Chattisgarh High Court
Aniket Shrivastava vs State Of Chhattisgarh on 17 April, 2025
1
2025:CGHC:17766
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 537 of 2025
Aniket Shrivastava S/o Hemendra Kumar Shrivastava Aged About 33 Years
R/o House No. D/1, Ward No.-39, House Of Smt. Chhaya Shrivastava,
Khandelwal Colony, Korin Bhata, Rajnandgaon, Police Station- Basantpur,
Tehsil And District- Rajnandgaon, Chhattisgarh
... Appellant
versus
1 - State Of Chhattisgarh Through - Police Station Kotwali, District-
Rajnandgaon, Chhattisgarh
2 - X.Y.Z. (Complainant)
... Respondents
(Cause title taken from Case Information System)
For Appellant : Ms. Priyanka Rai, Advocate
For Respondent/State : Ms. Binu Sharma, Panel Lawyer
Hon’ble Shri Justice Ravindra Kumar Agrawal
Order on Board
17/04/2025
1. The instant Criminal Appeal is preferred under Section 14-A(2) of the
Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act,
Digitally
signed by
VEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:
2025.04.28
1989, (in short “SC/ST Act”), against the order dated 28.02.2025,
18:54:09
+0530
2passed by learned Special Judge (Atrocities Act), Rajnandgaon, in
Bail Petition No. 108 of 2025, whereby the application filed by the
appellant for grant of anticipatory bail in connection with Crime No.
82 of 2025, registered at Police Station Kotwali Rajnandgaon, District
Rajnandgaon (C.G.), for the offence under Sections 498-A, 376 and
376-A of IPC and Section 3(2)(va) and 3(1)(b)(ii) of the SC/ST Act,
has been rejected.
2. The brief facts of the case are that on 19.05.2023, the victim lodged
an online complaint to National Commission for Women, New Delhi
against the appellant that he sexually and mentally exploited her and
the police has not taken any action against him. In turn, when the
complaint was forwarded to the police station Kotwali, Rajnandgaon,
the FIR of Crime No. 82 of 2025 has been registered on 19.02.2025
against the appellant for the offence under Sections 85, 86(a) of the
Bharatiya Nyaya Sanhita, 2023. It is alleged that the appellant had
sexually exploited her since last 07 years and twice he got aborted
her pregnancy. On 10.06.2022, despite performing marriage at Arya
Samaj, he has not kept her with him and started assaulting her. She
made police complaint, but no action has been taken on her
complaint and ultimately, she lodged an online complaint to the
National Commission for Women, New Delhi. The statement of the
victim was recorded on 19.02.2025, in which she disclosed the
sexual relation with the appellant since 2016, marriage performed on
10.06.2022, harassment by the appellant with her and also initiated a
Court’s proceeding in the month of November, 2023 and thus the
offence under Sections 498-A, 376, 376-B of IPC and Sections 3(2)
3
(va) and 3(1)(b)(ii) of SC/ST Act have been added, in which the
appellant is apprehending his arrest.
