Muna Barik vs State Of Odisha And Another
2022 Latest Caselaw 4105 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                               ABLAPL No.10010 of 2022

                 Muna Barik                            ....            Petitioner
                                                       Mr. S.K. Dash, Advocate
                                           -versus-
                 State of Odisha and another           ....        Opp. Parties
                                                      Mr. M.K. Mohanty, A.S.C.
                                        CORAM:

                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              23.08.2022
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the petitioner and learned Additional Standing Counsel for the State. Perused the records.

3. The present application has been filed under Section 438 Cr.P.C. for releasing the petitioner 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. 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. It is submitted by learned counsel for the petitioner that initially the F.I.R. has been lodged making allegation for offence punishable under Sections 294/354/506, I.P.C. read with Section 3 of the S.C and S.T. (PoA) Act. He further submits that after investigation, police submitted final form for the offence punishable // 2 //

under Sections 294/323/354/506, I.P.C. read with Section 3(i)(x) and

(xi) of the S.C. and S.T. (PA) Act. However, since the petitioner is facing acquisition for cognizance has been for the commission of offence punishable under Section 3 of the S.C. and S.T. (PoA) Act, the present bail application is not maintainable under Section 18-A of the Cr.P.C. of the aforesaid act.

5. The aforesaid issue has also been examined by the Hon'ble 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.

6. 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 is being disposed of with the following observations.

7. The petitioner shall surrender before the learned S.D.J.M., Champua, in I.C.C. No.27 of 2013 pending before the said court on or before 24.09.2022. Seven days before the petitioner surrender 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 // 3 //

him, for the purpose of notice to the victim or his/her counsel dependent.

8. Taking into consideration the nature of the offence as alleged against the petitioner, it is directed that the petitioner shall be released on interim bail by the learned S.D.J.M., Champua on the same day, he surrender 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.

9. 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 can be granted interim bail.

10. The ABLAPL is disposed of accordingly.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra) Judge Jagabandhu