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2014 DIGILAW 421 (CHH)

Vijay Kumar Patel v. State of Chhattisgarh

2014-11-25

SANJAY K.AGRAWAL

body2014
ORDER 1. This is an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 as the applicant is apprehending his arrest in connection with crime No. 213/2014 registered at police station Lailunga, District Raigarh (Chhattisgarh) for the alleged offence punishable under Section 455, 354 of Indian Penal Code and Section 3(1)(xi) Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, amended Section 3(1)(w)(i) of the Act as amended by Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014. The case of the prosecution in brief is that the applicant is working as Assistant Teacher in Primary School Dhanwarpara, where the complainant Devmati (who is a scheduled tribe) is also working as sweeper in that school. It is the further case of the prosecution that on 06.08.2014 the applicant finding the complainant alone entered in her house and caught hold of her and touched various parts of her body including hand and shoulder and used force to have sexual intercourse with her. The complainant any how ran away from the her house and informed her sister-in-law Smt. Mukti Bhagat, the applicant reached therein also and thereafter matter was reported to the Police Station Lailunga. 2. Learned counsel for the applicant would submit that he was not present at the place of incident on 06.08.2014 as he was on training from 05.08.2014 to 09.08.2014 at Sankul Kendra Lamdand and he has been falsely implicated in the instant crime in question. No ingredient of offence under Section 3(1)(xi) Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, amended Section 3(1)(w)(i) of the Act as amended by Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 is made out against him and he is entitled to be released on anticipatory bail as bar under Section 18 of Act would not came into play. 3. On the other hand learned counsel for the State would be submit that the contents of the F.I.R. as well as the statement of complainant Devmati and the statement of her sister-in-law Smt. Mukti Bhagat would clearly make out an offence under Section 3(1)(w)(i) of the Act of 1989. 4. I have heard learned counsel for parties and perused the case diary. 5. 4. I have heard learned counsel for parties and perused the case diary. 5. Section 3(1)(w)(i) of the Act of 1989 provides as under:-- "Section 3(J)(w)(i)--intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;" Taking into consideration the contents of the F.I.R. made by the complainant Devmati in which she has clearly stated that she being the cleaner in the school where the applicant is Assistant Teacher and applicant is aware of fact that she is member of the scheduled tribes and knowing full well that she is scheduled tribe on 06.08.2014 entered into her house and caught hold of her and touched her body including shoulder and breast and wanted to have sexual intercourse with her and further statement that any how he reached to house of her sister-in-law Mukti Bhagat and thereafter matter was reported to the police. The aforesaid narration of facts followed by statement of Mukti Bhagat it cannot be concluded that the prima facie ingredient of 3(1)(w)(i) of the Act is missing in the instant case and therefore bar under Section 18 of the Act squarely applies to the fact of case and the following the principles of law was laid down by the Supreme Court reported in Vilas Pandurang Pawar vs. State of Maharashtra, (2012) 8 SCC 795 , in which their Lordships held as under:-- "9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. 10. The Scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. 10. The Scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence." The aforesaid principle was followed by the Supreme Court in Bachudas vs. State of Bihar, (2004) 3 SCC 471, thus in view of forgoing analysis and following the law laid down by their Lordships of Supreme Court in aforesaid cases Vilas Pandurang Pawar (supra) and Bachudas (supra), the applicant is not entitled for the privilege of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 and his application filed under Section 438 Cr. P.C. is dismissed as not maintainable.