Court No. - 34
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4108 of 2021 Applicant :- Krishna Yadav And 3 Others Opposite Party :- State of U.P.
Counsel for Applicant :- Devbratt Yadav,Ram Pratap Yadav Counsel for Opposite Party :- G.A.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the applicants, Sri Vikas Sahai the learned A.G.A. for the State and perused the record.
The instant application has been moved seeking anticipatory bail in light of the apprehension of the arrest of the applicants in Case Crime No. 218 of 2020, under Sections 323, 504, 506 IPC and Section 3(1)(d) Scheduled Caste and Schedules Tribes (Prevention of Atrocities) Act 1989, Police Station Gadwar, District Ballia.
A preliminary objection is taken to the maintainability of the petition on the ground that since Section 3 of the 1989 Act has been invoked, a petition under Section 438 Cr.P.C. would not lie in light of the bar imposed by Section 18 of that Act.
While it is true that Section 18 of the 1989 Act expressly bars a petition for anticipatory bail, undisputedly that remedy can be availed of within a limited window as carved out by the decisions of the Supreme Court rendered on the subject provided it is established that the allegations as levelled do not even prima facie evidence the commission of an offence created by the 1989 Act. The position in law in this respect stands duly settled in view of the decision of the Supreme Court in Prathvi Raj Chauhan Vs. Union of India and others [(2020) 4 SCC 727].
In petitions like the present it is thus incumbent for the applicant to firstly establish from the allegations levelled in the FIR that the provisions of the 1989 Act are not established even on a prima facie pedestal.
Learned counsel for the applicant submits that the allegations as levelled do not establish the commission of the offence contemplated by Section 3(1)(d) of the 1989 Act. It was further contended that since the chargesheet has been filed with respect to that provision and clause (d) alone, the Court must test the maintainability of the petition solely in the aforesaid backdrop.
The Court for the purposes of evaluating the correctness of this submission proceeds on the assumption that Section 3(1)(d) of the SC/ST Act is not attracted in light of the allegations made. The Court, however, finds itself unable to accept the contention as advanced by learned counsel for the applicant for the following reasons.
This Court is of the considered view that the question of maintainability of an anticipatory bail petition cannot be ruled upon solely upon an evaluation of the allegations made against the particular provision or clause of the 1989 Act which may be invoked in an FIR. This since Section 18 of the 1989 Act, bars an application under Section 438 Cr.P.C. if it relates to an FIR relating to all or any of the offences under that Act. The bar as imposed is not restricted to any particular clause of Section 3 that may stand mentioned in the FIR. It would thus be incorrect to answer the question of maintainability solely on the basis of the particular clause of Section 3 which may have been invoked at this stage of the proceedings.
For the purposes of adjudging and ruling upon the question of maintainability the Court would have to be satisfied, albeit prima facie, that none of the offences contemplated under Section 3 would stand evidenced from the allegations levelled in the FIR.
It was thus imperative for the applicant to establish that not just the offence under clause (d) of Section 3(1), but the offences otherwise contemplated in that provision and the other provisions of the 1989 Act are not established. In the present case, however, learned counsel for the applicant conceded that while the offence under clause (d) of Section 3 may not be made out, the other clauses of Section 3 would undisputedly stand attracted in light of the allegations which are levelled.
In view of the aforesaid position which is conceded and the reasons additionally recorded, the Court holds that the petition is not maintainable. It is accordingly dismissed as such.
Order Date :- 19.5.2021 faraz