Santosh Prasad Mishra vs State Of Madhya Pradesh

Appellant has filed this appeal under Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 being aggrieved by

the order dated 29.04.2019 passed by Special Judge, Rewa in connection with bail application No.207/2019.

Perused the impugned order.

Learned trial Court dismissed the application filed by the applicant under Section 438 of Cr.P.C. New amendment in SC/ST POA Act 1989, Section

18-A has been inserted. After section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, which

is as follows:-

18A. (1) For the purposes of this Act,:-

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an

offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any

Court."".

Learned counsel for the appellant submits that the Gwalior Bench of this Court held that the provisions of Section 438 is applicable and appeal filed

under Section 14-A(2) of the SC/ST POA Act is maintainable and produced copy of the order passed in the case of Mangaram and another vs. State

of M.P. vide order dated 05.12.2018 in Cr. Appeal No.8795/2018 and in the case of Maharam Kurmi vs. State of M.P. and another vide order dated

20.02.2019 in Cr. Appeal No.1420/2019.

Perused both the orders.

This appeal has been filed being aggrieved by the order dated 29.04.2019.

Perused the impugned order.

No doubt, Special Court constituted under the SC/ST (POA) Act, has considered the submissions of the appellant and found prima facie case against

the appellant and dismissed the application and has not considered the applicability of the application filed under Section 438 of Cr.P.C., and also not

considered the Section 18 and Section 18-A of the newly amended Act 2018.

Bare perusal of Section 18 of the Act 1989 and newly amended Section 18-A of the Act 2018, this Court is of the view that applicability of the Section

438 of Cr.P.C., is clearly barred if the case is registered under any of the offence punishable under any of the provision of SC/ST (POA) Act.

Before the trial Court, the appellant nowhere disputed the applicability of the Section 438 of the Cr.P.C. The date of incident is 05.08.2011. The

appellant was named in the FIR and during investigation, appellant could not be traced by the appellant hence, police submitted the charge-sheet in

absence of the appellant by declaring him absconding.

Perused the charge-sheet. Charge-sheet filed under Sections 363, 366 and 376 of IPC and under Section 3 (1-12) of the SC/ST (POA) Act,1989. The

case of the prosecution is that prosecutrix belongs to Scheduled Caste community and was at the time of incident 14 years old i.e. minor and appellant

knowing well that she belongs to abovementioned community, on the pretext of marriage, he took her with him and committed rape upon her.

This Court considered the application on two counts. In the first count; looking to the act of the appellant that he was absconded. Since the police filed

the charge-sheet, it cannot be denied the possibility that appellant may abscond during trial. Second count, which is pertains to applicability' of SC/ST

(POA) Act. After perusal of the Section 18 of the Act 1989 and 18-A of the newly amended Act 2018, both provisions clearly barred the applicability

of the provisions of Section 438 of the Cr.P.C.

If law is not permitting applicability of any provision of the Act, then the Court is not expected to permit that Section indirectly; Legal Maxim Dura

Lex Sed Lex which means ""it is harsh, but it is the law"". In this situation, meaning thereby that, if it is directly prohibited or barred in any law, the

appellant may suffer hardness, but it is a law that has to be complied with. Perused the case law submitted by the counsel for the appellant in the case

of Mangaram and another (supra) and in the case of Maharam Kurmi (supra), both are on different facts.

 Prima facie there is ingredient of the Section 3 (1) (12) of the SC/ST POA Act 1989. Therefore, this Court find that no illegality or irregularity or

any error in the order passed by the trial Court in connection with the application filed before the trial Court under Section 438 of Cr.P.C.

 In view of the aforementioned, the appeal stands dismissed as not maintainable.