Judgment:
ORDER
K.K. Varma, J.
1. Applicant by Shri D.R. Sharma, Acvocate. State by Shri D.R. Sihare, Panel Lawyer. They are heard.
2. Applicant Bharat Singh Ravat apprehends his arrest in Crime No. 20/91 (P.S. Harijan Kalyan, Gwalior) registered under Sections 341, 376 and 506 (Second Part), Indian Penal Code and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The other co-accused are Kamal Singh, Munna Singh and Surendra Singh.
3. Mathura Bai, wife of Jagram, a member of the Scheduled Tribe (aged 35 years) is the prosecutrix in this case.
4. The first point for determination is whether Section 18 of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 is bar to the entertainment of this application under Section 438(1), Criminal Procedure Code.
5. Section 18 of the Act reads as under : --
'18. Section 438 of the Code not to apply to persons committing an offence wider 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.'
6. The Police have also made an accusation under Section 3(1)(xii) of the Act which runs as follows :
'3. Punishments for offences of atrocities. -- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -
..... ...... ...... ....... ....... ....... (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed.' ..... ...... ...... ....... ....... .......
7. The version of the prosecutrix Mathura Bai, in her F.I.R. is that while she had been cutting kans near a stream outside her village, applicant Bharat Singh and co-accused Munna Singh, Surendra Singh and Kamal Singh of her own village surrounded her. Co-accused Munna bore her down amongst kans and then he had sexual intercourse with her. Co-accused Surendra also committed sexual intercourse with her ignoring her entreaties. At this juncture some persons belonging to her village appeared on the scene and then the four accused persons fled.
8. Thus, ex facie a case of an abetment of the rapes is made out against the applicant on the supposition that the F.I.R. contains the truth. That is so because the applicant had come in a group of four persons of which two had committed rapes in his presence. Thus, coming of the applicant with others and his continued presence while the rapes were going on is the salient feature bringing the case of the applicant as an abettor and an abetment of such an offence is punishable with the punishment provided for the main offence.
9. On the face of it, the rapes were committed purely by use of brute force represented by the appearance of the accused persons in a group and the use of criminal force and threat of criminal assault for overcoming her will. On the other hand, Clause (xii) of Sub-section (1) of Section 3 proceeds on the supposition that the accused being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed.
10. In my view, this provision envisages a case of a prior association in fact of the offender and the victim in which the offender was in a position to dominate the will of the woman and the woman was in a position, by virtue of that association, susceptible of being so dominated by the offender. Besides, there has to be evidence that the offender used that position to exploit her will to which she would not have otherwise agreed. In other words, it contemplates the exploitation of a woman sexually by virtue of the position occupied by the offender with reference to the victim under a state of association between them. Illustrations come to the mind are the master and a female servant, a guardian and a ward, a teacher and a student, an elderly relative of the victim etc. The offence of rape, as defined under Section 375, Indian Penal Code, is clearly distinguishable from an offence punishable under Section 3(1)(xi) of the Act. Thus, in the instant case, the aforementioned provisions are not applicable to the facts of the case. However, the learned Panel Lawyer, for the State, submitted that these facts bring the case within the purview of provisions of Clause (xi) of Sub-section (1) of Section 3 of the Act which run as follows:
'3. Punishments for offences of atrocities. -- (1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe. -
..... ...... ...... ....... ....... ....... (xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty'. ..... ...... ...... ....... ....... .......
11. In the instant case, there were assaults and use of force upon Mathura Bai and the only intent that could be attributed to the assault or the use of force was with intent to dishonour or outrage her modesty.
12. The fact that these ingredients also form part of the ingredients of the offence of rape do not make out any case for the exclusion of the operation of the provisions of Clause (xi) of Sub-section (1) of Section 3 of the Act. Hence, I accept the submission of the Panel Lawyer for the State, and hold that the facts of the case bring to the fore the provisions of Clause (xi) of Sub-section (1) of Section 3 of the Act and as such, the provisions of Section 18 come into play.
13. In the result, this application under Section 438(1), Criminal Procedure Code is hereby dismissed as untenable in view of Section 18 of the Act.