Nayan Tibrewal vs State Of Odisha
2023 Latest Caselaw 12357 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ABLAPL No. 7214 of 2023

               Nayan Tibrewal                         ....           Petitioner
                                                    Mr. T.K. Mishra, Advocate

                                           -versus-

               State of Odisha                         ....           Opp. Party
                                                            Mr. D. Biswal, ASC

                        CORAM:
                        JUSTICE CHITTARANJAN DASH

                                          ORDER

Order No. 10.10.2023

03. 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. 307/294/34 of IPC and Sections. 3(1)(r)/3(1)(s)/ 3(2)(v)/ 3(2)(va) of SC & ST (POA) Act, R/w. Sections. 25/27 of Arms 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 case or

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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 surrenders before the learned Special Judge, Jharsuguda, relating to C.T. (Spl) Case No.37 of 2022 arising out of Jharsuguda Sadar P.S Case No.268 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.

(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 the circumstance, the Court is not precluded from granting any interim protection to the Petitioner in appropriate case, keeping in view the facts and

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circumstances of the case, upon his satisfaction and not in routine manner.

5. The court shall apply its wisdom in allowing or rejecting application keeping in view the gravity of offences and severity of punishment.

6. The ABLAPL is disposed of accordingly.

( Chittaranjan Dash ) Judge

Bijay

Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Oct-2023 12:49:22