Point of Law: While considering any application seeking pre-arrest bail, High Court has to balance two interests: i.e. that the power is not so used as to convert jurisdiction into that under Section 438 of Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima-facie offence is made out as shown in FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law.

JUDGMENT :

CHANDRA DHARI SINGH, J.

1. The present application has been filed under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) on behalf of the petitioner/applicant praying anticipatory bail in FIR bearing No. 1251/2021 registered under Police Station Nihal Vihar, Delhi for offence punishable under Sections 376/506 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 3(1)(r) and 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “SC/ST Act”).

2. As per the FIR the prosecution story is as follows:

(i) The Complainant is a divorced woman belonging to Scheduled Caste (Pasi) category and is currently residing at House No. 63, Kunwar Singh Nagar, Temple Galli, Nangloi, Delhi-110041 along with her daughter.

(ii) Complainant got married to Sh. Shashi Shekhar on 31st December, 1999 according to Hindu rites and ceremonies.

(iii) The Petitioner/Applicant used to regularly visit Complainant's matrimonial house. He continued to visit her even after her divorce.

(iv) One day the Petitioner/Applicant made physical relations forcefully with the Complainant and took objectionable pictures of her and also threatened to kill her and her daughter, if she told anything about it to anyone.

(v) The Petitioner/Applicant used to extort money from complainant by blackmailing her. The Petitioner/Applicant had extorted around Rs. 15,00,000/- (Rupees Fifteen Lakhs) and a gold chain of Rs. 58,407/- (Rupees Fifty Eight Thousand Four Hundred Seven) from the complainant.

(vi) After reaching at her parental residence in Patna, the Complainant tried contacting the Petitioner/Applicant several times, but he did not answer her calls. After returning back to Delhi, Complainant came to know that the Petitioner/Applicant has already married with another girl.

(vii) On 20th September, 2021, the Complainant accidently met the Petitioner/Applicant near Narayan Dharamkanta and asked him as to why he has cheated her. The Petitioner/Applicant replied that why should he marry a Pasi (Harijan) women like her. He has also given threat to the complainant.

(viii) On 28th September, 2021, the Complainant gave a complaint to the concerned Police station. On the said complaint, on 31st October, 2021, the FIR bearing No. 1251/2021 was registered at Police Station Nihal Vihar for the offences punishable under Sections 376/506 of the IPC and Sections 3(1)(r) and 3(1)(s) of SC/ST Act. The case was also registered against the Petitioner/Applicant, regarding extortion of money on the pretext of giving false promise of marriage, spewing death threats, abusive language and passing casteist remarks.

(ix) The Petitioner/Applicant moved an anticipatory bail application before the Learned Sessions Judge, West, Tis Hazari Court. Vide order dated 18th December, 2021, the Court below had dismissed the bail application filed under Section 438 of the Cr.P.C. The relevant observations of the order dated 18th December, 2021 are as follows:

“I have considered rival arguments and the case law relied by Ld. Counsel for applicant.

I am in agreement with the submissions of Ld. state Counsel that the anticipatory bail is not maintainable in view of the fact that there are prima-facie allegations against the applicant that he made physical relations with the complainant without her consent and hence, prima-facie offence u/s 3 (w) of the SC/ST Act. Also the Hon’ble Supreme court of India in Prithvi Raj (supra) has clearly held that the provisions of 438 Cr.P.C. shall not apply in case prima-facie offence under SC/ST Act is made out, which is the case at Hand. Therefore, in view of the judgment Prithvi Raj (supra), I am of the considered view that the present application is not maintainable and is accordingly dismissed.

Copy of this order be given dasti to Ld. Counsel for applicant.”

3. Mr. Amit Yadav, learned counsel appearing on behalf of the Petitioner submitted that the Petitioner/A