Orissa High Court
Deepak Ku. Mahanta vs State Of Odisha on 4 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.2990 of 2023
Deepak Ku. Mahanta .... Petitioner
Mr. Sidhartha Das, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S. R. Roul, ASC
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 04.04.2023
01. 1. Heard learned counsel for the Petitioner 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 his alleged involvement in
the offences U/s.498-A of IPC, Section 4 of DP Act, 1961 and
Sections 3(1)(r)(s) of SC & ST (PoA) Act.
3. It is submitted by learned counsel for the Petitioner that there is
nothing against the present Petitioner to have uttered anything
aspersing to the caste of the Informant in public view to attract the
offence under Section 3(1)(r)(s) of SC & ST (PoA) Act and other
offences being in relation to matrimonial discord the investigating
agency may be directed to resort to the provision U/s.41-A Cr.P.C
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4. It is however submitted by the learned counsel for the State that
there is material to attribute the offence U/s. 3(1)(r)(s) of SC & ST
(PoA) Act. Mere absence of a description as to where has she been
uttered the aspersion cant' be taken the same was not in public
view and to ignore the offence at this stage.
5. Keeping in view the submission of the parties and looking to the
stage since the informant belong to Schedule Caste community
and there is an utterance apparently on the face of the FIR,
absence of the description as to place of occurrence cannot be
presumed the offence to have not been committed.
6. 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. 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.
7. 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
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principles. Hence, this present application is disposed of with the
following observation:-
(i) In the event the Petitioner surrender before the learned
ADJ-cum-Special Judge, Champua in Joda PS Case No.76
of 2023 corresponding to SPL Case No.8 of 2023 within
three weeks from today, before the court in seisin over the
matter, the Petitioner 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, the Case Diary and other
relevant materials be made available to the concerned court
as far as practicable by the date of surrender.
(iii) The learned Court is further directed to consider the
case of the Petitioner in accordance with law strictly on its
own merit applying its own wisdom and shall dispose of
the application on the very same day if there be no other
legal impediment. In the circumstance, the Court is not
precluded from granting any interim protection in
appropriate case, keeping in view the facts and
circumstances of the case, upon his satisfaction and not in
routine manner.
8. In no case, the court concerned shall be influenced by the
observations of this court presuming the direction passed here in is
directory, peremptory or in affirmative and shall apply its wisdom
in allowing or rejecting the application of the Petitioner keeping in
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view the gravity of the offence and severity of punishment. The
ABLAPL is disposed of accordingly.
(Chittaranjan Dash)
Judge
AKPradhan
