IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 11258 of 2024
Dukha @ Duhkha Tirkey …. Petitioner
Mr. U.S. Patel, Advocate
-versus-
State of Odisha & Another …. Opp. Parties
Mr. D. Biswal, ASC
COR AM:
THE HON’BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 30.10.2024
01. 1. Heard learned counsel for the Petitioner and the State.
2. This is an application for bail U/s.438 Cr.P.C. filed by
the Petitioner in anticipation of arrest for his alleged
involvement in the offences Under Sections.
147/148/307/457/380/294/506/323/427/149 of IPC and
Sections 3(1)(r)/3(1)(s)/ 3(2)(v) of SC & ST (POA) Act.
3. Learned counsel for the Petitioner submits that the
Petitioner belongs to the Scheduled Tribe community and
the offence U/s. 3(1)(r)/3(1)(s)/ 3(2)(v) of SC & ST (POA)
Act shall not be applicable to him. He, however, did not
file any document supporting his submission
4. In view of the bar under Sections 18 and 18-A of the SC
& ST (PA) Act, the present application under Section 438,
Cr.P.C. is not maintainable. The issue has been examined
by the Apex Court in the matter of Prithvi Raj Chauhan v.
Union of India and Others, reported in (2020) 1 OLR SC
419. In paragraph-10 of the said judgment, it has been held
that the provision of Section 438, Cr.P.C. shall not apply to
the case involving offence under SC & ST (PA) Act, 1989.
While saying so the Apex Court has further observed that,
if the complaint does not make out a prima facie case or
applicability of the provision of the Act, the bar created by
Sections 18 & 18-A of the Act shall not apply.
5. Further, this Court in Pramod Kumar Ray and others v.
State of Orissa, reported in (2017) 67 OCR 309, in the
light of the principles laid down by the Apex Court,
reiterated the same principles. Hence, this present
application is disposed of with the following observation:-
(i) In the event the Petitioner surrenders before the
learned Special Judge-Cum-Dist. & Sessions Judge,
Sundargarh, relating to Special G.R Case No. 78 of
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2023 arising out of Talsara P.S Case No.126 of 2023
within three weeks from today, before the court in
seisin over the matter, the Petitioner shall serve copy
of the bail application on the learned PP/Special PP
as required by him for the purpose of notice to the
victim or his/her counsel or dependent.
(ii) It is further directed that, on advance intimation,
the Case Diary and other relevant materials be made
available to the concerned court by the date of
surrender.
(iii) The learned Court is further directed to consider
the case of the Petitioner in accordance with law and
shall dispose of the application on the very same day
itself, strictly on its own merit. In the circumstance,
the Court is not precluded from granting any interim
protection to the Petitioner in appropriate case,
keeping in view the facts and circumstances of the
case, upon his satisfaction and not in routine manner.
6. The court shall apply its wisdom in allowing or
rejecting application keeping in view the gravity of
offences and severity of punishment. In the event any
document is produced with regard to the caste of the
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Petitioner the same be considered in accordance with law.
The ABLAPL is disposed of accordingly.
(Chittaranjan Dash)
Judge
Bijay
Signature Not Verified
Digitally Signed
Page 4 of 4
Signed by: BIJAY KETAN SAHOO
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 30-Oct-2024 18:54:41