The present petition is filed seeking to release the petitioners on anticipatory bail as they are apprehending arrest in connection with the complaint being C.R.No.I-04 of 2011 registered with Shahpur Police Station for the alleged offences punishable under Secs. 323, 294(b), 506(2), 394, 143, 147 and 149 of IP Code and Sec.3(1)(10) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
Heard learned advocate, Mr.Shivang Shukla for the petitioners and learned APP, Mrs.Krina Calla for the respondent No.1-State.
Mr.Shivang Shukla has taken this Court through the judgment and order dated 2-12-2011 passed by a Division Bench of this Court (Coram: A.L.Dave & Bankim N.Mehta,JJ) in Criminal Reference No.1 of 2011 which starts from running pages 32 to 46 more particularly para 7 which reads as under:
"7. Learned Advocate Mr. Shukla in the rejoinder relied on the decision of the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2010 (8) SC 353 wherein right to personal liberty is held to be a right guaranteed under Article 21 of the Constitution of India."
Relying on the above, it is requested by Mr.Shukla to allow this petition filed under Article 226 of the Constitution of India and Sec.482 of the Code of Criminal Procedure.
There is no substance in the said arguments in view of the observations of the Division Bench in para 15 of the said judgment which read as under:
"15 For the foregoing reasons, we answer the Questions referred to us as under:
Answer to Question No.1:
A person who is facing accusation of having committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, cannot legally invoke provisions of Section-438 of the Criminal Procedure Code, 1973 in view of specific bar contained under Section-18 of the Atrocities Act.
Answer to Question No.2:
A court exercising powers under Section 438 of the Criminal Procedure Code, 1973, cannot grant anticipatory bail under Section-438 of the Criminal Procedure Code in favour of a person who is facing accusation of having committed an offence under the Scheduled Castes and Scheduled Tribes Act, 1989 in view of a specific bar contained in Section-18 of the Atrocities Act."
In view of the above observations of the Division Bench, this Court is of the opinion that it is not fit case wherein Court should use its extra-ordinary power under Article 226 of the Constitution of India or under Sec.482 of Cr.P.C. Hence, this petition is rejected.
[M.D.SHAH,J.] radhan Top