Aniket Shrivastava v. State Of Chhattisgarh Through - Police Station Kotwali, District

Judgment

1. The instant Criminal Appeal is preferred under Section 14-A(2) of the VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN 18:54:09 +0530 Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short “SC/ST Act”), against the order dated 28.02.2025, 2 passed by learned Special Judge (Atrocities Act), Rajnandgaon, in Bail Petition No. 108 of 2025, whereby the application filed by the appellant for grant of anticipatory bail in connection with Crime No. 82 of 2025, registered at Police Station Kotwali Rajnandgaon, District Rajnandgaon (C.G.), for the offence under Sections 498-A, 376 and 376-A of IPC and Section 3(2)(va) and 3(1)(b)(ii) of the SC/ST Act, has been rejected.

The brief facts of the case are that on 19.05.2023, the victim lodged an online complaint to National Commission for Women, New Delhi against the appellant that he sexually and mentally exploited her and the police has not taken any action against him. In turn, when the complaint was forwarded to the police station Kotwali, Rajnandgaon, the FIR of Crime No. 82 of 2025 has been registered on 19.02.2025 against the appellant for the offence under Sections 85, 86(a) of the Bharatiya Nyaya Sanhita, 2023. It is alleged that the appellant had sexually exploited her since last 07 years and twice he got aborted her pregnancy. On 10.06.2022, despite performing marriage at Arya Samaj, he has not kept her with him and started assaulting her. She made police complaint, but no action has been taken on her complaint and ultimately, she lodged an online complaint to the National Commission for Women, New Delhi. The statement of the victim was recorded on 19.02.2025, in which she disclosed the sexual relation with the appellant since 2016, marriage performed on

10.06.2022, harassment by the appellant with her and also initiated a Court’s proceeding in the month of November, 2023 and thus the offence under Sections 498-A, 376, 376-B of IPC and Sections 3(2) 3 (va) and 3(1)(b)(ii) of SC/ST Act have been added, in which the appellant is 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 32 years, and was having love affair with the appellant since 2016. They performed marriage on 10.06.2022 at Arya Samaj Mandir at Raipur. After the marriage, the behaviour of the victim was not good with the appellant and his family members and she wanted to reside as per her own whims and not given any respect to his family members. The matrimonial tie started deteriorating and culminated into various police complaints. On 10.12.2022, she made a complaint to Mahila Thana, Rajnandgaon, in which counseling proceeding was started, but on 10.01.2023, she gave in writing to Mahila Thana, Rajnandgaon that, despite performing love marriage on 10.06.2022, he has not kept her with him and she wanted to reside with him as his wife and she does not want any counseling and wanted to get the case decided by the Court. She made another complaint to Superintendent of Police, Rajnandgaon against the present appellant as well as his family members for registration of the case under the dowry harassment and domestic violence, in which the matter was being inquired by the Basantpur police station, Rajnandgaon and it was reported that, earlier she made a complaint to Mahila Thana, Rajnandgaon, in which a report under Section 155 of CRPC was already given to the victim on 10.01.2023 and by exaggerating her complaint, she again made another complaint and there is no substance found on the complaint of the victim. She 4 would also submit that the appellant has filed an application on

28.10.2023 under Sections 12 and 13 of the Hindu Marriage Act, 1955 before the learned Family Court, Rajnandgaon, which is pending for its consideration, in which the victim has made her appearance and contesting the same, yet she has made her complaint to the National Commission for Women, New Delhi and in turn, the FIR has been registered against him. She would further submit that, the victim is a major girl aged about 32 years and was in love affair with the appellant since 2016. It is only a matrimonial dispute, which given colour in the criminality only to create pressure upon the appellant. Initially, the FIR has been registered for the offence under Sections 85 and 86(a) of the Bharatiya Nyaya Sanhita, 2023 and subsequently, the offence under Sections 498-A, 376, 376- B of IPC and Sections 3(2)(va) and 3(1)(b)(ii) of SC/ST Act are added. In the complaint, she herself admitted that she was in relation with the appellant since 2016, but the complaint has been lodged on

