Nafr High Court
Case Details
1 2025:CGHC:17333 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 92 of 2025 Divyesh Jethwa Urf Madan Jethwa S/o Lt. Pankaj Jethwa Aged About 24 Years R/o Pali, Police Station Pali, District Korba Chhattisgarh. versus ... Appellant State Of Chhattisgarh Through Police Station Pali District Korba Chhattisgarh. (Cause title taken from Case Information System) ... Respondent For Appellant For Respondent/State : : Mr. Anshul Tiwari, Advocate Mr. Karan Kumar Baharani, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 15/04/2025 1. The instant Criminal Appeal is preferred under Section 14-A(2) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short “SC/ST Act”), against the order dated 16-12-2024 passed by learned Special Judge {SC/ST (P.A.) Act}, Korba, in Bail Application No. 754 of 2024, whereby the application filed by the appellant for grant of anticipatory bail in connection with Crime No. VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.17 16:34:20 +0530 2 322/2024, registered at Police Station Pali, District Korba (C.G.) for the offence under Sections 376(2)(n), 294, 323 of IPC and Section 3(2)(v) of the SC/ST Act, has been rejected. 2.
Facts
The brief facts of the case are that on 20-11-2024, the victim has lodged a written report to the police that she introduced with the appellant through mobile phone on 14-02-2024 and thereafter the appellant proposed her through Whats-app that he will marry her and called her in his house. On 20-03-2024, when she had gone to his house, he made physical relation with her on the pretext of marriage and get her introduced with his mother and sister. When she requested him for marriage, he refused her yet he made physical relation on 07-10-2024. She lodged the report against the appellant that he committed rape upon her on the pretext of marriage. The FIR has been registered on 20-11-2024 for the offences under Section 376(2)(n), 294, 323 of IPC. During the investigation, the Social Status Certificate of the victim has been seized and the offence of Section 3(2)(v) of SC/ST Act is added and investigation is going on, in which the appellant apprehending his arrest. 3. Learned counsel for the appellant would submit that the appellant has been falsely implicated in the offence. The victim is a major girl aged about 23 years, and was having love affair with the appellant. In order to extort money from him, she developed physical relation with the appellant and pressurized him to marry with her and when the appellant refused for the same, report has been lodged. Initially the offence has been registered under Section 376(2)(n), 294 and 323 of IPC but subsequently, the offence of Section 3(2)(v) of the SC/ST Act 3 is added. In the written complaint itself it is alleged that their relation was continued since 20-03-2024 but the report has been lodged on 20-11-2024, further despite refusal by the appellant, she made physical relation with him on 07-10-2024 which clearly shows that she was the consenting party in making physical relation with the appellant. He would also submit that the last incident of rape is alleged to have been made on 07-10-2024 whereas the report has been lodged on 20-11-2024 which is after about a month and there is no explanation of the delay in lodging the report. It is also submitted by him that he borrowed Rs. 20,000/- from the victim in the month of June-2024 for the treatment of his mother and repaid Rs. 15,000/- to her. Rs. 15,000/- is the outstanding amount which he has to repay to her but she created pressure upon him to refund the same, threatened him and tried to obtain his signature over a blank stamp paper which he refused and at that time some quarrel took place between them. The appellant has made a written complaint to the police on which the intimation under Section 155 of Cr.P.C. was given to him. Presently, the dispute between the appellant and the victim is settled and they wanted to marry with each other and the victim has executed an affidavit to that effect also on 27-10-2024. He would also submit that there is no allegation in the FIR that the appellant committed rape upon her knowingly that she belongs to the Scheduled Caste community or left her on that ground alone. Since, the offence has not been committed knowingly that she belongs to Scheduled Caste community, the bar under Section 18 of the SC/ST Act is not applicable in the present case and merely mentioning the offence under the SC/ST Act, it would not be sufficient to dislodge the 4 appellant to take benefit of anticipatory bail under the provisions of Section 483 of the Bhartiya Nagarik Suraksha Sanhita. There should
Legal Reasoning
