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2007 DIGILAW 37 (CHH)

PRAVEEN KUMAR SAHU v. STATE OF CHHATTISGARH

2007-01-11

SUNIL KUMAR SINHA

body2007
SUNIL KUMAR SINHA, J. ( 1 ) THIS is an application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No. 21/2006, registered at Police Station-Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, District-Rajnandgaon (C. G.) for the offence punishable under Section 376 of the IPC and section 3 (1) (xii) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities)Act, 1989 (hereinafter referred to as the Special Act. ( 2 ) THE case of the prosecution is that on 15. 12. 2006, the prosecutrix lodged a report in the concerned Police Station that since 4 years to the said date, she was subjected to sexual intercourse by this applicant. It also comes in the First Information Report that she was taken by this applicant to Nagpur and they were residing as husband and wife since last 4 years, but ultimately, when she offered for a regular marriage, this applicant refused to marry her. ( 3 ) LEARNED counsel for the applicant submits that admittedly, according to the prosecution itself, the girl was aged about 21 years on the date of FJR, as in her transfer certificate, seized by the Police, her date of birth is mentioned as 30. 6. 1985. He also submits that even 4 years prior to the date of lodging of the FIR calculation is made; she would be aged about 17 years. He further submits that in the facts and circumstances of the case neither an offence under Section 376 IPC would be made out nor an offence under the aforesaid Sections of the Special Act would also be made out, therefore, this application filed under section 438 Cr. P. C. would be maintainable. ( 4 ) ON the other hand, learned counsel for the State opposes the bail application. He submits that since an offence under Section 3 (1) (xii) of the Special Act is registered against the applicant, this application under section 438 Cr. P. C. would not be maintainable in view of the bar under Section 18 of the Special Act. ( 5 ) THE law in relation to entertaining the application under Section 438 Cr. P. C. in such offences is well settled. The point raised by the State and learned counsel for the applicant is no longer res integra. P. C. would not be maintainable in view of the bar under Section 18 of the Special Act. ( 5 ) THE law in relation to entertaining the application under Section 438 Cr. P. C. in such offences is well settled. The point raised by the State and learned counsel for the applicant is no longer res integra. It has been held that if the contents of the FIR or the complaint disclose the commission of offence under the Special Act, the Courts would not be justified in entering into a further enquiry by summoning the case diary or any other material as to whether the allegations are true or false or whether there is any preponderance of probability for commission of such an offence. At this stage, the Court cannot examine and scrutinize the record of the case in order to ascertain the veracity of the FIR/complaint. The provisions of Section 18 of the Act, 1989 put a complete bar against the entertainment of an application for anticipatory bail where prima facie the contents of the FIR disclose the ingredients of the commission of the offence under the Act of 1989 which is apparent from the perusal of the Section itself and thus the Court at the most would be required to evaluate the FIR itself with a view to find out if the facts emerging there from taken at their face value disclose the existence of the ingredients constituting the alleged offence, then the Court would not be justified in entering into an enquiry as to the reliability or a genuineness or otherwise of the allegations made in the FIR or the complaint. ( 6 ) ON many occasion, it has been noticed by this Court that in the matter of commission of alleged offences under the IPC, the prosecution agencies are straightway utilising the provisions of Special Act only on the ground that the victim of the offence happens to be a member of a Scheduled caste or a Scheduled Tribe. The factor, which would govern the application of the provisions of Special Act, would not be only the caste of the victim, but the essentials are that firstly the ingredients of the offence alleged, are inherently attracted and secondly, that the victim belongs to a particular caste or tribe. The factor, which would govern the application of the provisions of Special Act, would not be only the caste of the victim, but the essentials are that firstly the ingredients of the offence alleged, are inherently attracted and secondly, that the victim belongs to a particular caste or tribe. ( 7 ) IN case on hand, the offence registered is under Section 3 (1) (xii) of the Special Act. Section 3 (1) (xii) says that whoever, not being a member of a Scheduled Caste or a scheduled Tribe, being in a position to dominate the will of a woman belonging to a scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. ( 8 ) A bare perusal of the aforesaid provisions would show that the first condition for attracting the aforesaid offence would be that the accused must be in a position to dominate the will of a woman who belongs to a particular caste or tribe and he uses such position to exploit the victim sexually to which she would not have otherwise agreed, i. e. to say that if a person is not in a dominating position and the facts of the case show that there was some element of free consent, from the side of the victim and a prima facie possibility of which is not fully ruled out, the provisions of Section 3 (1) (xii)would not be attracted only on the ground that in such case, the victim happens to be a member of Scheduled Caste or a Scheduled Tribe, by chance. ( 9 ) IF we peruse the contents of the FIR of the case, it would appear that according to the victim, she lived with the applicant and they went to Nagpur from Rajnandgaon and she was residing with the applicant as his wife since a reasonably long period i. e. for more than 4 years and the dispute arose when the applicant denied to marry her, I am of the opinion that in such circumstance, present is a fit case, in which, prima facie ingredients of the offence alleged, are not attracted according to the FIR and the provisions of Section 18 of the Act would also not be attracted, therefore, the application under Section 438 Cr. P. C. , would be maintainable. ( 10 ) AS far as the merits of the case are concerned, in the facts and circumstances of the case, referred to above, I am inclined to admit the applicant to bail. ( 11 ) HIS application filed under Section 438 Cr. P. C. is allowed. ( 12 ) IT is directed that in the event of arrest of this applicant, he shall be released on bail on his furnishing a personal bond in sum of Rs. 10,000/- with one surety in like amount to the satisfaction of the Officer arresting him. ( 13 ) THIS order of anticipatory bail shall remain in force for a period of 60 days from today, during which, the applicant may apply for regular bail before the concerned Court. Certified copy as per rules. Bail Application allowed. --- *** --- .