K.S. Kumaran, J.

1. Second respondent-Jaspal Singh lodged a complaint before the learned Judicial Magistrate 1st Class, Chandigarh under Section 3(x), 3 (xi) and (xv) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (hereinafter referred to as the) against the petitioners herein wherein the following material allegations are found :-

2. The complainant belongs to the Schedule Caste known as "Chura" and he is working as a servant with Gurpartap Singh Gill, whose family is residing in House No. 15, Sector 3A, Chandigarh. The accused (petitioners herein) are aware of the above facts.

On 19.5.2000 at about 7 p.m., the complainant who was washing the car, went to the water tap installed in the front lawn of the house and opened it for the purpose of taking water in a bucket and to wash the cloth meant for cleaning the car. The moment the complainant touched the water tap and started opening the same, all the three petitioners who were standing in the lawn, started shouting saying that "You Chura have defiled the water tap". The 1 st petitioner said, "You Chura of lower caste", and the second petitioner said, "You Chura spoiled our religion", while the 3rd petitioner said, "You Chura, you have no business to take water from the said tap". When the complainant asserted his right to take water from the tap, the 3rd petitioner-Neeraj Sharma tried to hit him with a broom which was in her hand.

3. The alarm raised by the complainant attracted Jit Singh, Gurcharan Singh and Naresh Sharma to the place and in their presence, the petitioner repeated the objectionable words by saying that this "Chura" has defiled their religion by touching and taking water from the water tap. They also remarked that they belong to high caste, being Brahmins, and the very presence of the "Chura" in the house has defiled their religion. The 1st petitioner remarked that even the shadow of the "Chura" in the house is enough for defiling their religion. They threatened that they will force the complainant to leave the house so that their religion may not be defiled further and that they will file a false complaint against the complainant. The petitioners have done so with the common intention to insult, humiliate, intimidate, assault and use force for making the complainant to leave the house.

4. The complainant examined himself, as also Gurcharan Singh and Jit Singh as witnesses. Taking into consideration the materials placed before him, the learned Judicial Magistrate 1st Class, Chandigarh held that there are sufficient grounds to proceed against the petitioners under Sections 3(x) and 3(xv) of the, and directed the petitioners to be summoned accordingly.

5. The petitioners have, therefore, approached this Court under Section 438 read with Section 482 Cr.P.C. seeking anticipatory bail. On notice, the second respondent has entered appearance through counsel.

6. I have heard the counsel for both the sides and perused the records on file.

7. The learned counsel for the petitioners contends that there is a dispute between the petitioners on the one hand and Santokh Singh, Gurpartap Singh and Daljit Kaur, on the other, and that the false complaint has been lodged at the instance of these persons through their employee, the second respondent herein, with the ulterior motive to dispossess the petitioners from the house in their possession. The petitioners produced certain documents to support their contention that there are disputes between them on the one hand and Santokh Singh and others on the other, both in Courts as well as by way of complaints to the police. Therefore, the learned counsel for the petitioners contends that the petitioners are entitled to be released on bail.

8. But the main contention of the 2nd respondent is that Section 18 of thebars a person from claiming bail in anticipation of arrest with regard to the offences under this Act and, therefore, the present petition for bail in anticipation of arrest itself is not maintainable and is liable to be dismissed.

9. The learned counsel for the petitioners, on the other hand, relies upon a judgment of this Court in Criminal Miscellaneous No. 13882-M of 1999 Dr. Varinder Mohan v. State of Punjab decided on 27.5.1999, granting anticipatory bail with reference to an offence allegedly committed by the petitioners therein under Section 3 of the. That was a case where a lady member of a Municipal Council claimed that while she was attending the meeting of the Municipal Council in the office of the Municipal Council, there was a discussion going on and a lady made some remark imputing unchastity to her (Veena Rani) and Dr. Varinder Mohan, the petitioner therein, said that these "Churas" indulge in it and have polluted the atmosphere. Some objection as has been taken in this case, was taken there also, about the application for anticipatory bail being bared by Section 18 of the. The Honble Single Judge relying upon the decisions of certain High Courts, held that if an offence has been registered with the police, with the label of the, the Court cannot be a mute spectator and refuse anticipatory bail holding that the grant of the anticipatory bail is barred under Section 18 of the. The Honble Single Judge also held that the Court has the duty to scrutinise and examine the facts to find out whether an offence under this Act has been committed or not. The Honble Single Judge also observed that debatable issues are likely to arise during the trial and, therefore, it is debatable whether the bar of Section 18 of thewould or would not be attracted eventually on the conclusion of the trial.

