Orissa High Court: In an application under Section 438 of the Code of Criminal Procedure, 1973 (‘CrPC’) filed by a Doctor against the apprehension of his arrest in relation to a case for offences under Section 376(2)(n)/313/506 of the Penal Code, 1860 (‘IPC’), Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) and Sections 3(1)(r) read with Section 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC and ST Act’), Sashikanta Mishra, J. allowed the application and granted anticipatory bail to the Doctor.
Background
The Prosecution’s case was that a First Information Report (‘FIR’) was lodged by ‘X’, against the principal accused for offences under Section 376(2)(n) read with Section 313 and 506 of the IPC, Section 6 of the POCSO Act and Sections 3(1)(r) read with Section 3(1)(s) and 3(2)(va) of the SC and ST Act. It was stated that ‘X’ worked as a maid in the house of principal accused and that he maintained a physical relationship with her on the pretext of marriage, but when ‘X’ got pregnant, she was forced to abort the child. During the investigation it was revealed that ‘X’ was a minor girl at the time of occurrence and that she belonged to SC category, whereas the principal accused belonged to general category. Later, when the principal accused took ‘X’ to his house, under the pressure of the villagers to accept ‘X’ as his wife, he conspired with the local pharmacist and the Manager of a Nursing Home for termination of the pregnancy of ‘X’.
‘X’ gave birth to a premature baby girl but was abandoned by the principal accused. The baby girl was handed over to the present applicant (‘Doctor’) by the principal accused. On the apprehension of his arrest in the said matter, the Doctor filed the present application under Section 438 of the CrPC.
Analysis and Decision
On the question of maintainability of the application under Section 438 of the CrPC, the Court perused Section 18 and 18-A of the SC and ST Act, which places bar for entertaining an application under Section 438 of the CrPC. The Court said that ordinarily, an application under Section 438 of CrPC would not be maintainable where the offence under Section 3 of the SC and ST Act is involved. However, the Supreme Court has interpreted the provision to imply that the bar operates only when the offence under Section 3 of the SC and ST Act is, prima facie, made out but where the offence under SC and ST Act is not, prima facie, made out, the bar in the provisions under Section 18 and 18-A of the SC and ST Act would not operate.
Further, the Court relied on Dharani Pradhan v. State of Orissa, 2014 SCC OnLine Ori 261, wherein it was held that merely because the case is registered under Section 3 of the SC & ST (PA) Act, there is no bar in entertaining an application under Section 438 of CrPC and that if the offence is, prima facie, not made out, the bar would not apply.
Therefore, the Court reiterated that there is no absolute bar against grant of anticipatory bail in cases under the SC and ST Act particularly when, the offences alleged to have been committed under the said Act are, prima facie, not made out.
The Court noted that the Doctor was not named as an accused in the FIR. The Court also noted that he just facilitated the delivery of the child, being a doctor, and that he accepted the child and took her home, when she was abandoned. The Court also noted that the Child Welfare Committee rescued the child from his wife’s custody. The Court said that the Doctor’s apprehension of his arrest in the said matter was justified as there was a link between him and the transaction in question, though not negative. The Court also added that there was a possibility that the police may take him into custody to elicit more information about the occurrence. The Court stated that the present case was a case of the existence of the possibility more than probability of the Doctor being arrested.
Therefore, the Court held that the application under Section 438 of the CrPC was maintainable, hence, anticipatory bail was granted. The Court directed that in the case of arrest, the Doctor shall be released on such terms and conditions as the arresting officer may deem fit and proper to impose.
[Dr. Satyendra Prakash Verma v. State of Odisha, Anticipatory Bail Application No. 50 of 2024, Decided on: 25-01-2024]
Advocates who appeared in this case :
For the Petitioner: Umesh Chandra Jena and A.S. Paul, Advocates
For Opposite Parties: Additional Standing Counsel Sitikanta Mishra
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