Judgment:
ORDER
P.K. Misra, J.
1. This is an application under Section 438 of the Code of Criminal Procedure. Petitioner No. 2 is the wife of petitioner No. 1 and petitioner No. 3 is their son. The three petitioners apprehend that they may be arrested in connection with Phulbani Town P.S. Case No. 20 of 1996 which has been registered under Section 498A/34, Indian Penal Code and under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act'). The said case has been registered on the basis of a First Information Report lodged by one Tunilate Bhanja who has alleged in the F.I.R. that she is the wife of petitioner No. 3. It is alleged in the F.I.R. that the parents of petitioner No. 3 have got the latter married to another lady on 8-2-1996 in Puri Temple presumably because the informant is a lady belonging to lower caste (Ajati). It is further alleged that because of the said marriage, her husband (petitioner no. 3) is not coining to the matrimonial home. On the aforesaid allegation, the Officer-in-Charge, Town P.S., Phulbani, registered the case under Section 498A/34, Indian Penal Code, and under Section 3(1)(xii) of the Act.
2. The learned counsel for the petitioners submits that reading the entire F.I.R., it cannot be said that any prima facie case has been made out either under Section 498A, Indian Penal Code, or under Section 3(1)(xii) of the Act. The counsel further submits that the petitioners apprehend that they may be unnecessarily harassed by the police and they should be released on anticipatory bail.
The learned Standing Counsel appearing on behalf of the State vehemently opposes the application under Section 438 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') and submits that in view of the prohibition under secction 18 of the Act, the petitioner under Section 438 is misconceived.
3. Section 18 of the Act lays down as follows:-
18. Section 438 of the Code is 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.
The expression an 'accusation of having committed an offence under this Act' does not mean that mere registration of the case under the Act would ipso facto attract the prohibition contained in Section 18. The opinion of the police regarding the nature of alleged offence is neither final nor conclusive.
Merely because a case is mechanically registered under the Act, the provision of Section 438 of the Code cannot be said to be inapplicable in each and every case. If the allegations make out a prima facie case under Section 3 or for that matter Sections 4 and 5 of the Act, the jurisdiction to entertain an application under Section 438 is definitely ousted. Where however, the allegations do not make out any prima facie case punishable under any of the provisions of the Act, the bar under Section 18 is inapplicable and the provision of Section 438 of the Code can be availed of.
4. In the present case, the F.I.R. has been registered under Section 498A, Indian Penal Code, and Section 3(1)(xii) of the Act. Section 3(1)(xii) of the Act reads as follows:-
3. Punishments for offences of atrocities.-
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
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(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 have otherwise agreed;
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shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
Reading the F.I.R. as a whole, by no stretch of imagination it can be said that in the present case an offence under Section 3(1)(xii) of the Act has been committed. Since no prima facie case under Section 3 of the Act has been made out, it cannot be said that there is an 'accusation of commission of an offence under the Act' and as such I have no hesitation to say that the applicability of the provision of Section 438 of the Code is not excluded. My above view gets support from the decision of this Court reported in (1994) 7 OCR 20 (Jayanata Kumar Dass v. State of Orissa) which, in turn, relied upon and approved the decision of the Madhya Pradesh High Court reported in (1991) 3 Crimes 152 (Ramdayal v. State). I am in respectful agreement with the observations made in the aforesaid cases.
5. So far as alleged offence under Section 498A, Indian Penal Code, is concerned, reading the F.I.R. as a whole, it can also be said that no prima facie case under Section 498A, Indian Penal Code, has been made out. Merely because there is an allegation of second marriage, it cannot be said pri ma facie that an offence punishable under Section 498A, Indian Penal Code, has been committed. Suffice it to say that keeping in view the nature of the allegations, I consider it a fit case where the petitioners should be. released under Section 438 of the Code. I, therefore, direct that the petitioners in the event of their arrest shall be released on bail of Rs. 5,000/- each with one surety for the like amount to the satisfaction of the arresting officer in connection with Phulbani Town P. S. Case No. 20/96. While on bail, the petitioners shall co-operate in the investigation and make themselves available for interrogation by the Investigating Officer as and when required and shall not tamper prosecution evidence.
6. I may, however, indicate that any observation made by me regarding the nature of allegations while dealing with the bail application should be considered as prima facie opinion and should not prejudice the prosecution or the accused persons in any manner.
7. Subject to the aforesaid observations, this Criminal Misc. Case is disposed of.