Laduben Jaydevbhai Brahman vs State Of Gujarat
2021 Latest Caselaw 10124 Guj

      R/CR.A/301/2020                              ORDER DATED: 30/07/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 301 of 2020

=============================================
                        LADUBEN JAYDEVBHAI BRAHMAN
                                   Versus
                             STATE OF GUJARAT
=============================================
Appearance:
MR FB BRAHMBHATT(1016) for the Appellant(s) No. 1,2
MR.D H PANCHAL(6420) for the Appellant(s) No. 1,2
MR ANVESH V VYAS(5654) for the Opponent(s)/Respondent(s) No. 2
MR DINESHKUMAR J PRAJAPATI(9979) for the
Opponent(s)/Respondent(s) No. 2
MRS.KRINA CALLA APP(2) for the Opponent(s)/Respondent(s) No. 1
=============================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 30/07/2021

                               ORAL ORDER

[1] Heard Mr.F.B.Brahmbhatt, the learned counsel appearing for the appellants, Ms. Krina Calla, learned APP for the respondent State and Mr.Anvesh Vyas, learned counsel for respondent No.2 - original complainant.

[2] By this appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) Act, 1989 (hereinafter referred to as "the Atrocities Act" for short), the appellants have challenged the order dated 11.02.2020 passed in Criminal Misc. Application No.40 of 2020 by learned 5th Additional Sessions Judge Banaskantha at Deodar, the application filed by the appellants seeking anticipatory bail under Section 438 of the Cr.P.C in the event of their arrest in

R/CR.A/301/2020 ORDER DATED: 30/07/2021

connection with the FIR being C.R.No.11195045200007 of 2020, registered at Suigam Police Station, Dist. Banaskantha, for the offence punishable under Sections 306 & 114 of the Indian Penal Code and Section 3(2)(v) of the Atrocities Act, has been dismissed.

[3] The appellants are accused in C.R.No.11195045200007 of 2020, registered at Suigam Police Station, Dist. Banaskantha, for the offence punishable under Sections 306 & 114 of the Indian Penal Code and Section 3(2)(v) of the Atrocities Act.

[4] The prosecution allegation is that the appellants have abetted alleged act of suicide committed by deceased -Ramesh at his village by hanging himself with Banyan tree, who happened to be a brother of the informant. The deceased belongs to the member of the Scheduled Caste and Scheduled Tribe, accordingly the provisions of Atrocities Act have been invoked. After investigation, the alleged offences as referred to above against the present appellants have been registered. Thus, the appellants apprehend their arrest in the alleged crime.

[5] It is the submission of Mr.F.B.Brambhatt, learned counsel for the appellants that the appellants are innocent and have been falsely implicated in the alleged offence; that the impugned FIR is nothing but abuse of process of law. It was submitted that the allegations

R/CR.A/301/2020 ORDER DATED: 30/07/2021

against the appellants are false and it does not, in anyway indicate that the alleged act would constitute an offence of abetment to commit suicide; that no prima face case is made out for the offence as alleged under the Atrocities Act; that the appellants have no criminal record and are not likely to abscond; that custodial interrogation of the appellants are not found to be essential for the purpose of investigation.

[6] Learned counsel for the appellants brought to the notice of this Court as regards principles for grant of pre-arrest bail by placing reliance on the decision of Shri Gurbaksh Singh Sibbia Vs. State of Punjab [1980 (2) SCC 565], to submit that the appellants have made out the case for pre-arrest bail.

[7] On the other hand, Ms. Krina Calla, learned Addl. Public Prosecutor appearing on behalf of the respondent - State and Mr.Anvesh Vyas learned counsel appearing for respondent No.2 - Original complainant have opposed this appeal and pray for its rejection by contending that, considering the conduct of the appellants, nature of accusation, and therefore considering the nature of gravity of charge, severity of punishment in the event of conviction and supporting the material evidence on record, the appeal may not be entertained. It is further submission that under the Atrocities Act, there is no provisions for granting

R/CR.A/301/2020 ORDER DATED: 30/07/2021

anticipatory bail, and on this ground also, the appeal deserves to be dismissed.

[8] Having heard learned counsel for the respective parties and on perusal of the records, this Court finds that before the alleged incident, the deceased Ramesh was working as a farm labourer in the field of the appellants and before committing suicide, a suicide note in the form of chit was written by the deceased and it was found from his pocket, and same was sent to the Forensic Science Laboratory for the opinion of handwriting expert and the authority of the Forensic Science Laboratory opined that the handwriting of the chit is of the deceased. In the chit, the allegations of the deceased against the present appellants are to the effect that there was a doubt or suspicious in the mind of the appellants that the deceased having illicit relation with Vimla, daughter of the appellant Shantiben, for which, the appellants were harassing the deceased saying that Vimla has committed suicide, and now it is your turn.

