Orissa High Court
Kasturi Behera And Others vs State Of Odisha on 11 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.262 of 2023
Kasturi Behera and others .... Petitioners
Mr. Byomakesh Tripathy, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. M.K. Mohanty, ASC
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 11.01.2023
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
Petitioners in anticipation of arrest for their alleged involvement in
the offences U/s.498-A/294/323/506/34 IPC read with Section 4 of
the D.P. Act and under Section 3(1) (r) (s)/3(2)(va) of the SC & ST
(POA) Act.
3. Learned counsel for the Petitioners submits that Aloknath
Behera, the husband of the Informant, had moved this Court for pre
arrest bail in ABLAPL No.14727 of 2022. In absence of the FIR,
the said ABLAPL was disposed of with the observation that the
investigating agency to follow the direction issued by the Apex
Court in the matter of Arnesh Kumar v. State of Bihar reported in
(2014) 8 SCC 27. It is further submitted that subsequently the FIR
was filed implicating the Petitioners in the offence U/s.498-
// 2 //
A/294/323/506/34 IPC read with Section 4 of the D.P. Act and
under Section 3(1) (r) (s)/3(2)(va) of the SC & ST (POA) Act along
with Aloknath Behera.
4. In the present, the Petitioners are three female members being the
relatives of Aloknath Behera. 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. 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.
(i) In the event the Petitioners surrender before the learned
S.D.J.M., Koraput in Koraput Town P.S. Case No.336 of
2022 corresponding to T.R. Case No.180 of 2022 within
three weeks from today, before the court in seisin over the
// 3 //
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 application on the very same day itself, strictly on its
own merit keeping in view if the Petitioners have 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.
6. The ABLAPL is disposed of accordingly.
(Chittaranjan Dash)
Judge
KC Bisoi
