Orissa High Court
Uttam Kumar Bhoi And Others vs State Of Odisha on 17 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.9861 of 2022
Uttam Kumar Bhoi and others .... Petitioners
Mr. S. B. Jena, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S. Patra, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 17.08.2022
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the petitioners and learned
Additional Standing Counsel for the State.
3. This is an application under Section 438, Cr.P.C. filed by the
petitioners for anticipatory bail.
4. The petitioners are seeking pre-arrest bail in connection with
C.T. Case No.47 of 2022, arising out of Kesinga P.S. Case No.301 of
2022 pending in the court of learned Sessions Judge-cum-Special
Judge, Kalahandi, Bhawanipatna for commission of offence
punishable under Sections 294/341/506/34, I.P.C. read with Section
3 of the S.C. and S.T. (PoA) Act and other allied offences.
5. It is submitted by learned counsel for the petitioners that
allegation under S.C. and S.T. (PoA) Act is not made against the
petitioner no.1-Uttam Kumar Bhoi, petitioner no2-Rohit Bhoi @
Rohit Kumar Bhoi and petitioner no.3-Chita Bhoi @ Chitta Ranjan
Bhoi. Therefore, no case under SC & ST (PoA) Act is made out
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against the said three petitioners.
6. Considering the submissions made by learned counsel for the
petitioners, the nature of allegation, gravity of offence and the facts of
the case, I am not inclined to grant anticipatory bail to the petitioner
no.1-Uttam Kumar Bhoi, petitioner no2-Rohit Bhoi @ Rohit Kumar
Bhoi and petitioner no.3-Chita Bhoi @ Chitta Ranjan Bhoi.
However, it is directed that in the event the petitioner no.1-Uttam
Kumar Bhoi, petitioner no2-Rohit Bhoi @ Rohit Kumar Bhoi and
petitioner no.3-Chita Bhoi @ Chitta Ranjan Bhoi surrender before the
learned court in seisin over the matter within a period of three weeks
from today in the aforesaid case, they shall be released on bail on such
terms and conditions as would be deemed just and proper by the court
in seisin over the matter.
7. So far allegation against petitioner no.4-Ganesh Bhoi is
concerned, perusal of the F.I.R. it is observed that a case against the
petitioner no.4 is made out for commission of offence under S.C. and
S.T. (PoA) Act.
8. The present application has been filed under Section 438
Cr.P.C. for releasing the petitioners including the petitioner no.4-
Ganesh Bhoi on anticipatory bail. However, in view of the bar
contained under Sections 18 as well as 18-A of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the
present application u/s 438 Cr.P.C. is not maintainable. So far
petitioner no.4 is concerned. The provisions of section 438 Cr.P.C. is
not applicable to the case registered involving an offence under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
4. The aforesaid issue has also been examined by the Hon'ble
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Supreme Court of India in the matter of Prathvi Raj Chauhan-vrs.
Union of India and others, reported in 2020(1) OLR (SC) 419. In
Paragraph-10 of the said judgment it has been held that provision of
Section 438 Cr.P.C. shall not apply to the case under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
While saying so, the Hon'ble Supreme Court has further observed
that if the complaint does not make out a prima facie case for
applicability of the provisions of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, the bar created by
Sections 18 & 18-A of the Act shall not apply.
5. Further, this Court has also elaborately discussed the issue in
the case of Pramod Kumar Ray and others-vrs.-State of Odisha,
reported in (2017) 67 OCR 309. In the light of the principle laid
down by this Court in Pramod Kumar Ray (supra), the present bail
application in respect of the petitioner no.4 is being disposed of with
the following observations.
6. The petitioner no.4-Ganesh Bhoi shall surrender before the
learned Sessions Judge-cum-Special Judge, Kalahandi,
Bhawanipatna in the aforesaid case pending before the said court on
or before 19.09.2022. Seven days before the petitioner surrenders
before the said Court, he or her counsel shall serve a copy of the bail
application or such number of copies of the bail application on the
learned Public Prosecutor/Special Public Prosecutor, as required by
him, for the purpose of notice to the victim or his/her counsel
dependent.
7. Taking into consideration the nature of the offence as alleged
against the petitioner no.4-Ganesh Bhoi, it is directed that the
petitioner no.4-Ganesh Bhoi shall be released on interim bail by the
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learned Sessions Judge-cum-Special Judge, Kalahandi,
Bhawanipatna on the same day, he surrenders in the aforesaid case,
pending disposal of the bail application on merit, at the time of final
hearing of the case, on such terms and conditions as deemed just and
proper.
8. The aforesaid order shall not be effective if the injuries
sustained by the victim/victims are near fatal and victim/victims are
still in bad shape. But, if the injuries are otherwise lesser and the
victim/victims is/are hale and hearty, this observation shall not be
effective and the petitioner no.4-Ganesh Bhoi can be granted interim
bail.
9. The ABLAPL is accordingly disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
Judge
Jagabandhu
