R/CR.A/1848/2021 ORDER DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1848 of 2021
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REKHABEN SHAILESHBHAI MANUBHAI BARIA
Versus
STATE OF GUJARAT
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Appearance:
SHIVAM H CHOKSHI(9120) for the Appellant(s) No. 1
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED(64) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 03/01/2022
ORAL ORDER
1. Present appellant filed Criminal Misc. Application No. 724 of 2021 before the Court of learned 2nd Additional Sessions Judge, Chhota Udepur u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail on account of offence being registered vide C.R. No.11184004210237 of 2021 with Kadwal Police Station, Chhota Udepur for the offence punishable u/s. 366, 376 (2)(n), 506(2) and 114 of Indian Penal Code and Sections 3(1)(w), 3(1)(s) and 3(2)(v) of the of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned 2 nd Additional Sessions Judge, Chhota Udepur rejected the said application on 23.11.2021. Page 1 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022
R/CR.A/1848/2021 ORDER DATED: 03/01/2022
2. Feeling aggrieved by the said order, appellant has preferred present appeal under Section 14(A) of the Atrocities Act.
3. However notice was duly served to the first informant, she was not remained present either in person or through an advocate to contest this criminal appeal.
4. Heard learned advocate for the appellant and learned APP for the respondent-State.
5. Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence and appellant is not connected in any manner whatsoever with the alleged commission of offence. That, FIR is false and vexatious and is filed in gross abuse of process of criminal law against the present appellant. That name of the present appellant is not there in the FIR. Name of the appellant was transpired from the statement of the original accused and as per the law, statement before the Investigating Officer is not admissible in the court of law. That appellant has never abused nor threatened the complainant or any other person and the allegation to that effect in the impugned FIR is vague and false and just in order to harass the family of the accused No.1, the present appellant has been arraigned as the Page 2 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022 R/CR.A/1848/2021 ORDER DATED: 03/01/2022 accused. That, present appellant is unnecessarily dragged into the present offence. That, the appellant is the lady accused and aged about 31 years old. It is further submitted by learned advocate for the appellant that co-accused persons have been released on bail by this Court. Hence, it was requested by learned advocate for the appellant to allow present criminal appeal.
6. From the other side, learned APP for the respondent -State has strongly opposed the prayer made by the appellant and submitted that prima facie, offence was clearly made out against the present appellant. Therefore, no prayer may be granted by this Court for enlarging her on anticipatory bail. Ultimately, learned APP for the State has requested to dismiss the present appeal. As the respondent No.2 remained absent, no arguments was advanced.
7. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan Vs. State of Maharashtra reported in 2018(6) SCC 454, wherein the Hon'ble Supreme Court has held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. View taken by the High Court of Gujarat Page 3 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022 R/CR.A/1848/2021 ORDER DATED: 03/01/2022 in the case of Pankaj D. Suthar (supra) and Dr.N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(2)(5)(a), 3(g),3(p),3(r),3(s)(z)(c)& u/s. 8 of the Atrocity Act.
8. In the case of Union of India Vs. State of Maharashtra in Review Petition (Cri.) No.228 of 2018 in Criminal Appeal No.416 of 2018, it was opined that direction nos.(iii) and (iv) issued by the Hon'ble Supreme Court deserve to be and are hereby recalled and consequently we hold that direction no.(v), also vanishes. The other directions remained as it is as there is no bar in granting anticipatory. This Court has made scrutiny of the complaint and prima facie, it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint.
9. In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme Court Cases 531, it was Page 4 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022 R/CR.A/1848/2021 ORDER DATED: 03/01/2022 held that according to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe, he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view.
10. Having considered the facts of the case as well as arguments of learned APP for the respondent-State, it appears that present appellant is wife of the original accused no.1. As per allegation made in the complaint by the respondent no.2 herein, the prosecutrix was tried to escape from the custody of the accused no.1, at that time she was caught by the present appellant and she was not permitted to be free from the custody. No other allegations were made in the complaint by the respondent no.2 herein. On the contrary, it appears that Deputy Superintendent of Police, S.C./S.T. Cell, Chhota Udepur, in his report dated 12.10.2021, has suggested to delete the name of the present appellant from the FIR and suggested to treat the appellant as a star witness of the prosecution. Other co-accused persons namely Ajay Jentibhai Bariya was also released on regular bail by this Court (Coram: Hon'ble Mr. Justice Umesh A. Trivedi) in Criminal Appeal No.1213 of 2021 vide order dated 25.10.2021 and Page 5 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022 R/CR.A/1848/2021 ORDER DATED: 03/01/2022 co-accused persons namely Bhopatbhai Somabhai Kanasiya and others were released on anticipatory bail by this Court (Coram: Hon'ble Mr. Justice Umesh A. Trivedi) in Criminal Appeal No.954 of 2021 with Criminal Appeal No. 1223 of 2021 vide order dated 25.10.2021.
11. Therefore, considering the decision rendered in the aforesaid citations and considering the allegations made against the present appellant by the respondent and role played by the present appellant as well as considering the ground of parity, this Court is inclined to accept the prayer made by present appellant.
12. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 23.11.2021 passed in Criminal Misc. Application No. 724 of 2021 by learned 2 nd Additional Sessions Judge, Chhota Udepur is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of her arrest on furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that the appellant:-
(a) shall cooperate with the investigation and make herself available for interrogation whenever required;Page 6 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022
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(b) shall remain present at concerned Police Station on 10.01.2022 between 11.00 a.m. and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade her from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
13. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. The appellant shall remain present before the learned Magistrate on the first date of hearing of such application and on all Page 7 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022 R/CR.A/1848/2021 ORDER DATED: 03/01/2022 subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand.
14. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the appellant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
15. At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellant on bail.
16. Notice stands discharged. Direct service is permitted.
17. Registry is directed to send a copy of this order to the concerned Police Station as well as learned Sessions Court concerned through fax or email forthwith.
(B.N. KARIA, J) SUYASH Page 8 of 8 Downloaded on : Wed Jan 12 16:19:49 IST 2022