ORDER :

This appeal arises out of order dated 13/10/2020 by which, learned Sessions Judge, Mungeli has rejected application for grant of anticipatory bail filed by the appellant.

2. The appellant is apprehending his arrest in connection with Crime No.541/2020 registered at Police Station – City Kotwali, District – Mungeli (CG) for alleged commission of offences under Section 363, 366, 376, 450 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act of 1989).

3. Prosecution case is that the appellant and co-accused abducted minor and it is alleged that later on, the minor was taken to another place and there, the co-accused committed rape on the prosecutrix whereas the present appellant was guarding against any possibility of arrival of third person at the place where the co-accused was committing rape on the prosecutrix. Offence under Section 363, 366, 376, 450/34 of IPC as also offence under Section 4 of the POCSO Act against the appellant and the co-accused. After arrest, the present appellant applied for grant of regular bail under Section 439 of IPC and jurisdictional Court, (Special Judge, POCSO Act, Mungeli), vide order dated 28/09/2020, granted regular bail to the present appellant, taking into consideration that according to the story of the prosecution, while the co-accused was committing rape, the appellant was standing near the place of incident.

Later on, during investigation, the investigating agency collected evidence with regard to prosecutrix belonging to Scheduled Caste and therefore, added, under the same crime number, offence under Section 3 (2) (v) of the Act of 1989. Having come to know that now, offence under Section 3 (2) (v) of the Act of 1989 have been added after grant of bail, the appellant apprehended his arrest on account of addition of new offence and applied for grant of anticipatory bail before the Court below which was eventually rejected giving rise to the present appeal.

4. Learned counsel for the appellant argued that in the present case, the allegation of commission of offence of rape is against co-accused and not against the present appellant and that was one of the main operative reason to grant regular bail also. It is next contended that mere addition of offence under Section 3 (2) (v) of the Act of 1989 will not bar grant of anticipatory bail despite statutory bar under Section 18 of the Act of 1989 under all circumstances, but in appropriate cases, where it can be established to be an exceptional case of the nature as held by the Supreme Court in the case of Prathvi Raj Chauhan v. Union of India and ors., (2020) 4 SCC 727, benefit of anticipatory bail could be granted notwithstanding statutory bar under Section 18 of the Act of 1989.

Taking further his argument, he would argue that present is a case of exceptional nature because in the present case, neither in the FIR nor in the case diary statement or even in 164 CrPC statement, it has ever been stated by the prosecutrix that the offence of rape was committed on her since she was a member of scheduled caste. Therefore, even if the entire story of the prosecution, as reflected from the allegation of the prosecutrix, is taken on its face value, prima facie case under Section 3 (2) (v) of the Act of 1989 is not made out and therefore, in such a case, the appellant/accused is entitled to grant of anticipatory bail against accusation of Section 3 (2) (v) of the Act of 1989. He would submit that the other aspect making the case exceptional is that in respect of offence under Section 376 of IPC and other alleged offence, the appellant had already been granted regular bail taking into consideration his limited role and he was not the person who is alleged to have committed offence of rape. Therefore, the impugned order may be set aside and the appellant may be granted anticipatory bail. Learned couns