HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No.806 of 2020

Pavas Sharma, S/o Shri Tarun Kumar Sharma, Aged About 24 Years R/o

E-13, Medical College, Colony, Jail Road, Raipur, District – Raipur

Chhattisgarh., District : Raipur, Chhattisgarh

                                                                                               —- Petitioner

Versus

1.State Of Chhattisgarh Through – The Station House Officer, Police Station-

Gole Bazar, Raipur, District – Raipur Chhattisgarh., District : Raipur,

Chhattisgarh

2.Payal Kosle, D/o Shri L M Kosle, Aged About 23 Years R/o Santoshi

Nagar, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

                                                                                                —- Respondents

Section 3(2)(V)(a) Scst Act – The offence under Section 3(2)(V)(a) of the Act of 1989 would be prima facie made out only when the allegation by the victim is that the victim was assaulted on the ground that victim belonged to reserved category or where material collected during investigation prima facie shows that the victim was assaulted for the reason that he/she belonged to reserved category.
Section 18 of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act,1989 – The bar created under Section 18 of the Act of 1989 shall not apply and in appropriate cases of exceptional nature, benefit of anticipatory bail could be admitted to the applicant.

The aforesaid view of the Supreme Court makes settled legal position that even in cases, where enhanced punishment is provided as contained under Section 3(2)(V)(a) of the Act of 1989, in order to convict a person under that provision, the prosecution is required to show that the offence was committed on the person belonging to reserved category on the ground that the person was member of reserved category and where there is no such material, offence under Section 3(2)(V)(a) of the Act of 1989 could not be said to be prima facie made out. The offence under Section 3(2)(V)(a) of the Act of 1989 would be prima facie made out only when the allegation by the victim is that the victim was assaulted on the ground that victim belonged to reserved category or where material collected during investigation prima facie shows that the victim was assaulted for the reason that he/she belonged to reserved category.

11.As stated hereinabove, there is no whisper in the written complaint or the case diary statement that the reason for which the victim was assaulted by the applicant was because of she belonging to reserved category. On the contrary,the applicant and the prosecutrix were friend and when they were going for a ride, dispute took place and the applicant assaulted the prosecutrix for the reason that she was meeting another lady as also on the ground that victim was going to inform appellant’s father regarding assault. Therefore, it has to be held that the complainant does not make out a prima facie case for applicability of Section 3(2)(V)(a) of the Act of 1989 and therefore, bar created under Section18 shall not apply. In this regard, it is useful to refer to the observations made by the Hon’ble Supreme Court in the case of Prathvi Raj Chouhan vs. Union of India and Others 2, wherein the Supreme Court had an occasion to consider the maintainability of application under Section 438 of Cr.P.C. and it was held as below:-

12.“The Court can, in exceptional cases, exercise power under Section 482CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.

13.The challenge to the provisions has been rendered academic. In view of the aforesaid clarifications, we dispose of the petitions.S. Ravindra Bhat, J. (concurring)– I am in agreement with the judgment proposed by Arun Mishra, J. as well as its conclusions that the challenge to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)(Amendment) Act, 2018 must fail, with the qualifications proposed in the judgment with respect to the inherent power of the court in granting anticipatory bail in cases where prima facie an offence is not made out. I would however,supplement the judgment with my opinion.”

12.In view of above, this Court finds that merely because offence under Section 3(2)(V)(a) Of The Act Of 1989 was registered against the applicant,learned Court below rejected the application holding It to be not maintainable in view of the provisions contained under Section 18 of the Act of 1989, without taking into consideration the law laid down by the Supreme Court in the case of Prathvi Raj Chouhan (supra). Even though, offence under the Act of 1989 is registered, where application for grant of anticipatory bail is filed, the Court is required to apply its mind to the relevant provisions of law and considerations as specified by the Supreme Court in the case of Prathvi Raj Chouhan(supra) and if material on record leads to satisfaction that the complaint does not make out aprima facie case, for applicability of the provisions of the Act of 1989, the bar created under Section 18 of the Act of 1989 shall not apply and in appropriate cases of exceptional nature, benefit of anticipatory bail could be admitted to the applicant. The learned Court below committed patent illegality in mechanically rejecting the bail application. Order of rejection, therefore, cannot be sustained in law, and therefore set aside.

13.Accordingly, the appeal is allowed.

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