10. The learned counsel for the petitioners also relied upon another decision of the Honble Single Judge of this Court in Phulla Dass v. State of Punjab 1997(3) RCR 213 (P&H) : , wherein this Court held as follows :-

"It is obvious from aforesaid that a case has been registered under the. A person has no right to claim anticipatory bail. There is a specific embargo because of Section 18 of the. Section 438 of the Code of Criminal Procedure is not available to persons committing offences under the.

In that event it had been argued that this Court in any case should use its inherent powers and the petitioner may be admitted to anticipatory bail. Reliance was placed on the Division Bench decision of the Delhi High Court in the case of Capt. Satish Kumar sharma v. Delhi Administration 1991(1) Cri.L.R. 480 : 1991 Cri.L.J. 950. The Division Bench of that Court held that against threatened or imminent violation of fundamental right of personal liberty, petition under Section 226 of the Indian Constitution is maintainable.

Indeed there is no controversy with the said proposition. But when there is a specific bar as noted above, under Section 18 of the Act, such a power would only be used in exceptional cases. If the Court comes to the conclusion that the process of law is being misused, the petition is totally mala fide and vexatious, on the basis of which first information report is recorded, the Court would certainly exercise its inherent powers and even powers under Article 226 of the Constitution. But it would certainly not be exercised to defeat specific provisions namely Section 18 of the."

11. Another decision relied upon by the learned counsel for the petitioners is the decision in Ramesh Prasad Bhanja v. State of Orissa , wherein it was held as follows :-

"Reading of the F.I.R. as a whole, by no stretch of imagination it can be said that in the present case an offence under Section 3(1)(xii) of thehas been committed. Since no prima facie case under Section 3 of thehas been made out, it cannot be said that there is an "accusation of commission of an offence under the" and as such I have no hesitation to say that the applicability of the provision of Section 438 of the Code is not excluded. My above view gets support from the decision of this Court reported in 1994(7) O.C.R. 20, Jayanta Kumar Dass v. State of Orissa, which, in turn, relied upon and approved the decision of the Madhya Pradesh High Court reported in 1991 (3) Crimes 152, Ramdayal v. State. I am in respectful agreement with the observations made in the aforesaid cases."

12. The learned counsel for the petitioners also relied upon the decision of the Gujarat High Court in Pankaj D. Sudhar v. State of Gujarat 1992 (1) Crimes 1122, wherein the Gujarat High Court held as follows :-

"In view of the aforesaid discussion, though in a way the learned A.P.P. is absolutely right when he submitted that no anticipatory bail can be granted to the petitioner-accused because of Section 18 of the Atrocities Act, in the opinion of this Court his submission fails because at this stage it is too difficult to rule out the probability of the accusations levelled by the complainant against the petitioner-accused having committed an offence under the Atrocities Act being false, vexatious and by way of counter-blast as stemming from the ulterior motive to humiliate, disgrace and demoralize the petitioner-accused who is a public servant. When that is the resultant position, there is no question of bypassing of Section 18 of the Atrocities Act arises as apprehended by the learned A.P.P. Taking into consideration the fads and circumstances of this particular case and in view of the aforesaid discussion, this Miscellaneous Criminal Application for anticipatory bail deserves to be allowed and is allowed accordingly."

13. The learned counsel for the petitioners also relied upon a decision of the Madhya Pradesh High Court in Ramdayal and others v. State of M.P. 1991 (3) Crime 152, wherein it was held as follows :-

"As seen above, there being no material for prima facie suspecting the petitioners of having committed an offence under the, the ban imposed by Section 18 of the Act, does not come into play and the petitioners under the circumstances deserve the benefit of anticipatory bail being allowed to them."

14. The learned counsel for the petitioners also relied upon a decision of the Rajasthan High Court in Girdhari Lal v. State of Rajasthan , wherein it was held as follows :-

"In my humble opinion it is the duty of this Court to see that the stringent provisions of Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989 are not misused. The aforesaid object can be achieved only if judicial scrutiny is made permissible to find out whether an offence under the aforesaid Act has been committed by a person or a group of persons before refusing him or them as the case may be the benefit of pre-arrest bail."

15. The learned counsel for the petitioners further relied upon a decision of the Karnataka High Court in Chandra Poojari v. State of Karnataka 1998 (3) RCR 373 (Karnataka) : I99S Cri.L.J. 53. The Karnataka High Court held as follows :-

"....Unless it is made out that the petitioner was aware of the fact that the complainant belonged to that caste and with an intention to insult him, he used that word, it cannot be said that there is mens rea on the part of this petitioner to insult him by calling by that name. Therefore, as rightly submitted by the learned counsel for the petitioner, none of the requirements of Section 3(ix) is satisfied in this case."