3. Learned counsel for the appellant would submit that the appellant
has been falsely implicated in the offence. The victim is a major girl
aged about 32 years, and was having love affair with the appellant
since 2016. They performed marriage on 10.06.2022 at Arya Samaj
Mandir at Raipur. After the marriage, the behaviour of the victim was
not good with the appellant and his family members and she wanted
to reside as per her own whims and not given any respect to his
family members. The matrimonial tie started deteriorating and
culminated into various police complaints. On 10.12.2022, she made
a complaint to Mahila Thana, Rajnandgaon, in which counseling
proceeding was started, but on 10.01.2023, she gave in writing to
Mahila Thana, Rajnandgaon that, despite performing love marriage
on 10.06.2022, he has not kept her with him and she wanted to
reside with him as his wife and she does not want any counseling
and wanted to get the case decided by the Court. She made another
complaint to Superintendent of Police, Rajnandgaon against the
present appellant as well as his family members for registration of the
case under the dowry harassment and domestic violence, in which
the matter was being inquired by the Basantpur police station,
Rajnandgaon and it was reported that, earlier she made a complaint
to Mahila Thana, Rajnandgaon, in which a report under Section 155
of CRPC was already given to the victim on 10.01.2023 and by
exaggerating her complaint, she again made another complaint and
there is no substance found on the complaint of the victim. She
4
would also submit that the appellant has filed an application on
28.10.2023 under Sections 12 and 13 of the Hindu Marriage Act,
1955 before the learned Family Court, Rajnandgaon, which is
pending for its consideration, in which the victim has made her
appearance and contesting the same, yet she has made her
complaint to the National Commission for Women, New Delhi and in
turn, the FIR has been registered against him. She would further
submit that, the victim is a major girl aged about 32 years and was in
love affair with the appellant since 2016. It is only a matrimonial
dispute, which given colour in the criminality only to create pressure
upon the appellant. Initially, the FIR has been registered for the
offence under Sections 85 and 86(a) of the Bharatiya Nyaya Sanhita,
2023 and subsequently, the offence under Sections 498-A, 376, 376-
B of IPC and Sections 3(2)(va) and 3(1)(b)(ii) of SC/ST Act are
added. In the complaint, she herself admitted that she was in relation
with the appellant since 2016, but the complaint has been lodged on
19.05.2023 to National Commission for Women, New Delhi and
thereafter the FIR has been registered on 19.02.2025. She would
further submit that the appellant has performed marriage with the
victim on 10.06.2022 and due to the adamant altitude of the victim,
the dispute arose between the parties and ultimately, the appellant
has filed an application under Sections 12 and 13 of the Hindu
Marriage Act, 1955 before the learned Family Court, Rajnandgaon
and to came out from the matrimonial proceeding and create
pressure upon the appellant, she lodged the report. There is no
allegation in the FIR that the appellant committed rape upon her
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knowingly that she belongs to the scheduled tribe community or left
her on that ground alone. Since, the offence has not been committed
knowingly that she belongs to Scheduled Caste community, the bar
under Section 18 of the SC/ST Act is not applicable in the present
case and merely mentioning the offence under the SC/ST Act, it
would not be sufficient to dislodge the appellant to take benefit of
anticipatory bail under the provisions of Section 483 of the Bhartiya
Nagarik Suraksha Sanhita. There should be a prima facie material to
show that the appellant has committed the offence as mentioned
under the SC/ST Act. Therefore, the appellant may be extended the
benefit of anticipatory bail.
4. Per contra, the learned counsel for the respondent/state would
oppose the submission made by the learned counsel for the
appellant and has submitted that the FIR has been registered for the
offence under Sections 85 and 86(a) of the Bharatiya Nyaya Sanhita,
2023 and subsequently, the offence under Sections 498-A, 376, 376-
B of IPC and Sections 3(2)(va) and 3(1)(b)(ii) of SC/ST Act are
added. She read over the contents of the FIR in support of her
contention. She would further submit that the victim was sexually
exploited by the appellant and her consent was obtained by alluring
her that he would marry her and kept her with him. In view of the
provisions of Section 18 of the SC/ST Act, the anticipatory bail
application is not maintainable and even otherwise, in view of the
allegations made by the victim against the appellant, he is not
entitled to anticipatory bail and his application is rightly rejected by
the learned trial court and the appeal is also liable to be dismissed.
6
5. In the present appeal, the notice was issued to the victim vide order
dated 17.03.2025 and in pursuance thereof, she appeared before
this Court through virtual mode from DLSA, Rajnandgaon on
02.04.2025 and raised objection in granting anticipatory bail to the
appellant.
6. I have heard learned counsel for the parties and perused the material
annexed with the appeal as well as the case diary.
7. First, it is to be considered the bar of the anticipatory bail application
as provided under Section 18 of the SC/ST Act. Section 18 of the
SC/ST Act defines that :-
“18. Section 438 of the Code 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.
[18A. No enquiry or approval required.–
(1) For the purposes of this Act,–
(a) preliminary enquiry shall not be required
for registration of a First Information Report
against any person; or
(b) the investigating officer shall not require
approval for the arrest, if necessary, of any
person,
against whom an accusation of having committed
an offence under this Act has been made and no
7procedure other than that provided under this Act
or the Code shall apply.
