In an appeal against rejection of anticipatory bail, the High Court of Jharkhand held that the bar of Section 18 of the SCT Act applies to offences under Section 3(2)(v) and refused bail despite the appellant's contention on merit.
The appeal was dismissed; the order rejecting the anticipatory bail petition was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 115 of 2021
.... Rajesh Kumar Mahato @ Rajesh Kumar Saw .… Appellant Versus
.... CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR
For the Appellant : Mr. Indrajit Sinha, Adv. For the State : Mr. Sanjay Kumar Srivastava, APP
The matter was taken up through Video Conferencing. Learned counsel for the parties had no objection with it and submitted that the audio and video qualities are good.
05/20.07.2021
Heard learned counsel for the appellant and learned counsel for the State.
The appellant has preferred this appeal under Section 14(A) (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, being aggrieved and dissatisfied by the order dated 11.02.2021 passed by the learned District & Additional Sessions Judge-IV-cum-Special Judge, SC/ST, Dhanbad in ABP No.70 of 2021, in connection with Barwadda P.S. Case No.208 of 2020 corresponding to SC/ST Case No.94 of 2020, whereby the anticipatory bail petition of the appellant was rejected.
It has been argued by learned counsel for the appellant that bar provided under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act is not attracted in the case of offences described under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act. It has been submitted that under the above section only enhanced punishment has been prescribed and in fact this offence has to be treated as an offence under the Indian Penal Code and not under the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act. It has been further argued that there is delay in lodging the F.I.R. and medical evidence also does not support the allegation. Thus, on merit the appellant has a good case and the bar provided in Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act is not applicable in the case of allegation under Section 376 of the Indian Penal Code. On above facts, prayer for anticipatory bail has been made.
Learned counsel for the State has opposed the prayer.
Having heard the parties and from perusal of records, it appears that the alleged victim girl was known to the appellant and she was roaming with the appellant who subsequently has committed rape upon her against her will. The victim is a member of SC and the appellant is not a member of SC/ST.
So far as contention of the appellant is concerned, whereby, it has been submitted that the offence prescribed under Section 376 of the IPC, although incorporated in Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act is merely for the purpose of enhancement of punishment and the bar of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act is not applicable.
Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act is quoted herein under:-
“ 3. Punishments for offences of atrocities-
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine;”
From mere perusal of Section, it is evident that additional ingredients have been incorporated apart from enhanced punishment i.e. crime must have been committed by a person, not being a member of SC/ST, against the victim who is a member of SC/ST.
Legislation by reference is known procedure of legislation. This procedure has been adopted and offences of the Indian Penal Code have been declared as offences under SC/ST Act, if committed by a non member of the SC/ST against a member of SC/ST. Thus, the contention of the appellant is not acceptable and bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act is applicable in the present case. So far as merit is concerned, the victim lady has clearly reiterated the allegation in her statement made under Section 164 of the Cr.P.C.
Considering the bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act and the nature of allegation, I am not inclined to extend the benefit of Section 438 of the Cr.P.C. to the appellant. Accordingly, the present appeal is, hereby, dismissed.
(Rajesh Kumar, J.)
Shahid/
3 issues framed by the court
Whether the bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act applies to offences under Section 3(2)(v) of the same Act.
Whether the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is to be treated as an offence under the Indian Penal Code for anticipatory bail p
Whether anticipatory bail should be granted to a non-SC/ST accused raping a member of SC/ST under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
6 provisions across 3 enactments
Rajesh Kumar Mahato @ Rajesh Kumar Saw
The State of Jharkhand
Karuna Devi
Rajesh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
