ORDER :— This is an application filed under S. 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No. 130/2000, registered at Police Station Kusmunda, Distt. Korba (C.G.) for the offence punishable under S.376(2)(g) of I.P.C. and S. 3(2)(v) and 3(l)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act).
2. The case of the prosecution is that the prosecutrix Ku. Rameshwari, aged about 13 years, belonging to Gond Caste, was brought by the co-accused persons namely Munnu Dubey and Radha Devi (husband and wife) from her village for some domestic work in the month of March, 2000 after promising to pay Rs. 500/- per month to her parents. The allegations are that few days thereafter one stout person came to their house and these two co-accused persons insisted the prosecutrix to have sexual intercourse with him. The prosecutrix denied it and ultimately nothing was done on the said day. The further allegations are that thereafter on 24-3-2000 the prosecutrix was taken to Sarvamangala Mandir, Korba where again the said person was called and the girl was handed over to him, who performed sexual intercourse with the girl. After the said incident which is said to have taken place on 24-3-2000, a written report was lodged by the prosecutrix on 31-3-2000 in Darri Police Station which was recorded in Rosnamcha Sanha No. 1279. Later on, an offence u/S. 376 read with S. 34, I.P.C. and S. 3(2)(v) and 3(l)(xi) of the Special Act was registered and after investigation the charge-sheet was filed against the co-accused persons Munnu Dubey and Radha Devi on 26-6-2000 in the Court of Judicial Magistrate First Class, Katghora. It was mentioned in the charge-sheet that the investigation against accused - Raj kumar Agrawal (present applicant) is going on and a supplementary charge-sheet shall be filed in due course of time. (Please see Annexure A-2 Pg. 17 of the paper book).
3. During the course of further investigation, this applicant was called by the police on or before 23-7-2000 and was put to Test Identification Parade on the same date, which was conducted by the Sub-Divisional Magistrate, Katghora, but the girl could not identify this applicant in the said T.I.P. (Please see Annexure A-3). It is after this investigation, the City Superintendent of Police, Katghora, gave an application to the concerned Court on 13-8-2000 stating that since the girl could not identify the present applicant in Test Identification Parade, the prosecution is not willing to file charge-sheet against the applicant, who was suspected in this case.
4. After filing of such an application by the police regarding non-filing of charge-sheet against the applicant, the Additional Public Prosecutor moved an application u/S. 319. Cr. P.C., before the Special Judge, Bilaspur, on 3-11-2000 praying that this applicant may also be made an accused on the basis of material available in the charge-sheet. This application was taken up for hearing by the Court and on 17-1 -2001, the said Court passed an order to the effect that since the evidence has not begun so far, therefore, no orders on this application, filed u/S. 319, Cr. P.C., can be passed and necessary orders on this application shall be passed at a later stage.
5. Thereafter on 12-10-2002, the prosecutrix was examined as P.W. 4 and in para 4 of her examination-in-chief, she categorically made statement about commission of sexual intercourse by this applicant by taking his name and by making various other allegations. It is after this evidence of prosecutrix, the Court took cognizance in the matter and passed its order dated 6-12-2006 u/S. 319, Cr. P.C. and issued a warrant of arrest against the applicant. When the applicant came to know about the said development, he filed an application for anticipatory bail before the Sessions Court and when the said application was dismissed, this application has been filed before this Court.
6. Learned senior counsel, appearing for the applicant, argues that the matter relates to March, 2000 in which a report was lodged on 31-3-2006 but the applicant was not named in the said report. He submits that thereafter, the charge-sheet was also filed against two persons and it was mentioned in the charge-sheet that a supplementary charge-sheet shall be filed against the applicant after further investigation and the prosecution conducted a test identification parade on 23-7-2000 and when the prosecutrix did not identify the applicant, an application was filed before the Court saying that now the prosecution is not willing to file the charge-sheet against the applicant but when the prosecutrix made statement taking the name of applicant, a warrant of arrest has been issued against him taking recourse to the provisions of S. 319, Cr. P.C. His submission is that if the applicant was well known to the prosecutrix, as she is taking his name in her Court statement vide para 4, then there was no reason with her for not disclosing the same at early stages i.e., at the stage of giving a written report dated 31 -3-2000 and "thereafter at the stage of her statement u/S. 161, Cr. P.C. etc., and further she was not prevented from identifying the applicant when he was put to test identification parade before her on 23-7-2000 which was conducted by the Sub-Divisional Magistrate. His submission is that the statement of the prosecutrix appears to be an exaggeration, which, prima facie, should not be given much weightage as this development has taken place almost after 2 years and 7 months. He also submits that the applicant is ready to participate in the trial Court as he has already appeared before the trial Court on many occasions for defending the application filed u/S. 319, Cr. P.C., and no fruitful purpose would be served in sending the applicant to jail, therefore, his application for anticipatory bail should be allowed in the interest of justice.