be a prima facie material to show that the appellant has committed the offence as mentioned under the SC/ST Act. Therefore, the appellant may be extended the benefit of anticipatory bail. 4. Per contra, the learned counsel for the respondent/state would oppose the submission made by the learned counsel for the appellant and has submitted that the FIR has been registered for the offence under Section 376(2)(n), 294, 323 of IPC, however, during the investigation it reveals that the victim belongs to SC community and her Social Status Certificate has been seized and offence of Section 3(2)(v) of SC/ST Act is added. He has read over the contents of the FIR in support of his contention. He would further submit that the victim was sexually exploited by the appellant on the pretext of marriage and her consent was obtained by alluring her that he would marry her and ultimately refused. In view of the provisions of Section 18 of the SC/ST Act, the anticipatory bail application is not maintainable and even otherwise, in view of the allegations made by the victim against the appellant, he is not entitled to anticipatory bail and his application is rightly rejected by the learned trial court and the appeal is also liable to be dismissed. 5. In the present appeal, the notice was issued to the victim vide order dated 16-01-2025 and in pursuance thereof, she appeared in person before the court on 06-03-2025 and submitted that she is having no objection in granting anticipatory bail to the appellant. 5 6. 7. I have heard learned counsel for the parties and perused the material annexed with the appeal as well as the case diary. First, it is to be considered the bar of the anticipatory bail application as provided under Section 18 of the SC/ST Act. Section 18 of the SC/ST Act defines that :- “18. Section 438 of the Code not to apply to persons committing an offence under the Act.—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. [18A. No enquiry or approval required.— (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.]” 6 8. In the matter of “Shajan Skaria v. State of Kerala and Another”, 2024 SCC Online SC 2249, the Hon’ble Apex Court has held that Section 18 of the SC/ST Act does not create an absolute bar on the anticipatory bail application or examining whether the prima facie case under the SC/ST Act is made out or not. The Courts are entrusted with a duty to verify the averments in the complaint and to find out whether an offence under the SC/ST Act is prima facie made out or not. In para 41 of its judgement, the Hon’ble Apex Court has held that:- “41. It is clear from the aforesaid discussion that Section 18 of the Act, 1989 does not impose an absolute fetter on the power of the courts to examine whether a prima facie case attracting the provisions of the Act, 1989 is made out or not. As discussed, Section 18 stipulates that in any case which involves the arrest of any person on the accusation of having committed an offence under the Act, 1989, the benefit of anticipatory bail under Section 438 of CrPC would not be available to the accused. We have deliberated on the significance of the expression “arrest of any person” appearing in the text of Section 18 of the Act, 1989 and are of the view that Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC.” 9. In the matter of “Prithvi Raj Chouhan v. Union of India and Others”, 2020 (4) SCC 727, the Hon’ble Supreme Court has held in para 11, 32 and 33 that:- 7 “11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Section 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions. 32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the Court has the inherent power to direct a pre-arrest bail. 33. I would only add a caveat with the observation and emphasis that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests; i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” 8 10. Section 3(2)(v) of the SC/ST Act provides that if the offence under the IPC is to be committed “knowing” that such person is a member of the SC/ST ….…. Section 3(2)(v) of the SC/St Act is reproduced hereinbelow:- 3. Punishments for offences atrocities.— 2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine;” 11. The word “knowingly” in the provision would convey the “mens rea” and “culpable mental state” to commit an offence. In the matter of “Bharath Booshan Aggarwal v. State of Kerala”, 2022 (19) SCC 401, in para 27, 28 and 29, the Hon’ble Supreme Court has held that:- “27. This is a significant aspect, because unlike some statutes, the Act in the present case, does not create a presumption about a culpable mental state of the alleged offender. Instead, the nature of the presumption is that it relates to the ownership of the forest produce. This important aspect has a bearing on the matter. Whether an offence can be said to have 9 been committed without the necessary mens rea has often arisen for consideration. Generally, there is a presumption that mens rea is an essential ingredient in every offence. Yet, that presumption can be displaced either by the phraseology of the law creating the offence or by the subject matter with which it deals; both must be considered. This court, in Nathulal v. State of Madhya Pradesh, in that context, observed as follows: “4. ...Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof.” 10 28. Umashanker v. State of Chhattisgarh 20 underlined the existence of mens rea, as follows: (SCC pp. 643- 44. paras 7-8) "7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. But these provisions are not meant to punish unwary possessors or users. 8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is 'knowing or having reason to believe the currency notes or banknotes are forged or counterfeit'. Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489- B Penal Code, 1860. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea. noted above." 