This High Court dismissed an anticipatory bail application filed by Braj Mohan. The court held that the application was not maintainable under Section 438 Cr.P.C. because Section 18 of the SC/ST Act bars it, and the record showed a prima facie case under the Act.
Application for anticipatory bail dismissed as not maintainable.
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Court No. - 84
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2331 of 2023
Applicant :- Braj Mohan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ankit Agarval Counsel for Opposite Party :- G.A.,Krishna Kant Dubey,Santosh Kumar Dubey
Hon'ble Nalin Kumar Srivastava,J.
Criminal Misc. Exemption Application No.1 of 2023 is allowed.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the material available on record.
Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Braj Mohan till the conclusion of the trial in Case Crime No.446 of 2022, under Sections 323, 427, 504, 506 IPC and Section 3 (1) (Da) (Dha) of S.C./S.T. Act, Police Station - Debai, District – Bulandshahr.
The applicant in the present anticipatory bail application is alleged to have committed offences punishable under Sections 323, 427, 504, 506 IPC and Section 3 (1) (Da) (Dha) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The applicant filed the anticipatory bail application under Section 438 Cr.P.C. before the Special Judge, S.C./S.T. Act, Bulandshahr, which was dismissed vide order dated 19.01.2023.
It is submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. He has not committed any offence. He has been falsely implicated in this case on account of civil dispute pending between the parties and to put pressure upon the applicant to withdraw the said suit, present F.I.R. has been lodged. Allegations levelled against the applicant are false. It is further submitted that after investigation, charge-sheet has been submitted in the matter. Punishment prescribed in the alleged offences is upto seven years. Applicant has fully cooperated during investigation. If the allegations are taken to be true, then also offence under S.C./S.T. Act is not made out. In support of his contention, learned counsel for the appellant has also relied upon the decision of the Hon'ble Apex Court in the
case of Hitesh Verma Vs. State of Uttarakhand & another, 2020 (10) SCC 710 , pertaining to S.C./S.T. Act and has contended that the the applicant's case is squarely covered under Section 438 Cr.P.C. The special court has rejected the anticipatory bail of the applicant on the ground that as per Section 18 of the Act, the anticipatory bail is not maintainable. It is further submitted that if the applicant is enlarged on bail, he will not misuse the liberty and will cooperate with the investigation. The applicant has apprehension of his arrest by the police any time.
Learned A.G.A. as well as learned counsel for the informant opposed the prayer and submission made by the applicant.
Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides that "Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."
However, after the decision of the Hon'ble Supreme Court in Prathvi Raj Chauhan vs. Union of India & Others, (2020) 4 SCC 727 , the legal position is that an anticipatory bail in a crime where an offence under SC/ST is alleged can be granted only if the Court is satisfied that the allegations levelled do not prima facie make out a case under SC/ST Act. The position of law remains same even after the enactment of Section 18A of the Act.
Under SC/ST Act, there is special procedure and Special Courts/Exclusive Special Courts for dealing with the cases involved in the offences against the scheduled castes and scheduled tribes. A reading of the provisions of Sections 2(d), 2(bd) and Section 14 categorically indicate that the said offences are exclusively triable by Special Courts as contemplated by the legislature.
It is further to be kept in mind that under the special provisions of the SC/ST Act, the right of the victim and the witnesses are on a higher pedestal than provided under Cr.P.C. From the entire scheme of the act, including the powers of the Special Courts, it can be concluded that the Act has given primacy and exclusivity to the Special Courts over normal Courts.
Thus, in view of the aforesaid principle enumerated above, the Special Court while dealing with an application for anticipatory bail must ascertain whether a prima facie case for an offence punishable under the Act is made out, then only the application for
anticipatory bail can be considered.
In the case in hand, charge-sheet has been filed against the accused applicant under Sections 323, 504, 506, 427 IPC and Sections 3 (1) (Da) and 3 (1) (Dha) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 which reveals the fact that sufficient evidence has been found against the accused applicant in the matter and prima facie offence under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also made out and on the basis of record, the court is satisfied that the allegations levelled against the accused applicant prima facie make out a case under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence, in view of the provisions of Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also in the light of the judgment of Hon'ble Apex Court in Prathvi Raj Chauhan (supra), present anticipatory bail application is not maintainable.
In view of the aforesaid observations, the present anticipatory bail application is dismissed, as not maintainable.
Order Date :- 24.3.2023 ss
Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad
2 issues framed by the court
Whether an application for anticipatory bail under Section 438 Cr.P.C. is maintainable when the applicant faces charges under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) A
Whether the allegations in the present case prima facie make out a case under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Colour shows how this judgement treated each authority
Hitesh Verma Vs. State of Uttarakhand & anotherReferred¶9
Hitesh Verma Vs. State of Uttarakhand & another, 2020 (10) SCC 710 · Who else cites this
Prathvi Raj Chauhan vs. Union of India & OthersExplained¶13
Prathvi Raj Chauhan vs. Union of India & Others, (2020) 4 SCC 727 · Who else cites this
2 provisions across 2 enactments
Braj Mohan
State Of U.P.
Sandeep Sharma
As recorded by the court registry
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