Allahabad High Court
Shakti Pandey vs State Of U.P. on 26 April, 2023
Bench: Nalin Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3940 of 2023
Applicant :- Shakti Pandey
Opposite Party :- State of U.P.
Counsel for Applicant :- Prabhat Kumar Pandey
Counsel for Opposite Party :- G.A.,Bratendra Singh,Mahendra Prasad
Hon'ble Nalin Kumar Srivastava,J.
Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the record.
This application has been moved on behalf of the applicant Shakti Pandey seeking anticipatory bail in Case Crime No. 03 of 2023, under Sections 147, 148, 149, 323, 307, 504, 506 IPC and 3(2)5 SC/ST Act, P.S.- Khajni, District- Gorakhpur.
It has been argued by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. The investigation of the case is going-on and charge-sheet has not been filed. It has been submitted that in case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate in the investigation and would obey all conditions of bail.
At the very outset the attention of the Court is drawn towards the FIR, which has been lodged under Section 323, 504, 506 IPC and 3(1)(da), 3(1)(dha) SC/ST Act. It reveals from perusal of the record that the informant is a person belonging to schedule caste (dhobi) and when the accused persons by virtue of his caste abused him at the time of the incident at a public place, which was protested by the mother and aunt of the informant, the accused persons made an assault with the aid of hasiya, rod and axe. The informant and his brother sustained grievous injuries.
Learned A.G.A. and learned counsel for the informant has opposed the prayer for anticipatory bail. It is submitted that the informant Satendra and the injured witness Gita Devi, Usha Devi and Katwari Devi have also stated the same fact before the I.O. in their statements under Section 161 Cr.P.C. It is further submitted that both the sides was well known to each other and the accused persons very well knew that the informant side belongs to schedule caste and on the basis of that the present offence has been committed.
Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides that "Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."
However, after the decision of the Hon'ble Supreme Court in Prathvi Raj Chauhan vs. Union of India & Others, (2020) 4 SCC 727, the legal position is that an anticipatory bail in a case where an offence under SC/ST is alleged can be considered only if the Court is satisfied that the allegations levelled do not prima facie make out a case under SC/ST Act. The position of law remains the same even after the enactment of Section 18A of the Act.
Under SC/ST Act, there is special procedure and Special Courts/Exclusive Special Courts for dealing with the cases involved in the offences against the scheduled castes and scheduled tribes. A reading of the provisions of Sections 2(d), 2(bd) and Section 14 categorically indicates that the said offences are exclusively triable by Special Courts as contemplated by the legislature.
It is further to be kept in mind that under the special provisions of the SC/ST Act, the right of the victim and the witnesses are on a higher pedestal than provided under Cr.P.C. From the entire scheme of the act, including the powers of the Special Courts, it can be concluded that the Act has given primacy and exclusivity to the Special Courts over normal Courts.
Thus, in view of the aforesaid principle enumerated above, the Special Court while dealing with an application for anticipatory bail must ascertain whether a prima facie case for an offence punishable under the Act is made out, then only the application for anticipatory bail can be considered.
In view of the provisions of Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also in the light of the judgment of Hon'ble Apex Court in Prathvi Raj Chauhan (supra) and also keeping in view the fact that prima facie under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out in the facts and circumstances of the present case, present anticipatory bail application is not maintainable.
In view of the aforesaid observations, the present anticipatory bail application is dismissed, as not maintainable.
Order Date :- 26.4.2023
Fhd
