1 2025:CGHC:18956 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 634 of 2025 Manoj Kumar Sahu S/o Shri Prakash Sahu Aged About 24 Years R/o Chandipara, P.S. Pamgarh, Distt.- Janjgir-Champa (C.G.) ... Appellant versus State Of Chhattisgarh Through - S.H.O. P.S. Chakradhar Nagar, Distt.- Raigarh (C.G.) ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. H.V. Sharma, Advocate For Respondent/State : Ms. Vaishali Mahilong, Panel Lawyer Hon’ble Shri Justice Ravindra Kumar Agrawal Order on Board 25/04/2025 1. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'the SC/ST Act'), against the order dated 12.03.2025, passed by learned Special Justice, [Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act], Raigarh, in Special Criminal Case under the Atrocities Act No. 4 of 2025, whereby the regular bail application of the appellant has been dismissed. VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.28 19:03:30 +0530 2 2. The case of the prosecution is that, on 22.01.2025, the victim lodged a report to the police that she was sexually exploited by the appellant from the month of November 2023 to the month of November 2025 on the pretext of marriage and now, he is evading the promise and refused to marry with her. The police had registered the offence under Sections 69, 351(3) of Bharatiya Nyaya Sanhita, 2023 (in short ‘BNS’) and Section 3(2)(v) of SC/ST Act. During the investigation, the appellant has been arrested on 25.01.2025 and after completion of investigation, charge sheet has been filed. 3. Learned counsel for the appellant would submit that the victim, being a major lady, having consensual physical relation with the appellant. She has never made any complaint to anyone and it is only when the dispute arose between them, she lodged a report that the appellant has committed rape upon her. The appellant is in jail since 25.01.2025, final adjudication of the case will take its own time. There is no ingredients of the offence under Section 3(2)(v) of SC/ST Act that the appellant knowingly committed rape upon her. Therefore, he may be enlarged on bail. 4. On the other hand, learned counsel for the State proposes and has submitted that the appellant has sexually exploited the victim on the pretext of marriage and ultimately refused to marry with her. From the statement of the victim, there are sufficient ingredients of the offence under Section 3(2)(v) of the SC/ST Act and therefore, his bail application is liable to be dismissed. 3 5. I have heard learned counsel for the parties and perused the material annexed with the petition as well as case diary. 6. 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;” 7. 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 4 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 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.” 5 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." 6 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." 7 8. 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. 9. Considering the submissions made by the learned counsel for the parties, considering the nature of allegations and the material collected during the investigation, further considering the statement of the victim recorded under Section 183 of the the Bharatiya Nagarik Suraksha Sanhita, 2023 and also that the final adjudication of the case will take its own time, I am inclined to release the appellant on bail. 10. Consequently, the appeal filed by the appellant is allowed. The impugned order dated 12.03.2025 is set aside. The appellant is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 25,000/- with one surety in the like sum to the satisfaction of the concerned trial Court. the appellant shall also abide by the following conditions:- (i) The appellant shall not, directly or indirectly, make any inducement, threat or promise to any person 8 acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court. (ii) The appellant shall not act, in any manner, which will be prejudicial to fair and expeditious trial, and (iii) The appellant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial unless his personal presence is exempted by the trial Court. 11. 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