Gunasagar Yadav v. State Of Chhattisgarh Through The Station House Officer, Police Station-Patthalgaon

: Mr. Amit Verma, Panel Lawyer and Mr. Jitendra Shrivastava, Govt. Advocate Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board

12.06.2025

#1. Pursuant to the order dated 20.05.2025 and 10.06.2025, through video conferencing (DLSA), Patthalgaon, District- Jashpur, the complainant appeared in person before this Court on today i.e. 12.06.2025 and raised objection in granting bail to the appellant. 2

#2. The instant appeal has been filed in connection with Crime No. 54 of 2025 registered at Police Station Patthalgaon, District- Jashpur (C.G.) for the offence under Sections 64(2)(m) of BNS and Section 3(ii)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, ‘the SC/ST Act’) whereby the appeal filed by the appellant vide impugned order dated 29.04.2025, has been rejected by the learned Special Judge (SC/ST Act), Jashpur, District- Jashpur (C.G.).

#3. The brief facts of the case are that the complainant/victim aged about 38 years working as Head Master in Education Department has lodged the report on 10.03.2025, at Police Station Patthalgaon, District- Jashpur against the present appellant with the allegation that she is residing separately from her husband since last 10 years with her children’s and on 02.04.2023, she went to purchase the Scorpio vehicle with the appellant from Ambikapur Showroom and after purchase of the vehicle they returned back to her house where the appellant has developed physical relation with her and since

02.04.2023 to 01.03.2025 on many occasions, physical relations were developed. The appellant also threatened her to viral her photographs, therefore, the said report has been lodged. On the report made by the complainant, the FIR has been registered in which the appellant is apprehending his arrest.

#4. Mr. Sunil Sahu, learned counsel appearing for the appellant would submit that the appellant has been falsely implicated in the offence in question. He would also submit that the complainant is 38 years of age and an educated lady working as Head Master in Education Department and there was physical relation between them for more than two years and the appellant who is working as driver of the complainant resided with her since 3 last two years in her house as a servant. In the month of March 2025, when the marriage of the appellant was fixed with another girl then the said complaint has been lodged. He would further submit that the learned Special Judge has not considered the case of the appellant on merits and rejected the same by mentioning that the offence under Section 3(2)(v) of SC/ST act is registered therefore, the application filed under Section 482 of BNSS is not maintainable. He would lastly submit that the appellant is innocent and falsely implicated in the offence in question and will cooperate with the investigations as well as the trial, therefore, he may be enlarged on anticipatory bail.

#5. On the other hand, learned counsel for the State opposes and have submitted that on the report made by the complainant, the FIR has been registered. From the FIR, it reflects that the complainant was raped by the appellant on many occasions and on being threatening of viral the photograph she made complainant and as she belongs to Schedule Caste therefore, the offence under the SC/ST Act has been registered and in view of bar under Section 18 of the SC/ST Act his anticipatory bail application is not maintainable and the same is liable to be rejected.

#6. I have heard learned counsel for the parties and perused the case diary with utmost circumspection.

#7. 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. 4 [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.]”

#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 judgment, 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 5 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. The Hon’ble Supreme Court in the matter of Prithvi Raj Chouhan Vs. Union of India and others, reported in (2020) 4 SCC 727 has observed in paras 11, 32 and 33 as under:- “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 lwhen this Court examined the FIR lodged by the 6 complainant it reveals that it is alleged by the complainant that at the time of filling of nomination form for the post of Upsaw. 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. In the present case, the complainant aged about 38 years is an educated lady and working in the Education Department. The appellant was residing at the house of the complainant as servant and they were made consensual physical relation and when the marriage of the appellant was fixed with another girl she(complainant) made report against him. Therefore, considering the nature of allegation, the manner in which the alleged incident is said to have been occurred and also from perusal of the FIR, prima facie there is no allegation or averment is made out regarding her caste which can constitute the ingredients of special act. Therefore, the ratio laid down by the Hon’ble Supreme Court in the aforesaid judgments, present case is of the exceptional nature and within the four corners of the category of cases where benefit of anticipatory bail can be granted despite bar under Section 18 of the SC/ST Act, I am inclined to allow the appeal and extend benefit of anticipatory bail to the appellant.

#11. Consequently, appeal filed by the appellant- Gunasagar Yadav is allowed and the impugned order dated 29.04.2025 passed in Bail Petition No. 76 of 2025, Crim No. 54 of 2025 passed by the learned Special Judge (SC/ST Act), Jashpur, District- Jashpur (C.G.) 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 on executing a personal bond and one surety 7 in the like sum to the satisfaction of the arresting OfÏcer. The appellant shall also abide by the following conditions :- (i) that he shall make himself available for interrogation before the investigating officer as and when required; (ii) that he 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 he shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and (iv) that he shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial.

#12. 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/- (Ramesh Sinha) Chief Justice Amita AMITA DUBEY AMITA DUBEY