Jatadhari Das v. State Of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

ABLAPL No.138 of 2023 Chandra Rout @ Priyajit Rout ....

Petitioner Mr. J.K. Khuntia, Advocate -versusState of Odisha ....

Opp. Party Mr. M.K. Mohanty, A.S.C.

CORAM:

JUSTICE CHITTARANJAN DASH Order No.

ORDER

10.01.2023 01.

1. Heard the learned counsels for the Petitioner and the State.

2. Perused the case record. By means of this application, the Petitioner seeks grant of bail U/s.438 Cr.P.C. in apprehension of arrest for their alleged involvement in the offences U/s. 363, I.P.C. read with Section 12 of the POCSO Act and Sections 3(1)(w)(i) & 3(2)(va) of the SC & ST (PoA) Act, 1989 (Amendment 2015).

3. In view of the bar under Sections 18 and 18-A of the SC & ST (PA) Act, the present application under Section 438, Cr.P.C. is not maintainable. The issue has been examined by the Apex Court in the matter of Prithviraj Chauhan v. Union of India and Others, reported in (2020) 1 OLR SC 419. In paragraph-10 of the said judgment, it has been held that the provision of Section 438, Cr.P.C. shall not apply to the case involving offence under SC & ST (PA) Act, 1989. While saying so the Apex Court has further observed that, if the complaint does not make out a prima facie case or applicability of the provision of the Act, the bar created by Sections 18 & 18-A of the Act shall not apply.

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4. Further, this Court in Pramod Kumar Ray and others v. State of Orissa, reported in (2017) 67 OCR 309, in the light of the principles laid down by the Apex Court, reiterated the same principles. Hence, this present application is disposed of with the following observation.

(i) In the event the Petitioner surrenders and moves for bail before the learned Addl. District & Sessions Judge-cumSpecial POCSO Court, Cuttack in Spl. G.R. Case No.173 of 2022 arising out of Niali P.S. Case No.490 of 2022 within three weeks from today, before the court in seisin over the matter the Petitioner shall serve copy of the bail application on the learned PP/Special PP as required by him for the purpose of notice to the victim or his/her counsel or dependent.

(ii) It is further directed that, on advance intimation, the Case Diary and other relevant materials be made available to the concerned court by the date of surrender.

5. The learned Court is further directed to consider the case of the Petitioner in accordance with law and shall dispose of the application on the very same day itself as far as possible, strictly on its own merit. The Court is also not precluded from granting any interim protection to the Petitioner in appropriate circumstances but not in a routine manner.

6. The ABLAPL is disposed of accordingly.

(Chittaranjan Dash) Judge S.K. Parida