.C. and S.T. (P.A.) Act is triable by the Court of Session, he deemed it proper to issue warrant as well as summons against the accused persons for production in exercise of power under Section 87 of the Code. 5. It is apparent from the records that the order passed by the learned S.D.J.M. is erroneous on several aspects. Firstly, if it is held by the learned S.D.J.M. that the case is triable by the Court of Session then Section 202 enquiry of the complainant should have also been made. In other words, the complaint's statement under Section 202 of the Code has not been recorded. Secondly, it is seen that there is no provision of Section 3(x)(i) of the S.C. and S.T. (P.A.) Act, perhaps the learned Magistrate meant by such an order that he took cognizance of the Section 3(1)(x) of the S.C. and S.T. (P.A.) Act. Moreover, from the records it is apparent that the accused persons who have used vulgar words dispersing the caste of the complainant are not scheduled caste persons, so offence under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act is made out against them. But the learned Magistrate has taken cognizance for the offence under Section 3(x)(i) of the said Act. Thirdly, the learned Magistrate has issued warrant against the petitioners only because the case is triable by the Court of Session in exercise of powers conferred under Section 87 of the Code. Such reasoning is erroneous. But the learned Magistrate has taken cognizance for the offence under Section 3(x)(i) of the said Act. Thirdly, the learned Magistrate has issued warrant against the petitioners only because the case is triable by the Court of Session in exercise of powers conferred under Section 87 of the Code. Such reasoning is erroneous. The Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 has held that civilized countries have recognised that liberty is the most precious of all human rights. The American Declaration of Independence, 1776, French Declaration of Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of the Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. The Apex Court held that issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means infringement of precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrant. The Apex Court further held that non-bailable warrant should be issued to bring a person to court when summons or bailable warrant would be unlikely to have the desired result. The examples are that (i) it is reasonable to believe that the person will not voluntarily appear in court; or (ii) the police officer is unable to find the person to serve with summons; or (iii) it is considered that the person could harm someone if not take to custody immediately. The Supreme Court in the aforesaid case further held that as far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrant should be preferred. The warrant either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to extremely serious consequences and ramifications which ensue on issuance of warrant. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. It further held that the power being discretionary must be exercised judiciously with extra care and caution. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. It further held that the power being discretionary must be exercised judiciously with extra care and caution. The court should properly balance both personal liberty and societal interest before issuing warrant. There cannot be any straitjacket formula for issuance of warrant but as a general rule, unless an accused is charged with the commission of offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrant should be avoided. 6. Be that as it may, now the question arises, at first, whether the petitioners are entitled to anticipatory bail. Learned counsel for the petitioners relies upon the case of Ratikanta Ray v. State of Odisha, (2015) 61 OCR 217 and contents that the offence under Section 3(1)(x) of the S.C. and S.T. (P.A.) Act is not made out against the petitioners in this case as the occurrence took place inside the compound of the house of the complainant and not in a public view. Firstly, it is seen that in the complaint petition, the complainant alleges that there are some witnesses present there at the time of occurrence. So, it cannot be said that the occurrence took place inside a private premises and not in presence of public. There is also material available on record that the accused persons have used force to outrage the modesty of the complainant. So offence under Section 3(1)(xi) S.C. and S.T. (P.A.) Act appears to have been made out against the petitioners. Moreover, the offence under Section 3(1)(xi) of the S.C. and S.T. (P.A.) Act need not be committed in a public view. Even if it is committed inside a house, the offence is made out. Section 18 of the S.C. and S.T. (P.A.) Act provides a bar for entertaining the application for anticipatory bail in a case where the offence is made out under the provisions of the S.C.& S.T. (P.A.) Act. Therefore, anticipatory bail cannot be granted to the petitioner. 7. Even if it is committed inside a house, the offence is made out. Section 18 of the S.C. and S.T. (P.A.) Act provides a bar for entertaining the application for anticipatory bail in a case where the offence is made out under the provisions of the S.C.& S.T. (P.A.) Act. Therefore, anticipatory bail cannot be granted to the petitioner. 