7. On the other hand, learned State counsel opposes the bail application. Firstly, he takes the ground that since the Court has taken cognizance u/Ss. 3(2)(v) and 3(l)(xi) of the Special Act, therefore, an application for grant of anticipatory bail u/S. 438, Cr. P.C. would not be maintainable. On merits he argues that the prosecutrix has taken the name of this applicant in her Court statement, therefore, there is a prima facie case against him and he should not be released on anticipatory bail.
8. So far as the maintainability of the petition u/S. 438, Cr. P.C. is concerned, the law is well settled on the point. The point raised by learned State counsel is no longer res integra. It has been held that if the contents of the F.I.R. or the complaint disclose the commission of offence under the Special Act, the Courts would not be justified in entering into a further enquiry by summoning the case diary or any other material as to whether the allegations are true or false or whether there is any preponderance of probability for commission of such an offence. At this stage, the Court cannot examine and scrutinize the record of the case in order to ascertain the veracity of the F.I.R. or the complaint. The provisions of S. 18 of the Act, 1989 put a complete bar against the entertainment of an application for anticipatory bail where prima facie the contents of the F.I.R. disclose the ingredients of the commission of the offence under the Act of 1989 which is apparent from the perusal of the section itself and thus the Court at the most would be required to evaluate the F.I.R itself with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence, then the Court would not be justified in entering into an enquiry as to the reliability or a genuineness or otherwise of the allegations made in the F.I.R. or the complaint. Please see 2004 (1) CGLJ 162, Satya Prakash v. State of C.G.
9. It has also been held by High Court of Madhya Pradesh in the matter of Dule Singh v. State of M.P. through Police Rajgarh, 1993 (1) MPJR 223, that a strict construction should be placed on the word "accusation" within the meaning of S. 18 of the Act. As such the "intention" or "intent" which is material ingredient of the offence u/S. 3(l)(x) (as it then was) of the Act not being clearly stated by the witnesses and there being no statement that the offence was committed because the complainant belonged to Scheduled Castes, it cannot amount to an 'accusation' of an offence within the meaning of S. 18 of the Act so as to bar an application u/S. 438, Cr. P.C.
10. The High Court of Orissa has also held in the matter of Ramesh Prasad Bhanja v. State of Orissa, 1996 Cri LJ 2743 that if no prima facie case u/S. 3 of the Act has been made out, it cannot be said that there is an "accusation of commission of an offence under the Act" and in that case there can be no hesitation to say that the applicability of the provision of S. 438 of the Code is not excluded.
11. On many occasions, it has been noticed by this Court that in the matter of commission of alleged offences under the I.P.C, the prosecution agencies are straightway utilising the provisions of Special Act only on the ground that the victim of the offence happens to be a member of a Scheduled Castes or a Scheduled Tribes. The factor, which would govern the applicability of the provisions of Special Act, would not be only the caste of the victim, but the essentials are that firstly the ingredients of the offence alleged, are inherently attracted and secondly, that the victim belongs to a particular caste or tribe. The very fact that the victim happens to be a girl belonging to Special Caste or Tribe, by itself does not attract the provisions of Ss. 3(2)(v) and 3(l)(xi) of the Special Act, unless there is some prima facie material to show that the offence has been committed against a person on the ground that she is a member of Scheduled Castes or Scheduled Tribes. That is to say that if the offence is not committed on the ground or for the reasons that the victim belongs to Scheduled Castes or Scheduled Tribes, the provisions of S. 3(2)(v) or 3(l)(xi) of the Special Act would not be attracted as the prima fade evidence of this nature is lacking in such cases. If such an evidence is lacking in a case and the victim by chance, happens to be a member of Scheduled Castes Scheduled Tribes, merely on this ground the aforesaid provisions would not be attracted in addition to the provisions of the I.P.O., which has to be examined by a Court on the facts and circumstances of each particular case.
12. Learned counsel for the State could not point out that, in this case, where the incident took place in the year 2000, the allegations are that the said offence was committed for the reasons and on the ground that the victim belongs to a particular caste. In the above facts and circumstances of this particular case, the application filed u/S. 438, Cr. P.C. would be maintainable and the objection raised by the State cannot be sustained.
13. So far as the merits of the case are concerned, I have already observed that on many earlier occasions, the applicant was not named by the prosecutrix and even in the test identification parade, she could not identify him and ultimately the police itself had filed an application before the trial Court that they are not willing to file the charge-.sheet against this applicant, therefore, in the peculiar facts and circumstances of this case, I deem it proper to extend the benefit of S. 438, Cr. P.C. to this applicant.
14. His application filed u/S. 438, Cr. P.C. is allowed.
15. It is directed that in the event of arrest of this applicant, he shall be released on bail on his furnishing a personal bond in sum of Rs. 10,000/- with one surety in like amount to the satisfaction of the officer arresting him. This order of anticipatory bail shall remain in force for a period of 60 days from today, during which, the applicant may apply for regular bail before the concerned Court.
Petition allowed.