19.05.2023 to National Commission for Women, New Delhi and thereafter the FIR has been registered on 19.02.2025. She would further submit that the appellant has performed marriage with the victim on 10.06.2022 and due to the adamant altitude of the victim, the dispute arose between the parties and ultimately, the appellant has filed an application under Sections 12 and 13 of the Hindu Marriage Act, 1955 before the learned Family Court, Rajnandgaon and to came out from the matrimonial proceeding and create pressure upon the appellant, she lodged the report. There is no allegation in the FIR that the appellant committed rape upon her 5 knowingly that she belongs to the scheduled tribe 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 appellant to take benefit of anticipatory bail under the provisions of Section 483 of the Bhartiya Nagarik Suraksha Sanhita. There should 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 Sections 85 and 86(a) of the Bharatiya Nyaya Sanhita, 2023 and subsequently, the offence under Sections 498-A, 376, 376- B of IPC and Sections 3(2)(va) and 3(1)(b)(ii) of SC/ST Act are added. She read over the contents of the FIR in support of her contention. She would further submit that the victim was sexually exploited by the appellant and her consent was obtained by alluring her that he would marry her and kept her with him. 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. 6

7. In the present appeal, the notice was issued to the victim vide order dated 17.03.2025 and in pursuance thereof, she appeared before this Court through virtual mode from DLSA, Rajnandgaon on

02.04.2025 and raised objection in granting anticipatory bail to the appellant. 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 7 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.]”

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 8 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:- “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 9 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.”

10. Section 3(2)(va) 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)(va) 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,— (va) commits any offence specified in the Schedule, 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 such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to 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:- 10 “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 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 11 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.”

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 aforementioned mens rea selling, buying or receiving from another person or otherwise 12 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."

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 13 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. Reverting to the facts of the present case, from the perusal of the FIR as well as the statements of the victim and witnesses, it appears that the victim was in relation with the appellant since 2016, when she was studying at Rajnandgaon. In the year 2019 and 2021, when she conceived pregnancy, she got aborted her pregnancy and on

10.06.2022, they performed marriage at Arya Samaj Mandir, Raipur and he left her alone to her house. Despite her efforts, he has not taken her with him. On 11.12.2022, she made an application to Mahila Thana, Rajnandgaon and in the counseling proceeding, he refused to keep her with him and then she gave her written complaint for taking action against him. When no action was taken, she again made a complaint on 20.02.2023 to Superintendent of Police, Rajnandgaon. From perusal of the document (Annexure A-4), it also appears that on 10.01.2023, an intimation under Section 155 of CRPC was given to the victim to approach before the competent Court to redress her grievances, as the dispute between them is a matrimonial dispute. On the further complaint made by her on

20.02.2023 to the Superintendent of Police, Rajnandgaon another inquiry was conducted by the Basantpur police station, Rajnandgaon, 14 who also not found any prima facie evidence with respect to commission of the alleged offence. From the document (Annexure A- 7), it also reflects that on 28.10.2023, the applicant has filed an application under Sections 12 and 13 of the Hindu Marriage Act, 1955 before the learned Family Court, Rajnandgaon, in which the victim appeared in the proceeding and contesting her case. It is not the case here that the appellant developed physical relation with the victim on the ground that she belongs to scheduled tribe community or knowingly that she belongs to the said particular community. It is also not the case here that the appellant refused to marry with her. Admittedly, they performed marriage at Arya Samaj Mandir, Raipur, but it is a case where the appellant is not obeying his matrimonial obligation.

13. In order to bring home the charge of the offence under Section 3(2) (va) 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)(va) 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)(va) 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)(va) 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 15 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 appellant.

14. In the present case, the contents of the FIR mention that the appellant kept her with him since 07 years and twice he got aborted her, on 10.06.2022, he performed marriage with her at Arya Samaj Mandir, Raipur, but has not kept her with him and started assaulting her. When she had gone to the house of the appellant, his father threatened her and thrown her out from her house. The first incident of alleged rape is said to have been committed in the year 2016 and thereafter, they continued in physical relation. Had the appellant committed the offence on the ground that the victim belongs to scheduled tribe community, he would have not given any assurance of marriage to her or have not performed marriage. She being a major girl, who would know about the consequence of physical relation with a person. Further, in the preliminary enquiry on the earlier complaint made by the appellant, no offence prima facie was found to be committed with her. 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 28.02.2025, passed by learned Special Judge 16 (Atrocities Act), Rajnandgaon, in Bail Petition No. 108 of 2025 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