IMPORTANT POINT
Where evidence collected during investigation did not show that crime committed against a scheduled caste victim was committed with intention that victim was scheduled caste and merely that victim happened to belong to scheduled caste, bar u/s. 18 of Scheduled Castes Act would not operate to maintainability of anticipatory bail.

ORDER (ORAL)

Sunil Kumar Sinha, J. - This is an application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No. 130/2000, registered at Police Station - Kusmunda, Distt. Korba ((C.G) for the offence punishable under Section 376(2)(g) of I.P.C., and section 3(2)(v) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act).

2. The case of the prosecution is that the prosecutrix Ku. Rameshwari, aged about 13 years, belonging to Gond Caste, was brought by the co-accused persons namely Munnu Dubey and Radha Devi (husband and wife) from her village for some domestic work in the month of March 2000 after promising to pay Rs. 500/- per month to her parents. The allegations are that few days thereafter one stout person came to their house and these two co-accused persons insisted the prosecutrix to have sexual intercourse with him. The prosecutrix denied it and ultimately nothing was done on the said day. The further allegations are that thereafter on 24.3.2000 the prosecutrix was taken to Sarvamangala Mandir, Korba where again the said person was called and the girl was handed over to him, who performed sexual intercourse with the girl. After the said incident which is said to have taken place on 24.3.2000, a written report was lodged by the prosecutrix on 31.3.2000 in Darri Police Station which was recorded in Roznamcha Sanha No. 1279. Later on, an offence u/s 376 read with section 34 IPC and section 3(2)(v) and 3(1)(xi) of the Special Act was registered and after investigation the charge sheet was filed against the co-accused persons Munnu Dubey and Radha Devi on 26.6.2000 in the Court of Judicial Magistrate First Class, Katghora. It was mentioned in the charge sheet that the investigation against accused Rajkumar Agrawal (present applicant) is going on and a supplementary charge sheet shall be filed in due course of time. (Please see Annexure A-2 Pg.17 of the Paper book).

3. During the course of further investigation, this applicant was called by the police on or before 23.7.2000 and was put to Test Identification Parade on the same date, which was conducted by the Sub-Divisional Magistrate, Katghora, but the girl could not identify this applicant in the said T.I.P. (Please see Annexure A-3). It is after this investigation, the City Superintendent of Police, Katghora, gave an application to the concerned Court on 13.8.2000 stating that since the girl could not identify the present applicant in Test Identifcation Parade, the prosecution is not willing to file charge sheet against the applicant, who was suspected in this case.

4. After filing of such an application by the police regarding non-filing of charge sheet against the applicant, the Additional Public Prosecutor moved an application u/s 319 Cr.P.C., before the Special Judge, Bilaspur, on 03.11.2000 praying that this applicant may also be made an accused on the basis of material available in the charge sheet. This application was taken up for hearing by the Court and on 17.1.2001, the said Court passed an order to the effect that since the evidence has not begun so far, therefore, no orders on this application, filed u/s 319 Cr.P.C. can be passed and necessary orders on this application shall be passed at a latter stage.

5. Thereafter on 12.10.2002, the prosecutrix was examined as P.W.4 and in para 4 of her examination-in-chief, she categorically made statement about commission of sexual intercourse by this applicant by taking his name and by making various other allegations. It is after this evidence of prosecutrix, the Court took cognizance in the matter and passed its order dated 6.12.2006 u/s 319 Cr.P.C. and issued a warrant of arrest against the applicant. When the applicant came to know about the said development, he filed an application for anticipatory bail before the Sessio