Gaya @ Gayadhar Dash vs State Of Odisha
2022 Latest Caselaw 1074 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   ABLAPL No.1051 of 2022

                 Gaya @ Gayadhar Dash                 ....             Petitioner
                                                   Mr. K.C. Tripathy, Advocate

                                            -versus-
                 State of Odisha                        ....            Opp. Party
                                                             Mr. P.C. Das, A.S.C.

                                         CORAM:

                            JUSTICE A.K. MOHAPATRA
                                            ORDER

Order No.                                  04.02.2022

    01.     1.      This matter is taken up through Video Conferencing 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 release the petitioner on anticipatory bail. However, in view of the bar contained under Section 18 as well as 18-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the present application under Section 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. 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 // 2 //

Section 438, Cr.P.C. shall not apply to the case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. While staying 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 Section 18 and 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 is being disposed of with the following observations.

6. The Petitioner shall surrender before the learned District and Sessions-cum-Special Judge, Jajpur in C.T. Special Case No.6 of 2022, arising out of Kuakhia P.S. Case No.6 of 2022 within a week. Seven days before the Petitioner surrender before the said court, he or his 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, it is directed that the Petitioner shall be released on interim bail by the leaned District and Sessions-cum- Special Judge, Jajpur 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.

8. The aforesaid order shall not be effective, if the injuries

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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.

9. The ABLAPL is disposed of.

10. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25 March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021, and Court's Office Order circulated vide Memo Nos.514 and 515 dated 7th January, 2022.

( A.K. Mohapatra) Judge Jagabandhu