7. However, certain salient features have come up before this Court, which prompted the Court to make the following observations : (i) When a case is triable by a Court of Session, the Magistrate taking cognizance need not issue N.B.W. at the first instance, if it is within the competence to take cognizance granting bail to the accused persons. An example can be given to the effect that Section 201 of the I.P.C. is bailable in nature and triable by the Court of Session. In such case, as the offence is triable by the Court of Session, the rhetoric is, whether the Magistrate should issue N.B.W. against the accused. The answer is no. At the juncture, it is appropriate to examine the scope and ambit of Section 87 of the Code. Section 87 of the Code reads as follows : "87. Issue of warrant in lieu of or in addition to, summons :- A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest : (a) If, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) If at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure." For the purpose of this case, clause (a) is relevant. Indeed the Magistrate is empowered to issue summons, but before issuing summons or after issuing of the summons but before the time fixed for appearance, the Court sees reason to believe that the accused has absconded or concealed or will not obey the summons. Indeed the Magistrate is empowered to issue summons, but before issuing summons or after issuing of the summons but before the time fixed for appearance, the Court sees reason to believe that the accused has absconded or concealed or will not obey the summons. Thus, if the Magistrate has jurisdiction to issue warrant in addition to issue summons, if material is placed before him and on the basis of such material he finds that the petitioner has absconded or will not be obeying the summons issued against him, only then, he can issue warrant of arrest along with the summons under clause (a) of Section 87 of the Code. Either of the two conditions of Section 87 of the Code is not specified in this case. So, the order of issuing warrant does not appear to be correct in this case. (ii) Third important aspect in this case is, whether the learned S.D.J.M. has jurisdiction to allow the bail application of the petitioners on their being produced before the Court or on their appearance. Section 437 of the Code deals with the power of the Magistrate to grant bail. For the purpose of this case, Sub-Section (1) of Section 437 of the Code is quoted below : "437. Section 437 of the Code deals with the power of the Magistrate to grant bail. For the purpose of this case, Sub-Section (1) of Section 437 of the Code is quoted below : "437. When bail may be taken in case of non-bailable offence :- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but : (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognisable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognisable offence punishable with imprisonment for three years or more but not less than seven years : Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm : Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason : Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court : Provided also that no reason shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor. xxx xxx xxx" 8. xxx xxx xxx" 8. A bare reading of clause (i), which is relevant for the purpose of this case, is that the Magistrate has no jurisdiction to grant bail to a person, if there appears reasonable ground for believing that he has been guilty of the offence punishable for death or imprisonment for life. Clause (ii) is not relevant for the purpose of this case. So that aspect need not be examined. Thus, a proper interpretation of this provision reveals that the Magistrate before whom an accused is produced and there appears reasonable ground for believing that he has been guilty of an offence not punishable for the death or imprisonment for life, can grant him bail. However, the fourth proviso to Sub-Section (1) of Section 437 of the Code mandates that if a person is brought before a Magistrate with the allegation that he has committed an offence which is punishable with death, imprisonment for life or imprisonment for seven years or more, the person be released on bail without giving an opportunity of hearing to the Public Prosecutor. 9. Sections 3(1)(x) and 3(1)(xi) of the S.C. and S.T. (P.A.) Act are punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. So, an interpretation of Section 437(1) clause (i) leaves no doubt in the mind of this Court that even when an accused is produced before the Magistrate on the accusation of committing an offence as stated above, still the Magistrate has jurisdiction to grant him bail. Once a person is accused of an offence which is not punishable for terms of imprisonment exceeding 7 years, then the mandate laid down under Section 41 (1) clause (ii) shall come into play and the Magistrate is under an obligation to have a limited judicial scrutiny in terms of the observation and direction given by the Supreme Court in the case of Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756 and he shall authorize the detention of the accused, who is forwarded to the Court for alleged commission of offence, which is punishable with terms of imprisonment not exceeding seven years and only if the conditions enshrined under Clauses (a) to (e) of the aforesaid Section, then only, he can be remanded to judicial custody. 10. 10. Having examined the various provisions of law and discussions resorted to above, this Court is of the opinion that anticipatory bail cannot be granted to the petitioners. Further, the needs 'of justice will be sub served if the petitioners are granted liberty to surrender before the learned Magistrate within 21 working days and pray for bail, if so advised. In such event, it shall be the duty of the learned SD.J.M., Anandapur to take up the application for bail filed by the petitioners in proper perspective as discussed in the body of this order. With the aforesaid observation, the application for anticipatory bail is disposed of. 11. Urgent certified copy of this order be granted on proper application. Final Result : Disposed Of