ORDER : Petitioners being accused Nos. 1 & 2 in Crime No.104/2020 registered by the Srinivaspura Police for offence p/u/ss 323 & 506 r/w 34 and also under section 3(1)(r)(s) of SC & the ST Prevention of Atrocities Act, 1989 (hereafter ‘Atrocities Act’) have presented this petition under section 438 of Cr.P.C., 1973, for availing anticipatory bail, apprehending their arrest & detention. 2. After service of notice, the State has entered appearance through the Addl. Govt. Advocate; the second respondent – complainant despite service of notice through the police has chosen to remain absent & unrepresented. 3. Learned counsel for the petitioners submits that petitioners are innocent of the allegations of the commission of the offences; they are law abiding citizens, having the avocation of agriculture; there is absolutely no material for invocation of the provisions of the Atrocities Act; the complainant is moving heaven & earth to secure their arrest & detention by false implication; they are ready & willing to abide by any condition that may be imposed by this Court and therefore, petitioners should be favoured with Advance Bail. 4. Learned Addl. Govt. Advocate vehemently opposes the prayer for grant of Advance Bail contending that invocation of provisions of Section 438 has been excluded by the Parliament by enacting Sections 18 & 18A in the Atrocities Act; grant of anticipatory bail is a matter of discretion which needs to be exercised keeping in view the laudable object of the Act; investigation is yet to be accomplished; lastly, he contends that nothing comes in the way of petitioners surrendering before the jurisdictional session’s Court for seeking a regular bail; so contending, he seeks dismissal of the petition. 5. Having heard the learned counsel for the parties and having perused the petition/police papers, this Court is inclined to grant Advance Bail to the petitioners for the following reasons and subject to the conditions stipulated hereunder: (a) admittedly, the FIR is lodged on 14.05.2020 at 23.45 hrs. 5. Having heard the learned counsel for the parties and having perused the petition/police papers, this Court is inclined to grant Advance Bail to the petitioners for the following reasons and subject to the conditions stipulated hereunder: (a) admittedly, the FIR is lodged on 14.05.2020 at 23.45 hrs. i.e., during the dark hours of the mid night and also when the penumbra of COVID19 Lockdown was obtaining; except the accused persons, no other person is stated to have been present at the scene of offence; thus, at this stage, there is no reason to presume the presence of any third person who saw the commission of the offences or heard the prescribed words that were allegedly cast denigrative; (b) the vehement submission of the learned Addl. Govt. Advocate that when accused persons Are plural in number, the presence of onlooker is not an essential ingredient of the offence is bit difficult to sustain; the charging provisions of the Atrocities Act namely, Section 3(1)(r) & (s) read as under: “(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;” The expression employed in the above clauses namely “in any place within public view” presupposes the presence of a person other than the accused persons who are alleged to have committed the predicated offence with common intention (Section 34 IPC); reading the charging provisions otherwise would strain their text & context; (c) admittedly the second respondent – complainant and the petitioners belong to two different villages, which fact is obviated by the allegation in the FIR that the latter threatened the former against visiting their village; therefore, at this stage, there is no material to presume that petitioners knew of the social status of the complainant, which is a sine qua non for invoking the charging provision of Atrocities Act; (d) learned counsel for the petitioners is not fair in quoting at Paragraph No.10 of the petition, the decision of the Apex Court in DR. SUBHASH KASHINATH MAHAJAN VS. SUBHASH KASHINATH MAHAJAN VS. STATE OF MAHARASHTRA (2018) 6 SCC 454 ) inasmuch as, the subject ratio of the said decision is nullified not only in Review but also by the Parliamentary Amendment Act 27/2018 w.e.f. 20.08.2018; (e) the Apex Court in PRATHVI RAJ CHAUHAN VS. UNION OF INDIA (2020 SCC ONLINE SC 159), having surveyed the law including the amendment mentioned above has observed at Paragraph No.10 as under: “Concerning the applicability of provisions of section 438 Cr.P.C, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions.” Thus, the right to Advance Bail otherwise availing to a person under Section 438 of Cr.P.C. cannot be defeated by merely and mechanically invoking Section 18 & 18(A) of the Atrocities Act; the complaint needs to disclose a prima facie case for invoking its charging provisions; the version of the police as to invocability of the charging provisions of the Act may not always have presumptive value; courts need to scrutinize police view, keeping in mind the realities of life; the case made out by the petitioners falls within the above dicta of the Apex Court; (f) learned Addl. Govt. Advocate strenuously contended that the charging provisions of Atrocities Act become invokable when a person not belonging to Scheduled Caste or Scheduled Tribe commits any offence against a member of Scheduled Caste or Scheduled Tribe, punishable under the provisions of IPC or other penal law, is bit difficult to agree with; no such penal provision is brought to the notice of this Court to substantiate the said contention; Mr. Showry, learned Addl. Govt. Showry, learned Addl. Govt. Advocate is not justified in banking upon Section 3(2)(v) of the Atrocities Act which reads as under: “(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property (knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member), shall be punishable with imprisonment for life and with fine;” The said provision is not invokable since the IPC offences alleged against the petitioners apparently do not attract the punishment of imprisonment for ten or more years; (g) lastly, the other acts alleged against the petitioners may amount to offences punishable u/s.323 & 506 of IPC; these offences are not punishable with death or life imprisonment; added to this, petitioners have undertaken to fully cooperate in the investigation process apart from abiding by the conditions that may be imposed by this Court; the oft quoted slogan of Criminal Jurisprudence “Bail is a rule and jail is an exception”, extends to Anticipatory Bails too; the fact that the investigation is not yet completed cannot be treated as the China Wall against a petition for the advance bail; a diction to the contra may defeat the very object of Sec.438 of Cr.P.C; that apart, the arrest & detention of persons in overcrowded jails may expose them to the hazard of infection of COVID – 19 Pandemic, as rightly contended by the counsel for the petitioners. In the above circumstances, this petition succeeds; petitioners are ordered to be admitted to bail if & when apprehended in connection with Crime No. 104/2020 registered by the Srinivaspura Police subject to following conditions: (i) each of the petitioners shall execute a Personal Bond for a sum of Rs.50,000/(Rupees fifty thousand) only with one surety for the like-sum; (ii) petitioners shall cooperate with the investigation/inquiry at all times and appear before the jurisdictional police if & when so directed; (iii) petitioners shall not leave the jurisdictional limits of the trial Court without its prior permission; (iv) the petitioners shall not tamper the evidence or influence/deter the witnesses nor shall they do anything prejudicial to peace and order in the civil society; (v) it is open to the jurisdictional police or the complainant to seek cancellation of bail if & when petitioners commit breach of any of the above conditions.