This is the first criminal appeal filed on behalf of the appellant under Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for grant of anticipatory bail against order dated 23/01/2024 passed by Special Judge, SC & ST (Prevention of Atrocities) Act , Bhopal (M.P.) passed in B.A. No. 183/2024.

2 . Appellant is apprehending his arrest in connection with FIR No.686/2023, registered at Police Station - Bagsewaniya, District Bhopal (M.P.) Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 3/1/2024 12:09:20 PM 2 for the offences punishable under Sections 376(2)N, 377, 323 of IPC and under Section 3(2)(v) of Scheduled Castes a n d Scheduled Tribes (Prevention of Atrocities) Act, 1989 .

3. As per prosecution story, it is alleged that appellant committed rape upon the prosecutrix who is belonging the scheduled caste upon the pretext of marriage therefore, the aforesaid offence has been registered against him.

4. Learned counsel appearing for appellant submitted that no case under section 376 (2) N of IPC and under SC and ST (Prevention of Atrocities) Act is culled out against the appellant even if the entire prosecution story is accepted. FIR has been lodged after inordinate and unexplained delay. It is a case of consent. Prosecutrix is an adult woman. Appellant has been enlarged on bail by the trial court and he has not misused the bail and bail order has not been cancelled by the court therefore, he cannot be arrested. He further submits that prosecutrix has lodged written FIR and her statement under section 161 was recorded on 8/10/2023 and 164 statement on 9/10/2023. In all these documents she has not stated that she was subjected to rape due to her caste. It is also submitted that on 11/10/2023 his bail under section 439 was allowed by the trial court at that time also prosecution has not stated that in this case provision of Atrocities Act is also made out. He further submits that when appellant came from jail after enlarging on bail thereafter prosecutrix with an ulterior motive submitted her caste certificate to the police and police added section 3(2)(v) of Scheduled Castes a n d Scheduled Tribes (Prevention of Atrocities) Act, 1989 and now police wants to arrest him. 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 Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 3/1/2024 12:09:20 PM 3 anticipatory bail to the appellant.

6. 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.

7. On the point of maintainability, Mr. Jaggi, learned counsel for the appellant, 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. Coming to the facts of the case, in FIR and first statement u/s 161 and 164 recorded before the Magistrate at the time when the appellant was granted bail under section 439 by competent court till that time no offence under the Atrocities Act was registered and it is not a case when appellant has misused the liberty granted to him and subsequently when prosecutrix submitted her caste certificate, this offence under the Atrocities Act is added. Therefore, in my considered opinion, prima facie offence under 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out in the peculiar circumstances of the case.

12. Considering the aforesaid circumstances, criminal appeal filed by appellant is allowed. It is directed that in the event of arrest of appellant, he Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 3/1/2024 12:09:20 PM 6 shall be released o n bail on furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the Arresting officer (Investigating Officer) for his regular appearance before the Police during the investigation or before the Court during trial.

13. The appellant is directed to join the investigation immediately and co- operate with the investigating agency. He 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 navin Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 3/1/2024 12:09:20 PM