11 29. In Raghunath Singh v. State of M.P. this Court held that use of the word "know" would mean that mens rea of the offender has to be established: "Section 368 speaks of "knowledge" when it says, "Whoever knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person ." The Penal Code, 1860 uses two different expressions in its different parts. Sometimes the gist of the offence is dependant on knowledge and the words "knowing" or "knowingly" are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. Sometimes (see for example Sections 212, 411, etc.), the expression "has reason to believe" is used. The words "knowing" or "knowingly" are obviously more forceful than the words "has reason to believe" because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly. It is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed. When these words are used, something more than suspicion or reason for belief is required. Before an offence under Section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted." 12 12. Reverting to the facts of the present case, from the perusal of the FIR as well as the statements of the victim and witnesses, there is no whisper of allegation that the appellant has committed the offence knowingly that the victim belongs to Schedule Caste community or that he refused for the marriage for the reason that she belongs to that particular caste. In order to bring home the charge of the offence under Section 3(2)(v) of the SC/ST Act, the prosecution is required to show that the offence was committed knowingly, that the person was a member of the reserved category and where there is no such material, the offence under Section 3(2)(v) of the SC/ST Act could not be said to be prima facie made out. In view of the above, this court finds that merely because the offence under Section 3(2)(v) of the SC/St Act is registered against the appellant, the learned trial court rejected the application of the appellant for grant of anticipatory bail holding it to be not maintainable in view of the provision contained under Section 18 of the SC/ST Act, without taking into consideration the provisions of Section 3(2)(v) of the SC/ST Act as well as the law laid down by the Hon’ble Supreme Court in the field, and if the material on record leads to satisfaction that the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created under Section 18 of the SC/ST Act shall not apply, and in appropriate cases of exceptional nature, the benefit of anticipatory bail could be admitted to the applicant. 13. In the present case, the contents of the FIR mention that the appellant has developed physical relations with the victim on the 13 pretext of marriage. The first incident of alleged rape is said to have been committed on 20-03-2024, and at that time, the appellant showed his intimacy and proposed to her. Subsequently, the appellant refused to marry her, but he again made physical relation on 07-10-2024 and thereafter, a written report was lodged on 20-11- 2024. Had the appellant committed the offence on the ground that the victim belongs to the Schedule Caste community, he would not have given any assurance of marriage to her. She being a major girl would know about the consequence of physical relation with a person. The FIR has been registered for the offence of Section 376(2)(n), 294 and 323 of IPC. 14. From the perusal of the complaint made by the appellant to the police on 29-10-2024 (Annexure A-3) and the intimation under Section 155 of Cr.P.C. (Annexure A-4) would show that there was some money dispute between the appellant and the victim which also makes the appellant entitled for protection from his arrest. Further, the victim executed an affidavit on 27-10-2024 (Annexure A-1) that they wanted to marry each other, and now she has no grievance with the appellant and also that she has not raised any objection in granting the benefit of anticipatory bail to the appellant when she appeared in person before this court on 06-03-2025. All the facts and circumstances of the case and in view of the aforesaid law laid down by the Hon’ble Supreme Court, the case of the appellant would fall within the exceptional cases. 15. Consequently, the appeal filed by the appellant is allowed and the impugned order dated 16-12-2024 passed by learned Special Judge 14 {SC/ST (P.A. Act)}, Korba, in Bail Application No. 754/2024 is set- aside. It is directed that in the event of arrest of the appellant in connection with the aforesaid offence, he shall be released on bail by the officer arresting him on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the concerned arresting officer. The appellant shall abide by the following conditions:- (i) that the appellant shall make himself available for interrogation before the investigating officer as and when required; (ii) that the appellant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer; (iii) that the appellant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and (iv) that the appellant shall appear before the trial Court on each and every date given to them by the said Court till disposal of the trial. 16. It is made clear that any observation made in this order is restricted only for consideration of the present appeal. The learned trial court shall decide the case on its own merits without being influenced by any observation made in this order. Sd/- (Ravindra Kumar Agrawal) Judge ved