Suresh Mahanta vs State Of Odisha And Another
2023 Latest Caselaw 1287 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  ABLAPL No.16525 of 2022

               Suresh Mahanta                          ....            Petitioner
                                                      Mr. A.K. Parida, Advocate

                                           -versus-

               State of Odisha and another             ....         Opp. Parties
                                                       Mr.Debasis Biswal, ASC

                        CORAM:
                        JUSTICE CHITTARANJAN DASH
                                       ORDER

Order No.                             07.02.2023
            I.A. No.281 of 2023

02. 1. Heard learned counsel for the Petitioner and the State.

2. This is an application for modification of order dated 3rd January, 2023 in ABLAPL No.16525 of 2022.

3. As the order dated 3rd January, 2023 was typed that inadvertently bring certain mistakes is hereby modified and the following order is passed in modification to the order dated 3rd January, 2023.

4."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.376(2)(n)/363/112/34 IPC read with Section 3(2) (v) (1) (r) of the SC & ST (POA) Act.

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 // 2 //

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.

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 surrenders before the learned Special Judge, SC/ST (PA) Act, Keonjhar in Harichandanpur P.S. Case No.104 of 2022 corresponding to Special Case No.37 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, on advance intimation, the Case Diary and other relevant materials be made available to the concerned court by the date of surrender.

// 3 //

(iii) The learned Court is further directed to consider the case of the Petitioner in accordance with law and shall dispose of the application on the very same day itself, strictly on its own merit keeping in view if the Petitioner has criminal antecedent. In this 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 but not in a routine manner. However it is made clear that the observations/directions made herein shall not be considered in affirmative."

4. The I.A. is disposed of accordingly.

(Chittaranjan Dash) Judge

KC Bisoi