Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 5/30/2024 5:04:49 PM 2 This is the first criminal appeal filed on behalf of the appellants under Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for grant of anticipatory bail against order dated 12.04.2024 passed by Special Judge, SC & ST (Prevention of Atrocities) Act , Jabalpur (M.P.) passed in B.A. No. 969/2024.

2. Appellants are apprehending their arrest in connection with FIR No.179/2024, registered at Police Station - Gohalpur, District Jabalpur (M.P.) for the offences punishable under Sections 342 , 346(d) , 316 , 323 , 504 , 506 of IPC and under Section 3(2) (v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 .

3. As per prosecution story, earlier prosecutrix lodged the report alleging that accused Amit @ Angad Chaturvedi committed rape on the false pretext of marriage. Crime No.127/2022 was registered against Amit and his parents (who are father-in-law, mother-in-law and brothers-in-law in the present case). In the aforesaid crime number, statements of prosecutrix was recorded wherein she told that accused Amit has married her. On the basis of which, High Court of Allahabad by order dated 09.09.2022 passed in W.P. No.12756 of 2022 has quashed the FIR and consequential proceedings. Thereafter, prosecutrix, her husband and her husband's friend were living at Jabalpur. One day, when her husband went outside the home then in his absence, co-accused Sourabh Tiwari committed rape upon the prosecutrix. When her husband Amit came back home, prosecutrix narrated the incident to him. Thereafter, her husband and his friend told her that we both will commit rape and then they forcibly committed rape upon her many times. Thereafter, prosecutrix made a telephonic call to her father-in-law, mother-in-law and brothers-in-law, who live in village Signature Not Verified Ritholi, District Banda (U.P.) and complained them about the incident.

Thereafter, her father-in-law, mother-in-law and brothers-in-law abused her using caste remark on phone. Thereafter she lodged written complaint at Kalinzer, District Banda for the offence punishable under Sections 342 , 346(d) , 316 , 323 , 504 , 506 of IPC and 3(2)(v-a) of SC/ST Act, thereafter matter was transferred to police station Gohalpur, District Jabalpur.

4. It is submitted by learned counsel for the appellants that even before this incident, prosecutrix lodged one more report against her husband and her father-in-law and mother-in-law vide Crime No.127/2022 at police station Kalinzer, District Banda for the offence punishable u/S.452 , 376 , 504 , 506 of IPC and 3(2)(v) of SC/ST Act, which is almost similar to the present FIR, and the said FIR registered at Crime No.127/2022 has been quashed by High Court of Allahabad by order dated 09.09.2022 in W.P. No.12756 of 2022. Thereafter, prosecutrix lodged this second FIR against the present appellants. It is further submitted that present appellants do not reside at Jabalpur. They reside at village Ritholi, District Banda. There is no allegation against the present appellants regarding sexual assault. They have been falsely implicated in the present case. They have not abused her using caste remark on mobile phone. It is further submitted if conversation has been made on telephone then it will not be within public view and office under the SC/ST Act is not made out. Now, police want to arrest the appellants. It is further submitted that his case under extraordinary situation and in these matter application for anticipatory bail is maintainable.

5. Learned counsel for the State has opposed the prayer for grant of anticipatory bail to the appellant.

6. A preliminary objection is raised by the State Counsel to the Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 5/30/2024 5:04:49 PM 4 effect that one of the offences alleged being Section 3 of the SC & ST (PA) Act, the anticipatory bail application is not maintainable in view of the bar under Section 18 and 18-A of the said Act.

7. On the point of maintainability, learned counsel for the appellants, has relied upon the decisions of the Supreme Court in the case Ramesh Chandra Vaishya vs. State of Uttar Pradesh and Another , reported in 2023 SCC OnLine SC 668; Prathvi Raj Chauhan vs. Union of India and others , reported in (2020) 4 SCC 727; and the decision of this Court in the case of Dharani Pradhan v. State of Orissa , reported in 2014(II) OLR 720. Mr. Jaggi has also relied upon a decision of the Madras High Court in the case of S. Ariharan and Ors. vs. The Inspector of Police, Thirumangalam, reported in 2020 CriLJ1580, Dr. Satyendra Kumar Verma Vs. State of Odisha and another, ABLAPL No. 50/2024 and Mahesh Vs. State of M.P. passed in Cr.A. No. 2391/2022.

8. As regards the maintainability of the application under Section 438 of Cr.P.C., there is no dispute that Section 18 & 18-A of SC & ST (PA) Act place bar for entertaining application under Section 438 of Cr.P.C. The provisions are quoted hereinbelow for immediate reference.

9. Thus, 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. However, the provision has been interpreted by the Supreme Court to imply that the bar operates only when the offence under Section 3 of the SC & ST (PA) Act is, prima facie, made out but where opposite is the situation i.e., the offence under SC & ST (PA) Act is not, prima facie, made out, the bar in the provision under Section 18 and 18-A of the SC & ST (PA) Act would not operate. In the case of Prathvi Raj Chauhan (supra) it was held as follows:

10. Having regard to the principles laid down in the case laws discussed hereinbefore this Court is also of the same view that 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.

11. In the present case, at the time of incident, present appellants were not residing at Jabalpur, they were residing at village Ritholi, District Banda (U.P.). As per the prosecution case, conversation with the prosecutrix has been made on telephone, therefore, in the facts and circumstance of the present case and in the light of G.P. Hemakoti Reddy, Ananthapur Dist. Vs. P.P. HYD, offence under Section 3(2) (v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is prima facie not made out against the present appellants.

12. Considering the aforesaid circumstances, criminal appeal filed by appellants is allowed. It is directed that in the event of arrest of appellants, they shall be released o n bail on furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each with one surety in the like amount to the satisfaction of the Arresting officer (Investigating Officer) for their regular appearance before the Police during the investigation or before the Court during trial.

13. The appellants are directed to join the investigation immediately and co-operate with the investigating agency. They will further abide by the conditions enumerated in sub-section (2) of Section 438 of the Cr.P.C.

14. It is made clear that any opinion expressed by this Court in aforesaid order, will not affect the merits of the case.

15. Certified copy as per rules.

(PRAMOD KUMAR AGRAWAL) JUDGE Sateesh Signature Not Verified Signed by: SATEESH KUMAR SEN Signing time: 5/30/2024 5:04:49 PM