The learned counsel for the complainant on the other hand contends that this Court has no power to stay arrest under Sections 438 and 482 Cr.P.C. In this connection, the learned counsel for the complainant relies upon the decision of the Patna High Court in Durga Prasad v. State of Bihar 1987 Cri.LJ. 1200, wherein it was held that the High Court or the Court of Session cannot stay arrest of accused person because no such power flows either from Section 438 Cr.P.C. or from any other provision of the Code including Section 482 Cr.P.C. But, the Court also held that in appropriate cases interim anticipatory bail for a limited period can be granted with the conditions mentioned in sub- section (2) of Section 438 Cr.P.C. so that the investigation is not stifled in any manner.

16. The learned counsel for the complainant also relied upon the decision of the Madhya Pradesh High Court in Surendra Kumar v. State of M.P. , and a decision of the Orissa High Court in Madan Mohan Sahoo v. State of Orissa , in support of his contention that this Court cannot slay arrest under Section 438 Cr.P.C.

17. The learned counsel for the complainant also relied upon a decision of the Kerala High Court in Rosamma Thomas v. Circle Inspector of Police 1999 (3) R.C.R. 120 (Kerala), in support of his contention, that where the allegations made by the complainant go to show that the petitioners have committed an offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989 then they are sufficient to prima facie constitute an offence under the said Act, and the question whether the accused are guilty of the offence is a matter to be decided by the trial Court after evidence and cannot be considered by the Court on a petition under Section 482 of the Code of Criminal Procedure for quashing the F.I.R. The learned counsel for the complainant, therefore, contends that inasmuch as the allegations in the complaint clearly show that the petitioners have committed the "offence under the, they cannot be granted bail in anticipation of arrest under Section 438 Cr.P.C. in view of the clear bar under Section 18 of the.

18. But, from the decision pointed out above, we find that it has been held that if the Court comes to the conclusion that the process of law is being mis-used or that the complaint is mala fide or vexatious, the Court can certainly exercise its inherent powers and even powers under Articles 16 of the Constitution of India. It has also been held that is too difficult to rule out the probability of accusations levelled against the accused being false, vexatious and by way of counter-blast as stemming from ulterior motive to humiliate, disgrace and demoralize the accused.

19. In the case on our hand, the complainant-second respondent is the employee of M/s Sanlokh Singh, Gurpartap Singh and Daljit Singh, who are residents of House No. 15, Sector 3-A, Chandigarh. The petitioners are also residents of a portion of the same house. According to the petitioners, there are disputes both civil and criminal between them on the one hand and Santokh Singh and others including the second respondent on the other hand. The learned counsel for the petitioners points out from annexure P-20 that a Civil Suit has been filed by the first petitioner against Santokh Singh and others. He also points out that the learned Civil Judge has also granted injunction against Santokh Singh and others by order dated 22.3.2000. The learned counsel for the petitioners also refers to anneuxre P-21 where-under the first petitioner lodged a complaint on 23.3.2000 with the Deputy Commissioner, Union Territory, Chandigarh, against Santokh Singh and others including the second respondent herein. Learned counsel for the petitioners also refers to the annexure P-22 the order of the Civil Judge (Junior Division), Chandigarh, dated 28.4.2000 modifying the order of injunction against Santokh Singh and others into an order directing the parties to maintain status quo.

20. He also refers to annexure P-27, which is a Criminal Writ Petition filed by the first petitioner on the file of this Court against Santokh Singh and others including the second respondent herein on 19.5.2000 praying for the protection to the lives and properties of the first petitioner and the members of his family. Annexure P-28 is the order of this Court, of course subsequent to the complaint, whereunder Santokh Singh and others including the second respondent were directed to file affidavits to the effect that they have never threatened or interfered with the first petitioner and that they have no intention to do so in future also. Learned counsel for the petitioners also refers to a Civil Suit filed by Santokh Singh Gill and others against the first petitioner and another on 12.4.2000.

21. Referring to all these documents which show the existence of Civil Suits before Court, and complaints to the Deputy Commissioner, Police etc. between the first petitioner and others on one hand and Santokh Singh and others including the second respondent herein on the other hand, the learned counsel for the petitioners contends that this complaint lodged by the second respondent, who is the employee of Santokh Singh and others, with whom the first petitioner and others have property dispute also, is only a counter- blast and a mala fide action lodged with the ulterior motive of harassing the petitioners and to involve them some-how in an offence of this sort so that they may not even get bail in anticipation of arrest.