(2) The provisions of section 438 of the Code shall
not apply to a case under this Act, notwithstanding
any judgment or order or direction of any Court.]”
8. In the matter of “Shajan Skaria v. State of Kerala and Another“,
2024 SCC Online SC 2249, the Hon’ble Apex Court has held that
Section 18 of the SC/ST Act does not create an absolute bar on the
anticipatory bail application or examining whether the prima facie
case under the SC/ST Act is made out or not. The Courts are
entrusted with a duty to verify the averments in the complaint and to
find out whether an offence under the SC/ST Act is prima facie made
out or not. In para 41 of its judgement, the Hon’ble Apex Court has
held that:-
“41. It is clear from the aforesaid discussion that
Section 18 of the Act, 1989 does not impose an
absolute fetter on the power of the courts to examine
whether a prima facie case attracting the provisions
of the Act, 1989 is made out or not. As discussed,
Section 18 stipulates that in any case which involves
the arrest of any person on the accusation of having
committed an offence under the Act, 1989, the benefit
of anticipatory bail under Section 438 of CrPC would
not be available to the accused. We have deliberated
on the significance of the expression “arrest of any
person” appearing in the text of Section 18 of the Act,
1989 and are of the view that Section 18 bars the
remedy of anticipatory bail only in those cases where
8a valid arrest of the accused person can be made as
per Section 41 read with Section 60A of CrPC.”
9. In the matter of “Prithvi Raj Chouhan v. Union of India and
Others“, 2020 (4) SCC 727, the Hon’ble Supreme Court has held in
para 11, 32 and 33 that:-
“11. Concerning the applicability of provisions of
Section 438 CrPC, it shall not apply to the cases
under the 1989 Act. However, if the complaint does
not make out a prima facie case for applicability of
the provisions of the 1989 Act, the bar created by
Section 18 and 18-A(i) shall not apply. We have
clarified this aspect while deciding the review
petitions.
32. As far as the provision of Section 18-A and
anticipatory bail is concerned, the judgment of
Mishra, J. has stated that in cases where no prima
facie materials exist warranting arrest in a complaint,
the Court has the inherent power to direct a pre-arrest
bail.
33. I would only add a caveat with the observation
and emphasis that while considering any application
seeking pre-arrest bail, the High Court has to balance
the two interests; i.e. that the power is not so used as
to convert the jurisdiction into that under Section 438
of the Criminal Procedure Code, but that it is used
sparingly and such orders made in very exceptional
cases where no prima facie offence is made out as
shown in the FIR, and further also that if such orders
are not made in those cases, the result would
9inevitably be a miscarriage of justice or abuse of
process of law. I consider such stringent terms,
otherwise contrary to the philosophy of bail,
absolutely essential, because a liberal use of the
power to grant pre-arrest bail would defeat the
intention of Parliament.”
10. Section 3(2)(va) of the SC/ST Act provides that if the offence under
the IPC is to be committed “knowing” that such person is a member
of the SC/ST …….. Section 3(2)(va) of the SC/St Act is reproduced
hereinbelow:-
“3. Punishments for offences atrocities.–
2) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe,–
(va) commits any offence specified in the
Schedule, against a person or property,
knowing that such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
shall be punishable with such punishment
as specified under the Indian Penal Code
(45 of 1860) for such offences and shall
also be liable to fine;”
11. The word “knowingly” in the provision would convey the “mens rea”
and “culpable mental state” to commit an offence. In the matter of
“Bharath Booshan Aggarwal v. State of Kerala“, 2022 (19) SCC
401, in para 27, 28 and 29, the Hon’ble Supreme Court has held
that:-
10
“27. This is a significant aspect, because unlike some
statutes, the Act in the present case, does not create a
presumption about a culpable mental state of the
alleged offender. Instead, the nature of the
presumption is that it relates to the ownership of the
forest produce. This important aspect has a bearing
on the matter. Whether an offence can be said to have
been committed without the necessary mens rea has
often arisen for consideration. Generally, there is a
presumption that mens rea is an essential ingredient
in every offence. Yet, that presumption can be
displaced either by the phraseology of the law
creating the offence or by the subject matter with
which it deals; both must be considered. This court, in
Nathulal v. State of Madhya Pradesh, in that context,
observed as follows:
“4. …Mens rea is an essential ingredient of a
criminal offence. Doubtless a statute may
exclude the element of mens rea, but it is a
sound rule of construction adopted in England
and also accepted in India to construe a
statutory provision creating an offence in
conformity with the common law rather than
against it unless the statute expressly or by
necessary implication excluded mens rea. The
mere fact that the object of the statute is to
promote welfare activities or to eradicate a grave
social evil is by itself not decisive of the
question whether the element of guilty mind is
excluded from the ingredients of an offence.
