Mihir Kumar Mishra Vs State of Odisha

The present application has been filed under Section 438 Cr.P.C. for releasing the Petitioners on anticipatory bail for alleged commission of offence under Sections 153(A), 34 of the Indian Penal Code read with Section 66 of I.T. Act read with Section 3(1)(r). 3(1)9u), 3(1)(v) of SC & ST (PA) Act. However, in view of the bar contained under S.C./S.T. (PA) Act, the present application u/s 438 Cr.P.C. is not maintainable. The provisions of section 438 Cr.P.C. is not applicable to the case registered involving an offence under the Scheduled

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Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The aforesaid issue has also been examined by the Hon'ble Supreme Court of India in the matter of Prathvi Raj Chauhan-vrs Union of India and others , reported in 2020(1) OLR (SC) 419 . In Paragraph-10 of the said judgment it has been held that provision of section 438 Cr.P.C. shall not apply to the case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocitics) Act, 1989. While saying so, the Hon'ble Supreme Court has further observed that if the complaint does not make out a prima facic case for applicability of the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the bar created by Sections 18 & 18-A of the Act shall not apply.

Further, this Court has also elaborately discussed the issue in the case of Pramod Kumar Ray and others-vrs.-State of Odisha , reported in (2017) 67 OCR 309 . In the light of the principle laid down by this Court in Pramod Kumar Ray (supra), the present bail application is being disposed of with the following observations.

The Petitioners shall surrender before the learned S.D.J.M., Nabarangapur in. Special G.R.Case No.1485 of 2021 arising out of Nabarangapur P.S.Case No.556 of 2021 on or before 17.08.2022. Seven days before the Petitioner surrenders before the said Court, they or their counsel shall serve a copy of the bail application or such number of copies of the bail application on the learned Public Prosecutor/Special Public

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Prosecutor, as required by him, for the purpose of notice to the victim or his/her counsel dependent.

Taking into consideration the nature of the offence as alleged against the Petitioners, it is directed that the Petitioner shall be released on interim bail by the learned S.D.J.M., Nabarangapur on the same day, he surrenders in the aforesaid case, pending disposal of the bail application on merit, at the time of final hearing of the case, on such terms and conditions as deemed just and proper.

The aforesaid order shall not be effective if the injuries sustained by the victim/victims are near fatal and victim/victims are still in bad shape. But, if the injuries are otherwise lesser and the victim/victims is/are hale and hearty, this observation shall not be effective and the Petitioner can be granted interim bail.