1 2025:CGHC:21811 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 739 of 2025 1 - Gajanand Kenwat @ Gagendra @ Gajju Kewarth S/o Late Ajit Ram Kewarth Aged About 29 Years R/o Village Pota, Police Station Malkharouda, District Sakti, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh Through- Police Station- Ganj District- Raipur (C.G.) ... Respondent For Appellant : Shri Hemant Kesharwani, Advocate. For State : Ms. Vaishali Mahilong, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 09.05.2025 1. Despite service of notice, none appears on behalf of complainant/victim either in person or through virtual mode to raise objection/no objection in granting bail to the appellant, therefore this court proceeds to hear the appeal finally. 2. This Criminal Appeal has been preferred under Section 14(A)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'the Act, 1989') against order dated 28.03.2025 passed in Case No.7/2025 by the Special Judge (Scheduled Caste & Scheduled Tribe Prevention of Atrocities Act) Raipur, whereby the application filed by the appellant under Section 483 BNSS, 2023 for grant of regular bail in connection with Crime No.23/2025 registered at Digitally signed by INDRAJEET SAHU Date: 2025.05.13 16:54:17 +0530 2 Police Station, Ganj, District Raipur, for the offence under Sections 64(2)(m) & 69 of BNS, 2023 and Section 3(2)(v) of the Act, 1989, has been rejected. 3. Case of prosecution, in brief is that, on 26.01.2025 a written complaint was made by the victim to the police alleging that on 04.08.2024 she came to Raipur to earn her livelihood and started residing in a rented house at village Acholi, Urla. During her work in a Wire Factory at Urla she met with appellant and fallen in live with him. On 01.01.2025 he took her to Energy Park and they stayed at Radhey Hotel where the appellant committed sexual intercourse with her 3-4 times. Thereafter, he used to made physical relation with her whenever they found occasion. On 24.01.2025 he refused to marry with her and then report has been lodged. On the basis of written complaint, an FIR was registered on 26.01.2025 against the appellant for the aforesaid offences, in which the appellant has been arrested on same day i.e. 26.01.2025 and after investigation charge sheet was filed. 4. Learned counsel for the appellant would submit that the victim being a major girl having engaged in consensual physical relation with the appellant and she neither raised any alarm nor made any complaint to anyone about forceful act. It is only when she suspected that the appellant is not giving proper response to her, she lodged the report that he refused to marry with her. Looking to their long physical relation it prima facie appears that she was the consenting party in making physical relation. The appellant is in jail since 26.01.2025. Charge sheet has been filed and final adjudication may take sometime, therefore, the appeal may be allowed and the appellant may be enlarged on bail. 3 5. On the other hand the counsel for the State opposes the submission so made and submits that victim was sexually exploited by the appellant on the pretext of marriage and he used to took her with him repeatedly and made physical relation and ultimately refused to marry with her which thus amounts to offence of rape and therefore he is not entitled for bail. 6. I have heard learned counsel for the parties and perused the case diary. 7. 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 a Scheduled Caste or a Scheduled Tribe community. 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;” 8. 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 been committed without the necessary mens rea has often arisen for consideration. Generally, there is a 4 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.” 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." 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: 5 "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." 9. From FIR as well as the statement of victim recorded under Section 183 of BNSS it reflects that she was engaged in consensual physical relation with the appellant without raising any objection. Had the appellant been committed the offence knowingly that the victim belongs to that particular cast, he would not have given any assurance of marriage. Both of them were working together and as per her statement itself she was in love affair with him. Therefore, considering the contents of FIR as well as 183 BNSS statement of the victim and also the statement of other witnesses, the nature of allegation and the material collected during investigation, I am inclined to release the appellant on regular bail. 10.Accordingly, the appeal is allowed. The impugned order dated 28.03.2025 is set aside. It is directed that the appellant shall be released on bail on his furnishing personal bond in a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the concerned trial court on following conditions: 6 1. 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; 2. That, the appellant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; 3. That, the appellant shall appear before the trial Court on each and every date given by the said Court till disposal of the trial. 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 inder