Mens rea by necessary implication may be
11excluded from a statute only where it is
absolutely clear that the implementation of the
object of the statute would otherwise be
defeated. The nature of the mens rea that would
be implied in a statute creating an offence
depends on the object of the Act and the
provisions thereof.”
28. Umashanker v. State of Chhattisgarh 20 underlined
the existence of mens rea, as follows: (SCC pp. 643-
44. paras 7-8)
“7. Sections 489-A to 489-E deal with various
economic offences in respect of forged or
counterfeit currency notes or banknotes. The
object of the legislature in enacting these
provisions is not only to protect the economy of
the country but also to provide adequate
protection to currency notes and banknotes. The
currency notes are, in spite of growing
accustomedness to the credit card system, still
the backbone of the commercial transactions by
the multitudes in our country. But these
provisions are not meant to punish unwary
possessors or users.
8. A perusal of the provisions, extracted above,
shows that mens rea of offences under Sections
489-B and 489-C is ‘knowing or having reason to
believe the currency notes or banknotes are
forged or counterfeit’. Without the
aforementioned mens rea selling, buying or
receiving from another person or otherwise
12
trafficking in or using as genuine forged or
counterfeit currency notes or banknotes, is not
enough to constitute offence under Section 489-
B Penal Code, 1860. So also possessing or even
intending to use any forged or counterfeit
currency notes or banknotes is not sufficient to
make out a case under Section 489-C in the
absence of the mens rea. noted above.”
29. In Raghunath Singh v. State of M.P. this Court held
that use of the word “know” would mean that mens
rea of the offender has to be established:
“Section 368 speaks of “knowledge” when it
says, “Whoever knowing that any person has
been kidnapped or has been abducted,
wrongfully conceals or confines such person .”
The Penal Code, 1860 uses two different
expressions in its different parts. Sometimes the
gist of the offence is dependant on knowledge
and the words “knowing” or “knowingly” are
used to indicate that knowledge as such must be
proved either by positive evidence or
circumstantially before mens rea can be
established. Sometimes (see for example
Sections 212, 411, etc.), the expression “has
reason to believe” is used. The words “knowing”
or “knowingly” are obviously more forceful than
the words “has reason to believe” because they
insist on a greater degree of certitude in the
mind of the person who is said to know or to do
the act knowingly. It is not enough if the
13
evidence establishes that the person has reason
to suspect or even to believe that a particular
state of affairs existed. When these words are
used, something more than suspicion or reason
for belief is required. Before an offence under
Section 368 could be brought home it must be
established that accused knew that the person
had been kidnapped or abducted.”
12. Reverting to the facts of the present case, from the perusal of the FIR
as well as the statements of the victim and witnesses, it appears that
the victim was in relation with the appellant since 2016, when she
was studying at Rajnandgaon. In the year 2019 and 2021, when she
conceived pregnancy, she got aborted her pregnancy and on
10.06.2022, they performed marriage at Arya Samaj Mandir, Raipur
and he left her alone to her house. Despite her efforts, he has not
taken her with him. On 11.12.2022, she made an application to
Mahila Thana, Rajnandgaon and in the counseling proceeding, he
refused to keep her with him and then she gave her written complaint
for taking action against him. When no action was taken, she again
made a complaint on 20.02.2023 to Superintendent of Police,
Rajnandgaon. From perusal of the document (Annexure A-4), it also
appears that on 10.01.2023, an intimation under Section 155 of
CRPC was given to the victim to approach before the competent
Court to redress her grievances, as the dispute between them is a
matrimonial dispute. On the further complaint made by her on
20.02.2023 to the Superintendent of Police, Rajnandgaon another
inquiry was conducted by the Basantpur police station, Rajnandgaon,
14
who also not found any prima facie evidence with respect to
commission of the alleged offence. From the document (Annexure A-
7), it also reflects that on 28.10.2023, the applicant has filed an
application under Sections 12 and 13 of the Hindu Marriage Act,
1955 before the learned Family Court, Rajnandgaon, in which the
victim appeared in the proceeding and contesting her case. It is not
the case here that the appellant developed physical relation with the
victim on the ground that she belongs to scheduled tribe community
or knowingly that she belongs to the said particular community. It is
also not the case here that the appellant refused to marry with her.
