Basanti Nayak And Another vs State Of Odisha .... Opp. Party on 11 April, 2023

[Cites 7, Cited by 1]

Orissa High Court

Basanti Nayak And Another vs State Of Odisha .... Opp. Party on 11 April, 2023

Bench: Chittaranjan Dash

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                             ABLAPL No.3234 of 2023

           Basanti Nayak and another              ....         Petitioners
                                                  Ms. A. Dash, Advocate

                                       -versus-

           State of Odisha                        ....        Opp. Party
                                                  Mr.M.K. Mohanty, ASC

                    CORAM:
                    JUSTICE CHITTARANJAN DASH

01.03                              ORDER
                                  11.04.2023

01. 1. Heard learned counsel for the Petitioners and the State.

2. This is an application for bail U/s.438 Cr.P.C. filed by the Petitioners in anticipation of arrest for their alleged involvement in the offences U/s.498-A/323/34 IPC read with Section 4 of the D.P. Act and Section 3(1)(r)(s)/3(2)(va) of the SC & ST (POA) Act.

3. Keeping in view of the bar under Sections 18 and 18-A of the SC & ST (PA) Act, the present application under Section 438, Cr.P.C. is not maintainable. The issue has been examined by the Apex Court in the matter of Prithvi Raj Chauhan v. Union of India and Others, reported in (2020) 1 OLR SC 419. In paragraph-10 of the said judgment, it has been held that the provision of Section 438, Cr.P.C. shall not apply to the case involving offence under SC & ST (PA) Act, 1989. While saying so the Apex Court has further observed that, if the complaint does not make out a prima facie case // 2 // or applicability of the provision of the Act, the bar created by Sections 18 & 18-A of the Act shall not apply.

4. Further, this Court in Pramod Kumar Ray and others v. State of Orissa, reported in (2017) 67 OCR 309, in the light of the principles laid down by the Apex Court, reiterated the same principles. Hence, the present application is disposed of with the following observation.

(i) In the event the Petitioners surrender before the learned Sessions Judge-cum-Special Judge, Jajpur in Kuakhia P.S. Case No.396 of 2022 corresponding to C.T. Special Case No.184 of 2022 within three weeks from today, before the court in seisin over the matter the Petitioners shall serve copy of the bail application on the learned PP/Special PP as required by him for the purpose of notice to the victim or his/her counsel or dependent.

(ii) It is further directed that, on advance intimation, the Case Diary and other relevant materials be made available to the concerned court by the date of surrender.

(iii) The learned Court is further directed to consider the case of the Petitioners in accordance with law and shall dispose of the application on the very same day itself, strictly on its own merit.

(iv) In appropriate case, the Court is not precluded from granting interim protection, keeping in view the facts and circumstances of the case, upon his satisfaction but not in a routine manner.

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(v) However it is made clear that the observations/directions made herein shall not be considered in affirmative and the court shall apply its own wisdom in allowing or rejecting the application keeping in view the gravity of offence and severity of punishment.

5. The ABLAPL is disposed of accordingly.

(Chittaranjan Dash) Judge KC Bisoi Page 3 of 3

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