SC/ST Act | No Absolute Bar Against Grant Of Anticipatory Bail If Alleged Offences Prima Facie Not Made Out: Orissa High Court Reiterates

The Orissa High Court, on Thursday, reiterated that there is no absolute bar against grant of anticipatory bail to an accused under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ('the Act'), if no prima facie offence is made out.

While clarifying the implications of Section 18 and Section 18A of the Act, the Single Bench of Justice Sashikanta Mishra held –

“…there is no absolute bar against grant of anticipatory bail in cases under the SC & ST (PA) Act particularly when, the offences alleged to have been committed under the said Act are, prima facie, not made out.”

Brief Background

As per factual matrix of the case, X (real name withheld) developed physical relationship with accused and X on the promise of marriage. As a consequence of repeated sexual intercourse, X became pregnant. But the accused advised her to abort the foetus.

Therefore, X lodged an FIR against the accused and a case was registered against him under Sections 376(2)(n)/313/506 of IPC, Section 6 of POCSO Act and Sections 3(1)(r)/3(1)(s)/3(2)(va) of the SC/ST Act. In the course of investigation, it was revealed that X was a minor girl from the Scheduled Caste community whereas the accused was from general category.

After knowing about such relationship, the family members of X and villagers persuaded the accused to accept her as wife, which he did. After residing with her, the accused conspired with others to terminate the pregnancy of the victim for which he took her to a nursing home.

However, the victim gave birth to a premature baby girl. The accused refused to accept the baby and left the clinic with the victim. Subsequently, the baby was handed over to the petitioner (a doctor), who facilitated delivery of the baby. Apprehending his arrest in the case, the petitioner approached the High Court seeking anticipatory bail.

Court's Observations

The State challenged the maintainability of the application on the ground that Sections 18 and 18A of the Act bar the grant of anticipatory bail in cases under the SC & ST (PoA) Act. The Court, at the outset, held that there is no dispute that Section 18 & 18A of SC & ST (PoA) Act place bar for entertaining application under Section 438 of CrPC.

Then it went on to peruse the language used in both of the aforesaid provisions and held that ordinarily, an application under Section 438 of Cr.P.C. would not be maintainable where the offence under Section 3 of the SC & ST Act is involved.

The Bench then referred to the decision of the Apex Court in Prathvi Raj Chauhan v. Union of India & Ors. and judgments of the Orissa High Court in Dharani Pradhan v. State of Orissa and the Madras High Court in S. Ariharan and Ors. v. The Inspector of Police, Thirumangalam wherein it was commonly observed that there is no bar in entertaining an application under Section 438 of CrPC if offence under the Act is not prima facie made out.

Taking the above precedents into account, the Court also subscribed to the view that if offence under the Act is not prima facie made out then there is no bar in entertaining an application for anticipatory bail under Section 438 of the CrPC.

So far as the present case was concerned, the Court was of the view that there is not even a whisper of allegation against the petitioner by the victim-informant much less commission of any crime under the Act.

However, it opined, the apprehension of the petitioner of being arrested in this case is a justified one as he was the one who facilitated the delivery of the baby as the doctor and also took the abandoned baby to his home.

“Thus, there appears to be a slender link between him and the transaction in question, though not negatively. It is quite possible that police may subsequently take him to custody to elicit further information about the occurrence. To such extent therefore, it can be said that his apprehension is reasonable,” it added.

The Bench further observed that even if the petitioner was involved in the alleged occurrence, but there is no evidence forthcoming that he committed any offence under the Act. Therefore, it concluded that the application for anticipatory bail by the petitioner is perfectly maintainable and secondly, no prima facie case is made out against him under the Act.

Accordingly, the Court allowed his application directing that in the event of his arrest, he be released immediately after imposition of proper terms and conditions.

Case Title: Dr. Satyendra Prakash Verma v. State of Odisha & Anr.

Case No: ABLAPL No. 50 of 2024

Date of Judgment: January 25, 2024

Counsel for the Petitioner: M/s. Umesh Chandra Jena & A.S. Paul, Advocates

Counsel for the State: Mr. Sitikanta Mishra, Addl. Standing Counsel

Citation: 2024 LiveLaw (Ori) 10

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