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DELHI HIGH COURT
Anup Jairam Bhambhani, J.
(Via Video-conferencing )
Danish Khan @ Saahil —Applicant
versus
State (Govt. of NCT of Delhi) —Respondent
Bail Appl. 3497 of 2020
Decided on 5.1.2021
(A) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989—Section 3(2)(v) and 18—Criminal Procedure Code, 1973—Section 438—Indian Penal Code, 1860—Sections 376/354D/506—Anticipatory bail petition—Essential allegation against applicant in FIR is that on the false promise of marriage applicant committed offence under Section 376 IPC upon prosecutrix, apart from also committing offences as defined under Sections 354D and 506 IPC—Subsequently, based upon statement recorded under Section 164 Cr.P.C., offence under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 was also added against applicant—For Section 3(2)(v) of SCST Act to be applicable it is necessary that an offence under IPC, punishable with a prison sentence of 10 years or more, should have been committed on a member of a Scheduled Caste or a Scheduled Tribe particularly for reason that such person is a member of such caste or tribe—In FIR and in her statement recorded under Section 164 Cr.P.C., prosecutrix does not allege that she was sexually victimised by reason of her caste status all the way from 2013 to 2019, for which period she had known applicant—There is no allegation that alleged caste slur was made in presence of any third party or in a public place, thereby not making out a case of a caste slur having been made “within public view” as required in Section 3(1)(r) and Section 3(1)(s) of SCST Act—Absent applicability of Section 3(2)(v) of SCST Act, or even Sections 3(1)(r) and 3(1)(s) of SCST Act, question of Section 18 or Section 18A(2) of SCST Act getting triggered does not arise—Provisions of Section 438 Cr.P.C. are available to applicant and present anticipatory bail application is maintainable. (Paras 17, 18, 19 and 20)
(B) Criminal Procedure Code, 1973—Section 438—Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989—Section 3(2)(v) and 18—Indian Penal Code, 1860—Sections 376/354D/506—Anticipatory bail petition—It is prosecutrix’s own case that she had been in a relationship with applicant since 2013, during which she had also travelled outstation with him—Prosecutrix has also said in her Section 164 Cr.P.C. statement that applicant had sought concurrence of her parents for their marriage to which her parents had even agreed—Anticipatory bail granted—In matter of grant of anticipatory bail there is no distinction whether a person apprehends arrest at hands of police or against warrants issued by a subordinate court. (Paras 28, 29, 30 and 31)
Result: Application allowed.
JUDGMENT
Anup Jairam Bhambhani, J.—The applicant, who is accused in case FIR No. 325/2020 dated 20.08.2020 registered under sections 376/354D/506 of the Indian Penal Code (‘IPC’, for short) at P.S.: Wazirabad, seeks anticipatory bail under section 438 of the Code of Criminal Procedure (“Cr.P.C.”, for short).
2. Notice in this application was issued on 11.11.2020; whereupon status report dated 18.11.2020 has been filed by the State alongwith a copy of the prosecutrix’s statement dated 22.08.2020 recorded under section 164 Cr.P.C.
3. The essential allegation against the applicant in the FIR is that on the false promise of marriage the applicant committed the offence under section 376 IPC upon the prosecutrix, apart from also committing offences as defined under sections 354D and 506 IPC. Though initially the FIR was registered only under sections 376/354D/506 IPC, subsequently, based upon statement dated 22.08.2020 recorded under section 164 Cr.P.C., the offence under section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 (‘SCST Act’, for short) was also added against the applicant.
Maintainability of a section 438 Cr.P.C. application in view of section 18 of the SCST Act
4. At the very outset, Mr. Tarang Srivastava, learned APP appearing on behalf of the State has taken a preliminary objection as regards the maintainability of the present anticipatory bail application under section 438 Cr.P.C. on the basis that section 18 of the SCST Act bars application of section 438 Cr.P.C. to any case involving an accusation that a person has committed an offence under that statute. Mr. Srivastava submits that section 18 of the SCST Act applies to the present case since section 3(2)(v) of that Act has been added to the offences alleged against the applicant.
5. Learned APP draws attention to the following portions of the section 164 Cr.P.C. statement of the prosecutrix:
(Matter in Other Language)
6. Furthermore, Mr. Srivastava points-out that the offence under the SCST Act is made-out in view of what the prosecutrix said in her section 164 Cr.P.C. statement as follows :
(Matter in Other Language)
7. It is Mr. Srivastava’s contention that in view of the above portions of the section 164 Cr.P.C statement, it is evident that the offences under sections 376/354D/506 IPC have been committed by the applicant knowing that the prosecutrix is a member of a Scheduled Caste, as engrafted in section 3(2)(v) of the SCST Act; by reason of which, section 18 of the SCST Act places a bar on the applicability of section 438 Cr.P.C., and the present application is not maintainable at all.
8. Furthermore, Mr. Srivastava relies upon the decision of the Hon’ble Supreme Court in Prathvi Raj Chauhan vs. Union of India & Ors., (2020)4 SCC 727, arguing that it has been held that the bar on the applicability of section 438 Cr.P.C. shall not apply to cases under the SCST Act only if “… the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act …”, which, Mr. Srivastava contends is not the case here since the allegations made in the section 164 Cr.P.C. statement of the prosecutrix are unequivocal and make-out a clear case under section 3(2)(v) of the SCST Act. Learned APP further contends that in Prathvi Raj Chauhan (supra), the Hon’ble Supreme Court has also held that the jurisdiction under section 438 Cr.P.C. should be “… used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR …”; and further that the Hon’ble Supreme Court has also observed in that judgment that “… a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.”.
9. Mr. Srivastava has further referred to the decision of the Hon’ble Supreme Court in Vilas Pandurang Pawar & Anr. vs. State of Maharashtra & Ors., (2012)8 SCC 795: 2012 (6) Supreme 605, which holds to the same effect. He also draws the attention of
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