The main legal point established in the judgment is the interpretation of section 3(2)(v) of the SCST Act and the application of section 18 and 18-A of the SCST Act in determining the maintainability of an anticipatory bail application.

JUDGMENT :

Via Video-Conferencing:

1. 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:

“HINDI”

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 :

“HINDI”

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), which holds to the same effect. He also draws the attention of this court to the decision of the Hon’ble Supreme Court in Manju Devi vs. Onkar