Allahabad High Court
Ashok Rajbhar @ Ashok Kumar vs State Of U.P. Thru. Prin. Secy. ... on 18 May, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:34888
Court No. - 15
Case :- CRIMINAL APPEAL No. - 648 of 2023
Appellant :- Ashok Rajbhar @ Ashok Kumar
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Counsel for Appellant :- Ali Hasan,Mohammad Alishah Faruqi,Mohd. Suhail,Prince Lenin,Rajesh P. Singh Baghel,Razaur Rahman
Counsel for Respondent :- G.A.,Anurag Tripathi,Dhirendra Shukla
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri Prince Lenin, learned counsel for the appellant, Sri Anurag Verma, learned A.G.A. for the State and perused the record.
2. Today, when the case was taken up for hearing in the revised list, no one has appeared for the opposite party no.2 despite the name of Sri Anurag Tripathi, Advocate is shown as counsel for the opposite party no.2.
3. The instant criminal appeal has been filed by the appellant against the judgment and order dated 20.12.2022 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Ambedkar Nagar in Bail Application No.2218 of 2022 arising out of Complaint No.32 of 2021, under Sections 376D, 506 I.P.C. and Section 3 (2) (V) SC/ST Act, Police Station Sammanpur, District Ambedkar Nagar.
4. It is submitted by learned counsel for the appellant that by means of the impugned order dated 20.12.2022, the application seeking anticipatory bail by the present appellant in connection with F.I.R. No.0095 of 2018, under Sections 376D, 506 I.P.C. and Section 3 (2) (V) SC/ST Act, Police Station Sammanpur, District Ambedkar Nagar, came to be rejected by learned trial Court on the ground that entertaining such application for anticipatory bail is specifically barred and excluded by virtue of Section 18 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'Act, 1989').
5. His further submission is that the aforesaid impugned order dated 20.12.2022 is patently illegal insofar as the same has been passed without considering the law laid down by Hon'ble the Apex Court in Prathvi Raj Chauhan vs. Union of India and others reported in (2020) 4 SCC 727 and also the learned trial Court failed to consider the fact that no offence, whatsoever, under SC/ST Act is made out against the present appellant. Therefore, denial of anticipatory bail on the basis of bar contained in Section 18 of Act, 1989 is not sustainable.
6. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that Section 18 of SC/ST Act provides specific bar, in order to prevent and protect atrocities being committed in respect of members belonging to SC/ST Community. Therefore, such enactment should be construed strictly and in this view of the matter, no fault with the impugned order can be found.
7. Having heard learned counsel for the appellant, learned A.G.A. for the State and upon perusal of the record, it transpires that initially a first information report came to be lodged under Sections 376-D, 506 I.P.C. and Section 3 (2) (v) SC/ST Act against two accused persons including the present appellant at the behest of opposite party no.2 alleging therein that gang rape upon the victim was committed by the present appellant. The present appellant appears to have moved an application seeking anticipatory bail in respect of F.I.R. No.0095 of 2018, under Sections 376D, 506 I.P.C. and Section 3 (2) V SC/ST Act, Police Station Sammanpur, District Ambedkar Nagar, which came to be rejected by means of impugned order dated 20.12.2022.
8. Aggrieved by the aforesaid impugned order dated 20.12.2022, the instant criminal appeal came to be filed by the present appellant.
9. Being germane to the present controversy, Section 18 of SC/ST Act is quoted herein below :
"18. Section 438 of the Code not to apply to persons committing an offence under the Act.?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."
10. Hon'ble the Apex Court in Prathvi Raj Chauhan (Supra) in paras 8 and 11 has held as under :
"8. This Court in Shakuntla Devi v. Baljinder Singh [Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521 : (2015) 4 SCC (Cri) 682] , has observed thus : (SCC p. 522, para 4)
"4. The High Court has not given any finding in the impugned order [Baljinder Singh v. Shakuntla Devi, Crl. Misc No. M-17586 of 2011, order dated 31-1-2012 (P&H)] that an offence under the aforesaid Act is not made out against the respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in Vilas Pandurang Pawar case [Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 : (2012) 3 SCC (Cri) 1062] . Hence, without going into the merits of the allegations made against the respondent, we set aside the impugned order [Baljinder Singh v. Shakuntla Devi, Crl. Misc No. M-17586 of 2011, order dated 31-1-2012 (P&H)] of the High Court granting bail to the respondent.
11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions."
11. Adverting to the facts of this case, from a bare perusal of the impugned order dated 20.12.2022, it appears that learned trial Court while holding that the application seeking anticipatory bail was not maintainable due to bar created by Section 18 of SC/ST Act, failed to consider the law laid down by Hon'ble the Apex Court in Prathvi Raj Chauhan (supra) in paras 8 and 11.
12. Thus, the upshot of aforesaid overall discussion is that the impugned order dated 20.12.2022 being patently illegal deserves to be set aside and the instant criminal appeal deserves to be allowed.
13. For the foregoing reasons, the instant criminal appeal is allowed and the impugned order dated 20.12.2022 is set aside with a direction to learned trial Court to decide the application seeking anticipatory bail moved by the appellant afresh in the light of law laid down by Hon'ble the Apex Court in Prathvi Raj Chauhan (supra) and in strict accordance with law.
Order Date :- 18.5.2023
Mahesh