Admittedly, they performed marriage at Arya Samaj Mandir, Raipur,
but it is a case where the appellant is not obeying his matrimonial
obligation.
13. In order to bring home the charge of the offence under Section 3(2)
(va) of the SC/ST Act, the prosecution is required to show that the
offence was committed knowingly, that the person was a member of
the reserved category and where there is no such material, the
offence under Section 3(2)(va) of the SC/ST Act could not be said to
be prima facie made out. In view of the above, this Court finds that
merely because the offence under Section 3(2)(va) of the SC/St Act
is registered against the appellant, the learned trial Court rejected the
application of the appellant for grant of anticipatory bail holding it to
be not maintainable in view of the provision contained under Section
18 of the SC/ST Act, without taking into consideration the provisions
of Section 3(2)(va) of the SC/ST Act as well as the law laid down by
the Hon’ble Supreme Court in the field, and if the material on record
15
leads to satisfaction that the complaint does not make out a prima
facie case for applicability of the provisions of the SC/ST Act, the bar
created under Section 18 of the SC/ST Act shall not apply, and in
appropriate cases of exceptional nature, the benefit of anticipatory
bail could be admitted to the appellant.
14. In the present case, the contents of the FIR mention that the
appellant kept her with him since 07 years and twice he got aborted
her, on 10.06.2022, he performed marriage with her at Arya Samaj
Mandir, Raipur, but has not kept her with him and started assaulting
her. When she had gone to the house of the appellant, his father
threatened her and thrown her out from her house. The first incident
of alleged rape is said to have been committed in the year 2016 and
thereafter, they continued in physical relation. Had the appellant
committed the offence on the ground that the victim belongs to
scheduled tribe community, he would have not given any assurance
of marriage to her or have not performed marriage. She being a
major girl, who would know about the consequence of physical
relation with a person. Further, in the preliminary enquiry on the
earlier complaint made by the appellant, no offence prima facie was
found to be committed with her. All the facts and circumstances of the
case and in view of the aforesaid law laid down by the Hon’ble
Supreme Court, the case of the appellant would fall within the
exceptional cases.
15. Consequently, the appeal filed by the appellant is allowed and the
impugned order dated 28.02.2025, passed by learned Special Judge
16
(Atrocities Act), Rajnandgaon, in Bail Petition No. 108 of 2025 is set
aside. It is directed that in the event of arrest of the appellant in
connection with the aforesaid offence, he shall be released on bail by
the officer arresting him on his furnishing a personal bond in the sum
of Rs. 50,000/- with one surety in the like sum to the satisfaction of
the concerned arresting officer. The appellant shall abide by the
following conditions:-
(i) that the appellant shall make himself available
for interrogation before the investigating officer as
and when required;
(ii) that the appellant shall not, directly or indirectly,
make any inducement, threat or promise to any
person acquainted with the facts of the case so as
to dissuade him/her from disclosing such facts to
the Court or to any police officer;
(iii) that the appellant shall not act, in any manner,
which will be prejudicial to fair and expeditious
trial; and
(iv) that the appellant shall appear before the trial
Court on each and every date given to them by the
said Court till disposal of the trial.
16. It is made clear that any observation made in this order is restricted
only for consideration of the present appeal. The learned trial Court
shall decide the case on its own merits without being influenced by
any observation made in this order.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
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