[9] The law on the subject is settled by catena of decisions of this Court as well as Apex Court. The scope and ambit of Section 306 of the Indian Penal Code stipulates that if a person commits suicide, "whoever abets the commission of such suicide" shall be punished with imprisonment. Section 107 of the Indian Penal Code defines abetment which says that "a person abets doing of

R/CR.A/301/2020 ORDER DATED: 30/07/2021

a thing, who instigates any person to do that thing or intentionally aids, by any act. Thus, to constitute the offence of abetment there must exit (i) a direct or indirect instigation to commission of crime (ii) active role of the accused in instigating or doing an act facilitating the commission of crime.

[10] In the case of M.Arjunan Vs State (2019) 3 SCC 315, the Apex Court elucidated the essential ingredients of the offence under Section 306 of the Indian Penal Code in para 7 it reads thus:-

"7. The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."

[11] In the case of Amalendu Pal Vs. State of West Bengal (2010)1 SCC 707, the Apex Court in para 12 observed as under:

"12... It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."

R/CR.A/301/2020 ORDER DATED: 30/07/2021

[12] In the case on hand, considering the contents of the FIR and alleged suicide note (chit), it reveals that the deceased was aggrieved with the remarks of the appellants with respect to the allegations of maintaining illicit relation with the lady viz. Vimla and had taken advance money of Rs.35,000/- from the appellants. Under such circumstances, considering the law laid down by the Apex Court as referred to above, prima facie, there is no reasonable ground to believe that the appellants have abetted the alleged suicide.

[13] It is the contention of the learned APP and learned counsel appearing for the informant that under the Act, 1989, there is no provision for granting anticipatory bail. In the case of Hitesh Verma Vs. State of Uttarakhand reported in (2020)10 SCC 710, the Apex Court has reiterated the principle laid down in the case of Khuman Singh Vs. State of M.P and held that under the Act 1989, the offence is not established merely on the fact that the informant is a member of Scheduled Caste and Scheduled Tribe unless there is an intention to humiliate a member of such community. In the facts and circumstances of the present case, prima facie, there is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste. The prosecution failed to make out a prima facie case for applicability of the provisions of the Act, 1989. As a result, this Court is of the considered view

R/CR.A/301/2020 ORDER DATED: 30/07/2021

bar created under Section 18 & 18A(i) of the Act would not applicable. Reference can be made of the case of Rhana Jalal Vs. State of Kerala, [2021 (1) SCC 733], wherein the Apex Court after referring the case of Pruthvi Raj Chauhan Vs. Union of India & Ors, [2020 (4) SCC 727], held that bar will not apply where the complaint does not make out a "prima facie case" for the applicability of the provisions of the Atrocities Act, 1989. The observations made by the Apex Court in Paras 23, 24 & 25 reads as under:

"23. The provisions of Sections 18 and 18-A have been interpreted by a three-judge Bench of this Court in Prathvi Raj Chauhan Vs. Union of India ("Chauhan"). Arun Mishra, J speaking for himself and Vineet Saran, J. while construing these provisions, observed that: (SCC p.751, para 11)

"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 Sections 18 & 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.

             24. The      same view has been taken in Prathvi Raj
             Chauhan     in the concurring judgment of S.Ravindra Bhat,
             J. in the    following observations: (Prathvi Raj Chauhan
             Cas, SCC    P.759, para 32)

" 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."

25. Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where a bar is interposed by the provisions of Section 18 and sub-section (2) of Section 18-A on the application of Section 438 CrPC, this Court

R/CR.A/301/2020 ORDER DATED: 30/07/2021

has held that the bar will not apply where the complaint does not make out "a prima facie case" for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989."

[14] In view of the aforesaid discussion hereinabove, both the appellants are lady accused and aged about 36 years and 45 years respectively, their custodial interrogation are not found to be essential for the purpose of investigation, and have joined the investigation and they will not likely to abscond. Under such circumstances, this Court is of the considered view that the appellants have able to make out a case for grant of pre-arrest bail and accordingly the appeal deserves consideration.

[15] In the result, present appeal is allowed and the impugned order dated 11.02.2020 passed in Criminal Misc. Application No.40 of 2020 by learned 5 th Additional Sessions Judge Banaskantha at Deodar, is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of their arrest in connection with the FIR being C.R.No.11195045200007 of 2020, registered at Suigam Police Station, Dist. Banaskantha, on furnishing a bond of Rs.10,000/- each with surety of like amount on the following conditions that the appellants;

R/CR.A/301/2020 ORDER DATED: 30/07/2021

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 15.08.2021 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 them 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 their residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week;

(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;

[16] Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellants. The appellants shall remain present before the learned Magistrate on the first date of hearing of such application

R/CR.A/301/2020 ORDER DATED: 30/07/2021

and on all 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. 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 appellants, 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. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case.

(ILESH J. VORA,J) Manoj