JUDGMENT :

NALIN KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the applicant, Shri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record.

2. Apprehending his arrest in Case Crime No. 133 of 2022, under Sections 376, 323, 504, 506, 328 IPC and 3 (2) (V) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Police Station-Civil Lines, District-Prayagraj the present anticipatory bail application has been moved by the applicant Brijesh.

3. The prosecution story as unfolded in the FIR is that the prosecutrix was intending to marry with co-accused Vishal Gupta and in this regard she was persuaded by the present applicant to go to Allahabad High Court with him and accordingly he took her to a hotel at Allahabad and thereafter after administering some intoxicant substance to her, in an unconscious state he committed rape with the prosecutrix and due to shame she did not disclose this incident to anyone. When co-accused Vishal Gupta came out from jail and the prosecutrix went to his home with the present applicant they kept her there for two days and again rape was committed to her. Subsequently Vishal Gupta refused to marry her and both of them threatened her for life. FIR was lodged on 30.3.2022 and investigation started, which culminated into charge sheet.

Applicability of Bar Created by Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

4. At the very outset learned A.G.A. has made a preliminary objection that the present anticipatory bail application moved under Sections 376, 323, 504, 506, 328 IPC and 3 (2) (V) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not maintainable as Sections 18 & 18A (2) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 specifically provide that:

“18. Section 438 of the Code not to apply to persons committing an offence under the Act-Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”

“18 A. (2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”

5. It is submitted that in view of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 above mentioned, the present anticipatory bail application is not maintainable.

6. Contending to that the learned counsel for the applicant has vehemently submitted that from perusal of the entire record no where even any whisper is found that the applicant at any stage of the case was known to the fact that the victim belongs to SC/ST community. It is further submitted that the alleged offence was not committed on account of the prosecutrix being a member of SC/ST community. Even in the statement of prosecutrix made under sections 161 or 164 Cr.P.C. or of other relevant witnesses made to the I.O there is no such averment that the prosecutrix belongs to SC/ST community and the accused was aware of that, hence the barring provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not apply to this case.

7. In support of her contention learned counsel for the applicant has relied upon the judgment of the Hon’ble Apex Court passed in Prathvi Raj Chauhan vs. Union of India, 2020 Law Suit (SC) 143 wherein the law propounded by the Hon’ble Apex Court is that if the complaint does not make out a prima facie case for applicability of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 the bar created by Sections 18 and 18 A of the said Act does not apply. Likewise, observations made in Subhash Kashinath Mahajan vs. State of Maharashtra, (2018) 6 SCC 454 in almost similar background also expound the same principle.

8. Section 3 (2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 19