Chattisgarh High Court
Divyesh Jethwa Urf Madan Jethwa vs State Of Chhattisgarh on 15 April, 2025
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2025:CGHC:17333
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 92 of 2025
Divyesh Jethwa Urf Madan Jethwa S/o Lt. Pankaj Jethwa Aged About 24
Years R/o Pali, Police Station Pali, District Korba Chhattisgarh.
... Appellant
versus
State Of Chhattisgarh Through Police Station Pali District Korba
Chhattisgarh.
... Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. Anshul Tiwari, Advocate
For Respondent/State : Mr. Karan Kumar Baharani, Panel Lawyer
Hon’ble Shri Justice Ravindra Kumar Agrawal
Order on Board
15/04/2025
1. The instant Criminal Appeal is preferred under Section 14-A(2) of the
Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act,
1989, (in short “SC/ST Act”), against the order dated 16-12-2024
passed by learned Special Judge {SC/ST (P.A.) Act}, Korba, in Bail
VEDPRAKASH
DEWANGAN
Application No. 754 of 2024, whereby the application filed by the
Digitally signed
appellant for grant of anticipatory bail in connection with Crime No.
by VEDPRAKASH
DEWANGAN
Date: 2025.04.17
16:34:20 +0530
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322/2024, registered at Police Station Pali, District Korba (C.G.) for
the offence under Sections 376(2)(n), 294, 323 of IPC and Section
3(2)(v) of the SC/ST Act, has been rejected.
2. The brief facts of the case are that on 20-11-2024, the victim has
lodged a written report to the police that she introduced with the
appellant through mobile phone on 14-02-2024 and thereafter the
appellant proposed her through Whats-app that he will marry her and
called her in his house. On 20-03-2024, when she had gone to his
house, he made physical relation with her on the pretext of marriage
and get her introduced with his mother and sister. When she
requested him for marriage, he refused her yet he made physical
relation on 07-10-2024. She lodged the report against the appellant
that he committed rape upon her on the pretext of marriage. The FIR
has been registered on 20-11-2024 for the offences under Section
376(2)(n), 294, 323 of IPC. During the investigation, the Social Status
Certificate of the victim has been seized and the offence of Section
3(2)(v) of SC/ST Act is added and investigation is going on, in which
the appellant 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 23 years, and was having love affair with the appellant. In
order to extort money from him, she developed physical relation with
the appellant and pressurized him to marry with her and when the
appellant refused for the same, report has been lodged. Initially the
offence has been registered under Section 376(2)(n), 294 and 323 of
IPC but subsequently, the offence of Section 3(2)(v) of the SC/ST Act
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is added. In the written complaint itself it is alleged that their relation
was continued since 20-03-2024 but the report has been lodged on
20-11-2024, further despite refusal by the appellant, she made
physical relation with him on 07-10-2024 which clearly shows that
she was the consenting party in making physical relation with the
appellant. He would also submit that the last incident of rape is
alleged to have been made on 07-10-2024 whereas the report has
been lodged on 20-11-2024 which is after about a month and there is
no explanation of the delay in lodging the report. It is also submitted
by him that he borrowed Rs. 20,000/- from the victim in the month of
June-2024 for the treatment of his mother and repaid Rs. 15,000/- to
her. Rs. 15,000/- is the outstanding amount which he has to repay to
her but she created pressure upon him to refund the same,
threatened him and tried to obtain his signature over a blank stamp
paper which he refused and at that time some quarrel took place
between them. The appellant has made a written complaint to the
police on which the intimation under Section 155 of Cr.P.C. was given
to him. Presently, the dispute between the appellant and the victim is
settled and they wanted to marry with each other and the victim has
executed an affidavit to that effect also on 27-10-2024. He would also
submit that there is no allegation in the FIR that the appellant
committed rape upon her knowingly that she belongs to the
Scheduled Caste 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
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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 Section 376(2)(n), 294, 323 of IPC, however, during
the investigation it reveals that the victim belongs to SC community
and her Social Status Certificate has been seized and offence of
Section 3(2)(v) of SC/ST Act is added. He has read over the contents
of the FIR in support of his contention. He would further submit that
the victim was sexually exploited by the appellant on the pretext of
marriage and her consent was obtained by alluring her that he would
marry her and ultimately refused. 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.
5. In the present appeal, the notice was issued to the victim vide order
dated 16-01-2025 and in pursuance thereof, she appeared in person
before the court on 06-03-2025 and submitted that she is having no
objection in granting anticipatory bail to the appellant.
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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
procedure 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.]”
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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
a 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:-
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“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
inevitably 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.”
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10. Section 3(2)(v) 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)(v) 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,–
(v) commits any offence under the Indian
Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or
more 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 imprisonment for
life and with 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:-
“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
9been 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
excluded 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.”
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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
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.”
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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
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.”
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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, there is no
whisper of allegation that the appellant has committed the offence
knowingly that the victim belongs to Schedule Caste community or
that he refused for the marriage for the reason that she belongs to
that particular caste. In order to bring home the charge of the offence
under Section 3(2)(v) 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)(v) 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)(v) 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)(v) 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 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
applicant.
13. In the present case, the contents of the FIR mention that the
appellant has developed physical relations with the victim on the
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pretext of marriage. The first incident of alleged rape is said to have
been committed on 20-03-2024, and at that time, the appellant
showed his intimacy and proposed to her. Subsequently, the
appellant refused to marry her, but he again made physical relation
on 07-10-2024 and thereafter, a written report was lodged on 20-11-
2024. Had the appellant committed the offence on the ground that
the victim belongs to the Schedule Caste community, he would not
have given any assurance of marriage to her. She being a major girl
would know about the consequence of physical relation with a
person. The FIR has been registered for the offence of Section
376(2)(n), 294 and 323 of IPC.
14. From the perusal of the complaint made by the appellant to the police
on 29-10-2024 (Annexure A-3) and the intimation under Section 155
of Cr.P.C. (Annexure A-4) would show that there was some money
dispute between the appellant and the victim which also makes the
appellant entitled for protection from his arrest. Further, the victim
executed an affidavit on 27-10-2024 (Annexure A-1) that they wanted
to marry each other, and now she has no grievance with the
appellant and also that she has not raised any objection in granting
the benefit of anticipatory bail to the appellant when she appeared in
person before this court on 06-03-2025. 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 16-12-2024 passed by learned Special Judge
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{SC/ST (P.A. Act)}, Korba, in Bail Application No. 754/2024 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