Orissa High Court
Jubi @ Jobeda Begum & Others vs State Of Odisha & Another on 28 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.8394 of 2022
Jubi @ Jobeda Begum & Others .... Petitioners
Mr. Deepak Kumar Sahoo, Advocate
-versus-
State of Odisha & another .... Opposite Parties
Mr. P.K. Rout, A.G.A.
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
28.07.2022
Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioners and learned Addl.
Govt. Advocate for the State. Perused the case record.
3. The present application has been filed under Section 438,
Cr.P.C. for release of the petitioners on anticipatory bail. However,
in view of the bar under Section 18 as well as 18-A of the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, the
present application under Section 438, Cr.P.C. is not maintainable.
The provision of Section 438, Cr.P.C. is not applicable to the case
registered involving an offence under the Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
5. The aforesaid issue has also been examined by the Hon'ble
Supreme Court of India in the matter of Prithvi Raj Chauhan vrs.
Union of India and others, reported in 2020(I) OLR (SC) 419. In
paragraph-10 of the said judgment, it has been held that, provision of
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Section 438, Cr.P.C. shall not apply to the case under the Scheduled
Castes & 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 & Scheduled
Tribes (Prevention of Atrocities) Act, 1989, the bar created by
Section 18 and 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 Petitioners shall surrender before the learned Addl.
Sessions Judge-cum-Special Judge, Kendrapara in G.R. Case No.49
of 2022 corresponding to Kendrapara Town P.S. Case No.114 of
2022 within three weeks from today. Seven days before the
Petitioners surrender before that Court, they or their 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.
8. Taking into consideration the nature of the offence as alleged
against the Petitioners, it is directed that the Petitioners shall be
released on interim bail by the learned Addl. Sessions Judge-cum-
Special Judge, Kendrapara on the same day, if they 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. Ground of parity, if canvassed by learned
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counsel for the Petitioners, shall also be taken into consideration by
the learned Addl. Sessions Judge-cum-Special Judge while disposing
of the bail application of the Petitioner on merit.
9. The aforesaid order shall not be effective, if the injuries
sustained by the victim/victims are near to fatal and the
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 Petitioners can be granted interim bail.
10. Accordingly, the ABLAPL is disposed of.
11. Urgent certified copy of this order be granted as per rules.
(A.K. Mohapatra)
Judge
S.K.Parida
