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Judgment
This appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (hereinafter referred to as “Special Act”) has been filed against the order dated 04.05.2022 passed by Special Judge (SC/ST Act), Jashpur rejecting the application u/s 438 CrPC in connection with the Crime No. 28/2021 registered at Police Station Bagbahar District Jashpur, for the offence punishable under Sections 294, 323, 34, 363 IPC and 3 (1)(d) 3(2)(v-a) of the Special Act.
Case of the prosecution in short is that on 11.02.2021 the complainant lodged a report to the effect that in the night when the appellant along with his friend Shatrughan and Resham was measuring the land, the complainant objected to the same, and due to which they filthily abused her in the name of caste and assaulted her also.
Counsel for the appellant submits that the appellant is innocent and has been implicated in a false case. He submits that except the offence under the Special Act, all other offences are bailable in nature. He submits that no offence under the Special Act is made out against the appellant as there was a dispute between the complainant and her brother, and the appellant was simply present there to see the measurement work, and that there was no intention of the appellant to commit any offence under the Special Act. Reliance is placed on the orders of co-ordinate Bench of this Court in CRA No. 1556 of 2021 dated 7.2.2022 and in CRA No. 845 of 2020 dated 14.1.2021.
State counsel however supports the order impugned to be just and proper and submits that if on the basis of FIR and the statement of the complainant the offence under the Special Act is made out, there is a specific bar under Section 18 and 18-A (2) of the Special Act, therefore this appeal is not maintainable.
Heard counsel for the parties and perused the documents on record as also the case diary.
From the FIR it is prima facie apparent that the offence under the Special Act is made out against the appellant. Specific allegation is there in the statement of the victim recorded under Section 161 CrPC. Eyewitness Madhusudan has also supported the case of the prosecution. Thus on the basis of the material collected by the prosecution it cannot be said that the applicant has not committed the offence under the Special Act. Provisions of Section 18 and 18-A are reproduced as under for ready reference:
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.
[18A. No enquiry or approval required.- (1) For the purposes of this Act, - (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,
against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act, nothwithstanding any judgement or order or direction of any Court.
Thus in the facts and circumstances of the case and the relevant provision referred to hereinabove, this Court finds that the bar under these sections would be attracted, and therefore the appeal being without any substance is liable to be and is hereby dismissed.
At this stage, counsel for the appellant submits that if the appellant surrenders and moves an application under Section 439 CrPC, the trial Court may be directed to decide the same at the earliest.
Accordingly, it is directed that if the appellant surrenders and moves an application for regular bail, the concerned Court shall make every endeavour to decide the same as early as possible preferably on the same day.
With the above, the appeal is dismissed.