Orissa High Court
Sk. Aeyup @ Sk. Eyup & Others vs State Of Odisha on 3 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.14002 of 2022
Sk. Aeyup @ Sk. Eyup & Others .... Petitioners
Mr. Sk. Zafarulla, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. M.K. Mohanty, A.S.C.
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 02.11.2022
01. 1. Heard learned counsel for the Petitioners and the State.
2. This is an application for bail U/s.438 Cr.P.C. filed by the
Petitioner in anticipation of arrest for their alleged involvement in
the offences U/s.148/324/325/307/153-A/149, I.P.C. and Sections
3(1)(r)(s)/3(2)(v) of the SC & ST (PoA) Act.
3. Learned Counsel for the Petitioner referring to the orders passed
in G.R. 97 of 2021 pending in the Court of Spl. Judge, Mayurbhanj
at Baripada, C.T. Case No.964 of 2021 of the Court of JMFC,
Betnoti pursuant to the orders passed by this court contended that
this court has passed orders to consider the application for bail and
the co-accused persons namely Rafagat @ Sk. Rephaket, Sk. Heki
@ Sk. Hekimuddin, Sk. Seduru, Sk. Chuturu, Sk. Abdulu, Bekrudi
@ Mallick Bekhiruddin have since been released on bail and
canvassed for release of the present petitioners. The learned
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Counsel has not filed the orders in ABLAPL No.319 of 2022
thereby this court is unable to ascertain if the said orders refers to
the case arising out of the Baisinga P.S. Case No.373 of 2021
basing on which the present petitioners seek the bail. This is
because the order that the learned Counsel submits regarding a
counter case to have been filed by the Petitioners may be referring
to the Baisinga P.S. Case No.371 of 2021 referred to in the said
G.R. Case.
4. Be that as it may, in view of the bar under Sections 18 and 18-A
of the SC & ST (PA) Act, the present application under Section
438, Cr.P.C. is not maintainable. As is said the issue has been
examined by the Apex Court in the matter of Prithvi Raj Chauhan
v. Union of India and Others, reported in (2020) 1 OLR SC 419.
In paragraph-10 of the said judgment, it has been held that the
provision of Section 438, Cr.P.C. shall not apply to the case
involving offence under SC & ST (PA) Act, 1989. While saying so
the Apex Court has further observed that, if the complaint does not
make out a prima facie case or applicability of the provision of the
Act, the bar created by Sections 18 & 18-A of the Act shall not
apply.
5. Further, this Court in Pramod Kumar Ray and others v. State of
Orissa, reported in (2017) 67 OCR 309, in the light of the
principles laid down by the Apex Court, reiterated the same
principles. Hence, this present application is disposed of with the
following observation.
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(i) In the event the Petitioners surrender before the learned 2nd
Addl. Sessions Judge-cum-Special Judge, Baripada in C.T.
Case No.97 of 2021 arising out of Baisinga P.S. Case
No.373 of 2021 within three weeks from today, before the
court in seisin over the matter the Petitioners shall serve
copy of the bail application on the learned PP/Special PP as
required by him for the purpose of notice to the victim or
his/her counsel or dependent.
(ii) It is further directed that, on advance intimation, the Case
Diary and other relevant materials be made available to the
concerned court by the date of surrender.
(iii) The learned Court is further directed to consider the case of
the Petitioners in accordance with law and shall dispose of
the bail application on the very same day itself, strictly on
its own merit looking however to the fact if the co-accused
persons in similar footing have since been released on bail.
In the circumstance, the Court is not precluded from
granting any interim protection to the Petitioners in
appropriate case, keeping in view the facts and
circumstances of the case, upon his satisfaction and not in
routine manner.
6. The ABLAPL is disposed of accordingly.
( Chittaranjan Dash )
Judge
S.K. Parida
