Narsingh Charan Moharana vs State of Orissa

A.K. Parichha, J.—Heard Mr.S.S. Ray, learned Counsel for the petitioner and learned Addl. Govt. Advocate. The petitioner, who has been arrayed as an accused in G.R. Case No. 2218 of 2004 of the Court of the learned S.D.J.M., Bhubaneswar u/s 506, Indian Penal Code and 3 of the S.C. & S.T. (P.A.) Act has prayed for anticipatory bail u/s 438,Criminal Procedure Code

Learned Counsel for the petitioner submits that no prima facie case is made out for any of the offences alleged particularly for the offence u/s 3 of the S.C. & S.T. (P.A.) Act and so the petitioner should be allowed anticipatory bail. He submits that in the afore-mentioned situation the bar provided u/s 18 of the S.C. & S.T. (P.A.) Act will not apply.

Learned Addl. Govt. Advocate, on the other hand submits that accusation having been made for an offence under S.C. & S.T. (P.A.) Act, the bar u/s 18 of the Act squarely applied and no anticipatory bail can be granted.

The copy of the F.I.R. indicates that some unknown person extended threat and abused the M.L.A.-informant over mobile telephone and the mobile telephone from which the call had been made was the mobile telephone of the petitioner. Section 18 of the aforesaid Act reads thus:

Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

It is submitted by the learned Addl. Govt. Advocate that accusation having been made u/s 3(x) of the S.C. & S.T. (P.A.) Act, bar will apply. Section 3(x) of the Act reads thus:

Whoever, not being a member of a Scheduled Caste or Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view

The Sub-section, therefore says that the insult or intimidation etc. must be within public view. In the present case, there is no allegation that threat or intimidation was made within the public view. So the submission of the learned Counsel for the petitioner is tenable that at the moment prima facie case for the alleged offence u/s 3(1)(x) of the S.C. & S.T. (P.A.) Act has not been made out. In that situation, the bar provided u/s 18 of the Act will not apply and the petition u/s 438, Code of Criminal Procedure can be entertained.

The allegation in the F.I.R. is that there was threat and abuse in the mobile phone call given from Mobile No. 94371-13014. The petitioner has produced a copy of the Station Diary Entry of Paradip Police Station showing that his mobile was lost on 18.7.2004 and he had made station diary entry in that regard at 3 P.M. of that day.

Considering all these factors and the nature and gravity of the offence alleged, the anticipatory bail can be granted to the petitioner.

Accordingly, I direct that on the petitioner surrendering before the learned S.D.J.M., Bhubaneswar and making prayer for bail, the learned Magistrate shall enlarge him on bail of Rs. 5,000/- (Rupees five thousand) with one local solvent surety for the like amount to his satisfaction on such terms and conditions as he thinks fit and proper.

The BLAPL is disposed of.

Urgent C. copy of the order be granted on proper application.