Chattisgarh High Court
Himanshu Nirmalkar @ Lakky vs The State Of Chhattisgarh on 31 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1508 of 2022
• Himanshu Nirmalkar @ Lakky S/o Ramnath Nirmalkar, aged about 28
years, R/o Vijaypur Chowki, Junapara, Thana Takhatpur, District
Bilaspur (CG)
---- Applicant
Versus
• The State Of Chhattisgarh through the Station House Officer, Police
Station-Koni, Bilaspur, District-Bilaspur (CG)
--- Respondent
For Appellant : Mr.K.P.S.Gandhi, Advocate
For State : Mr.Sameer Uraon, Government Advocate
Hon'ble Shri Justice Sachin Singh Rajput
Order On Board
31/10/2022
This appeal under Section 14-A(2) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015
(hereinafter referred to as "Special Act') has been filed against the order
dated 15.9.2022 passed by the Special Judge (SC/ST Act), Bilaspur, District
Bilaspur whereby it has rejected the application under Section 438 CrPC in
connection with the Crime No.291/2022 registered at Police Station-Koni,
Bilaspur, District Bilaspur for the offence punishable under Sections 3(2)(v)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989.
2. Case of the prosecution in brief is that the applicant committed sexual
intercourse with the prosecutrix knowing that she belongs to the Scheduled
Castes community and thereby committed the offence.
3. Learned counsel for the applicant submits that the age of the
prosecutrix is 33 years, whereas the age of the applicant is 28 years. The
prosecutrix lodged the report earlier alleging that she was subjected to
intercourse on the pretext of marriage for a considerable period of time. He
further submits that in the FIR as well as in her 161 & 164 CrPC statement,
the prosecutrix has never levelled any allegation that she was subjected to
intercourse by the present applicant knowing that she belongs to Scheduled
Castes community and therefore, no offence under the Special Act was
registered against the present applicant. He also submits that on 15.7.2022
the Additional Sessions Judge (F.T.C.), Bilaspur has granted regular bail to
the applicant on certain conditions, but after the applicant was released from
jail, subsequently offence under the Special Act was registered against him
and from the statements of the prosecutrix as well as the FIR, no allegation
of commission of offence under the Special Act is made out against the
applicant. He would rely upon the judgment of the Supreme Court in the
matter of Prathvi Raj Chauhan v. Union of India and others reported in
(2020) 4 SCC 727. He would also rely upon the judgment of the Delhi High
Court in the matter of Joy Dev Nath v. State (NCT of Delhi) reported in
Docid#IndLawLib/1819676, decided on 28.01.2022.
4. On the other hand, learned State Counsel opposes the bail application
and submits that the victim / prosecutrix belonged to Scheduled Castes
community, therefore, the offence was subsequently added during the course
of investigation. However, he fairly submits that in FIR and in statements
recorded under Sections 161 & 164 CrPC, she has not stated that she was
subjected to intercourse on the ground that she is a member of Scheduled
Castes Community.
5. I have heard learned counsel for the parties and considered the rival
submissions of the parties.
6. The Supreme Court in the matter of Prathvi Raj Chauhan (supra) held
as under:-
"7. This Court in Vilas Pandurang Pawar and Anr. v. State of
Maharashtra and Ors., (2012) 8 SCC 795, has observed thus:
"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."
11. Concerning the applicability of provisions of section 438
Cr.PC, it shall not apply to the cases under 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.
33. I would only add a caveat with the observation and
emphasize that while considering any application seeking pre-
arrest bail, the High Court has to balance the two interests: i.e.
that the power is not so used as to convert the jurisdiction into
that under Section 438 of the Criminal Procedure Code, but that
it is used sparingly and such orders made in very exceptional
cases where no prima facie offence is made out as shown in
the FIR, and further also that if such orders are not made in
those classes of cases, the result would inevitably be a
miscarriage of justice or abuse of process of law. I consider
such stringent terms, otherwise contrary to the philosophy of
bail, absolutely essential, because a liberal use of the power to
grant pre-arrest bail would defeat the intention of Parliament. "
7. The Delhi High Court in the matter of Joy Dev Nath (supra) held as
under:-
"17. The perusal of the complaint filed by the complainant also
does not make out prima facie case for the applicability of the
provisions of SC/ST Act, therefore, the bar created by Sections
18 and 18a will not be applicable to the instant case.
19. The Complainant does not allege in her complaint that she
was sexually victimised by reason of her caste status
throughout her relationship with the Petitioner/applicant and
only brings in the allegation relating to her caste in an alleged
episode of 20th September, 2021, which arose in the backdrop
and context of the applicant refusing to marry the prosecutrix
and not in the context of the allegations of sexual assault upon
her. It is perhaps for his reason that initially section 3(1)(w) of
the SC/ST act was not alleged in the FIR, but was added
subsequently, when raised before the Court below, which has
also been recorded in the order committed by December 2021.
It appears that the offences in the nature of sexual assault,
alleged to have been committed by the Petitioner/applicant, had
no reference to the prosecutrix's caste, thereby, Section 3(1)(w)
of the SC/ST act does not prima facie come into play in the
instant case."
8. In view of the aforementioned facts & circumstances, submissions of
learned counsel for the parties and also relying on the judgments citied
above, this Court is persuaded to allow the instant criminal appeal.
Accordingly, the instant appeal is allowed and the order dated 15.9.2022
passed by the Special Judge (SC/ST Act), Bilaspur is set aside. It is directed
that in the event of arrest, the applicant shall be admitted to bail by the
Investigating Officer/arresting Officer on furnishing a personal bond of
Rs.25,000/- with one surety of the like amount from a family member to the
satisfaction of the Investigating Officer/arresting Officer, subject to following
conditions:-
a) he shall surrender his passport, if any, to the Investigating Officer
and shall under no circumstances leave India without prior
permission of the Court concerned;
b) he shall cooperate in the investigation and appear before the
Investigating Officer of the case as and when required; and
c) he shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case.
This Court has not expressed any opinion on merits of the case.
Certified copy as per rules.
Sd/-
(Sachin Singh Rajput)
Judge
B/-
