Akash Srivastava @ Akash Kumar ... vs State Of U.P. & Anr.
2021 Latest Caselaw 2248 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- BAIL No. - 5666 of 2020
 

 
Applicant :- Akash Srivastava @ Akash Kumar (Anticipatory Bail)
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Applicant :- Alok Srivastava
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Alok Srivastava-II, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P.

2. By means of present application u/s 438 Cr.P.C. the applicant has prayed for grant of anticipatory bail in connection with FIR/Case Crime No. 15 of 2020, under Sections 354-A, 294, 352, 504, 506 I.P.C. and Section 7/8 of Protection of Children from Sexual Offence Offences Act, 2012 and Section 3(2)(v)(a) of SC/ST Act. Police Station - Maharajganj, District - Raebareli.

3. Preliminary objection has been raised by learned Additional Government Advocate with regard to the maintainability of the present application u/s 438 Cr.P.C. stating that this Court does not have jurisdiction to grant anticipatory bail with regard to offence under concerned Acts stated therein including SC/ST Act.

4. On the other hand learned counsel for the applicant submits that perusal of the first information report would indicate that no offence under the SC/ST Act is made out and has relied upon the judgment of Hon'ble Apex Court in the case of Prathvi Raj Chauhan Vs. Union of India and others, Writ Petition (C) No. 1015 of 2018 (decide on 10.02.2020), wherein in paragraph 10 of the judgment and Court has observed as under :

"10. Concerning the applicability of provisions of section 438 Cr.P.C., it shall not apply tot he cases under the 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."

5. Countering the aforesaid submissions, learned Additional Government Advocate has submitted that during during statements of the complainant recorded under Section 164 Cr.P.C., it has clearly come up that the applicant has used caste related words to the complainant.

6. Heard learned counsel for the parties and perused the record.

7. It is clear from the perusal of the first information report that the applicant had used caste related words to the complainant and abused him by using such words and this fact has also been brought forth in the statement of the complainant recorded under Section 164 Cr.P.C. during investigation.

8. From the perusal of the aforesaid it is prima facie evident that invocation of the provisions of SC/ST Act is not arbitrary or without any factual background.

9. In the light of the specific par for exercising jurisdiction under Section 438 Cr.P.C., the present anticipatory bail application is not maintainable.

10. The application is accordingly rejected as not maintainable.

Order Date :- 11.2.2021

A. Verma

(Alok Mathur, J.)