th 25 January, 2024 SASHIKANTA MISHRA, J.

The petitioner is apprehending arrest in connection with Bisra P.S. Case No. 180 of 2023 corresponding to G.R. Case No. 139 of 2023 pending in the Court of learned Addl. District Judge-cum-Special Court under the POCSO Act , Sundargarh.

2. The prosecution case, in brief, as per the FIR lodged by one 'X' (name withheld) before Bisra Police Station Page 1 of 10 on 24.12.2023 is that she had been working as a maid in the house of one Sanjeet Mahato since 2 to 3 years. Said Sanjeet Mahato kept physical relationship with her on the assurance of marriage. When she became pregnant, Sanjeet asked her to abort the child. On such allegation, the FIR being lodged, Bisra P.S. Case No. 180 of 2023 was registered 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 (PA) Act. In course of investigation, it came to light that the victim 'X' was a minor girl at the time of the occurrence and belongs to the SC category, while the principal accused belongs to the general category. It was further revealed that after coming to know about the relationship, when the family members of the victim and the villagers prevailed upon Sanjeet Mahato to accept her as his wife, he took her to his house and resided with her but he conspired with the local pharmacist, namely, Sanat Kumar Mohanty and one Sanjay Kumar Panda, the Manager of the Nursing Home for termination of pregnancy of the victim. Thereafter, he forcibly took the victim to the Nursing Home, got her admitted with the help of Sanjay Kumar Panda, who took Page 2 of 10 Rs.50,000/- from Sanjeet Kumar Mahato for the purpose. The victim however gave birth to a premature baby girl. Sanjeet did not accept the new born child and left the clinic along with the victim falsely stating that the child was born dead. Subsequently, the accused Sanjeet handed over the new born baby to the present petitioner, who being the doctor had facilitated delivery of the child. The child was being looked after by him and on receiving information, the Chairman of Child Welfare Committee (CWC), Sundargarh rescued it from the possession of his wife.

3. Heard Mr. U.C. Jena, learned counsel for the petitioner and Mr. Sitikanta Mishra, learned Addl. Standing Counsel for the State.

4. A preliminary objection is raised by the State Counsel to the 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. He further submits that even otherwise, the petitioner has neither been named in the Page 3 of 10 FIR nor implicated in the case in any manner and therefore, his apprehension of being arrested is not justified.

5. On the point of maintainability, Mr. U.C. Jena, learned counsel for the petitioner, 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. Jena 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.

6. 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. Page 4 of 10

7. 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 Page 5 of 10 would not operate. In the case of Prathvi Raj Chauhan (supra) it was held as follows:

8. A coordinate Bench of this Court in the case of Dharani Pradhan (supra) held that merely because the case is registered under Section 3 of the SC & ST (PA) Act, there is no bar in entertaining an application under Section 438 of Cr.P.C. and that if the offence is, prima facie, not made out, the bar would not apply. Further, considering the facts of the case before it, the Coordinate Bench found a prima facie Page 6 of 10 case not made out and therefore, entertained the application under Section 438 of Cr.P.C.

9. The Madras High Court in the case of S. Ariharan (Supra) referring to the provision under Section 18-A of the Act and the decision of the Supreme Court in the case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra , (2018) 6 SCC 454 held that there is no absolute bar against grant of anticipatory bail in cases under SC & ST (PA) Act, if no prima facie case is made out.

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. Coming to the facts of the case, this Court finds that the name of the petitioner does not find place in the FIR nor in forwarding report submitted by the I.O. in respect of the co-accused persons. The only thing that has surfaced Page 7 of 10 during investigation is that the petitioner being the doctor had facilitated delivery of the child and when the co-accused abandoned it, he accepted the child and took it home. The child was also rescued by the Child Welfare Committee from his wife's custody. There is not a whisper of allegation against the petitioner by the informant-victim much less of commission of the offence under Section 3 of SC & ST (PA) Act.

12. This takes the Court to the next question as to if the apprehension of the petitioner of being arrested in connection with this case is justified. Undoubtedly, the informant victim has herself not made any allegation whatsoever against the petitioner but fact remains, he was involved in delivery of the child and also of taking the allegedly abandoned child to his home. The child was also rescued from his wife's custody. 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 is a Page 8 of 10 case of existence of possibility more than probability of the petitioner being arrested. Either way, it justifies his apprehension.

13. Even accepting that the petitioner is involved in the alleged occurrence, the offence under Section 3 of SC & ST (PA) Act is, prima facie, not made out. The allegation of commission of the offences are directed against the co- accused persons and the petitioner, if at all, may possibly be implicated with the aid of Section 120-B of IPC. It is not disputed that the petitioner is a doctor, which obviously places him in a respectable position in the society. From the facts unearthed during investigation so far, it appears that he had taken care of the abandoned child for some time. Therefore, taking into consideration all the above facts, this Court firstly, holds that the application under Section 438 of Cr.P.C is maintainable and secondly, the petitioner is entitled to the relief thereunder.

14. In the result, the application is allowed. It is directed that in the event of arrest, the petitioner shall be released by the arresting officer on such terms and Page 9 of 10 conditions as he may deem fit and proper to impose including the condition that he shall render necessary cooperation as and when required by the I.O.

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Sashikanta Mishra, Judge Orissa High Court, Cuttack.

The 25th January, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jan-2024 18:57:07 Page 10 of 10