Biki Bagarty @ Sudhansu vs State Of Odisha
2023 Latest Caselaw 957 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ABLAPL No.363 of 2023

               Biki Bagarty @ Sudhansu                 ....            Petitioner
               Bagarty
                                               Mr. Jayadeba Behera, Advocate

                                            -versus-

               State of Odisha                         ....           Opp. Party
                                                             Mr. S. Patra, ASC

                        CORAM:
                        JUSTICE CHITTARANJAN DASH
                                       ORDER

Order No. 30.01.2023

02. 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.294/341/323/325/307/447/506/34 IPC read with Section 3(1) (r)/3(1)(s) of the SC & ST (POA) Act.

3. It is submitted by learned counsel for the State that the Petitioner apparently has no criminal antecedent in the concerned P.S but there is one grievous injury to the vital part. The learned counsel for the Petitioner submitted that the alleged assault has been made by means of a wooden plank and as such there was no preparation or intention behind such assault, if any.

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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. 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, the present application is disposed of with the following observation.

(i) In the event the Petitioner surrenders before the learned Special Judge (SC & ST), Bolangir in Loisingha P.S. Case No.1 of 2023 corresponding to G.R. Case No.3 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.

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(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 Petitioner in accordance with law and shall dispose of the application on the very same day itself, strictly on its own merit. 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