Tapan Nayak vs State Of Odisha
2023 Latest Caselaw 3410 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ABLAPL No.3296 of 2023

               Tapan Nayak                          ....            Petitioner
                                                Mr. Arijeet Mishra, Advocate

                                           -versus-

               State of Odisha                         ....         Opp. Party
                                                      Mr. M. K. Mohanty, ASC

                        CORAM:
                        JUSTICE CHITTARANJAN DASH


                                             ORDER

Order No. 13.04.2023

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/323/34 of IPC, section 4 of DP Act and Sections 3(1)(r)/3(1)(s)/3(2)(va) of SC and ST (PA) Act.

3. 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

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case or applicability of the provision of the Act, the bar created by Sections 18 & 18-A of the Act shall not apply.

4. 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:-

(i) In the event the Petitioner surrender before the learned Session Judge-cum-Special Judge, Jajpur in Kuakhia PS Case No.396 of 2022 corresponding to CT Special Case No.184 of 2022 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 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.

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5. That, it is made clear that the Court shall apply its wisdom in allowing or rejecting the bail keeping in view the gravity of the offences and severity of punishment.

6. The ABLAPL is disposed of accordingly.

(Chittaranjan Dash) Judge

AKPradhan