22. Of course, these documents referred to by the learned counsel for the petitioners show that there has been disputes both civil and criminal between first petitioner and others on the one hand and Santokh Singh and others on the other hand in some of which second respondent-complainant is also a party. But, still the question is whether this Court can in exercise of its powers under Section 438 or 482 Cr.P.C. grant bail in anticipation of arrest to the petitioners with regard to the offences which they are alleged to have committed under Section 3 (x) and (xv) of thein view of the bar contained under Section 18 of the said Act. As pointed out already, the decisions relied upon by the learned counsel for the petitioners go to show that this Court can examine the allegations found in the complaint/F.I.R. and find out whether there are prima facie allegations which go to show the commission of these offences and then pass appropriate orders even under Section 438 Cr.P.C. It is also seen that the Court is entitled to examine the allegations and find out whether the complaint/FIR has been lodged with the ulterior purpose of humiliating, disgracing and demoralizing the accused and whether they are false and vexatious. Though Honble Mr. Justice V.S. Aggarwal, in Phula Dasss case 1997(3) RCR 213 (P&H), referred to above, held that if the Court comes to the conclusion that the process of law is being misused and that the complaint is totally mala fide and vexatious, the Court would certainly exercise its inherent powers and even powers under Articles 226 of the Constitution of India, still his Lordship observed that on the facts of the case before his Lordship, could it be stated that there was an abuse of process of law or that the F.I.R. has been recorded on material which is mala fide, and that it was premature to record a finding, at this stage, as the matter has to be investigated to find out what the accused stated is correct or not. Observing so, his Lordships dismissed the petition for the grant of anticipatory bail filed by the accused. In view of what has been stated above, I am of the view that the questions that have arisen in this case for consideration are bound to arise in many cases. The question very often arises as to whether by the mere registration of the offence under the, the applicability of Section 438 Cr.P.C. is totally barred in view of Section 18 of the. If the allegations in the complaint/FIR do not prima facie disclose the commission of an offence under the, then, there may not be any difficulty in granting bail under Section 438 Cr.P.C. But, here the accused alleges that the complaint is the result of mala fides and has been made with the ulterior motive simply to harass the accused, and that the process of law has been mis-used, the question arises whether the Court can still go into these allegations, come to prima facie opinion on these allegations, and then either grant or reject bail in anticipation of arrest, after considering the materials placed before the Court. The further question that arises for consideration is whether this Court in exercise of its powers under Section 482 Cr.P.C. or under Articles 226 of the Constitution of India is entitled to grant bail in anticipation of arrest in spite of the bar under Section 18 of the.

23. Therefore, I am of the view that in view of the importance of the questions of law that arise for consideration in this petition, this petition should be referred to a Larger Bench for examining the following question of law :-

1. Whether by reason of the mere fact an offence has been registered or a complaint has been lodged under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the applicability of Section 438 Cr.P.C. should be totally excluded.

2. Whether on an application under Section 438 Cr.P.C., the Court can examine the allegations in the F.I.R./complaint to find out whether it is the result of mala fides or it is an abuse of process of Court, merely intended to harass the accused

3. If the Court is entitled to examine these aspects and to come to a conclusion that it is so, then the further question that arises for consideration is whether the Court can grant anticipatory bail by exercising the powers conferred by Section 438 Cr.P.C.

4. Whether it is possible for Court to grant bail in anticipation of arrest either under Articles 226 of the Constitution of India or under Section 482 Cr.P.C. in spite of bar under Section 18 of the

24. As pointed out already, these questions arise very often before the Honble Single Judge of the Court. I am of the view that in view of the importance of these questions of law, which arise for consideration, these questions should be referred to a Larger Bench to avoid different opinions on this point.

25. Therefore, 1 direct the Registry to place this file before Honble the Chief Justice for passing appropriate orders for referring the matter for decision by a Larger Bench.

26. I have already pointed out that there have been disputes civil and criminal between the first petitioner and others on the one hand and Santokh Singh and others including the second respondent on the other hand. Therefore, it cannot be ruled out that the present complaint has been lodged by the second respondent as a counter-blast with ulterior motive or as a result of mala fides in view of the several disputes between the parties referred to above. Inasmuch as I have decided to refer the questions of law framed by me to a Larger Bench, I am of the view that till these questions are decided the petitioners should be protected inasmuch as it would be unjust, at this stage, to deny them the protection.

27. Therefore, I direct that in the event of arrest of the petitioners on the allegations found in the complaint and in pursuance of the summoning order passed by the learned Magistrate, the petitioners should be released on bail on their furnishing sufficient surety to the satisfaction of the arresting officer/concerned Court.

However, the petitioners shall abide by the provisions of Section 438(2) Cr.P.C.

28. Order accordingly.