Vatsal Pravinkumar Ramanlal ... vs State Of Gujarat
2021 Latest Caselaw 7392 Guj

    R/CR.A/606/2021                                      ORDER DATED: 01/07/2021



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/CRIMINAL APPEAL NO. 606 of 2021
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            VATSAL PRAVINKUMAR RAMANLAL BHAVASAR
                            Versus
                       STATE OF GUJARAT
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Appearance:
MR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1
NOTICE SERVED(4) for the Opponent(s)/Respondent(s) No. 2
MS KRINA CALLA, APP (2) for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                            Date : 01/07/2021

                                ORAL ORDER

1. Heard Mr. Hardik Raval, the learned counsel appearing for the appellant and Ms. Krina Calla, learned APP for the respondent State. Though served, none appears for respondent No.2.

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 appellant has challenged the order dated 16.04.2021 passed in Criminal Misc. Application No.162/2021 by learned Special Judge & Additional Sessions Judge, Sabarkantha at Idar, whereby, the application filed by the appellant seeking anticipatory bail under Section 438 of the Cr.P.C in the event of his arrest in connection with the FIR being C.R.No.11209020210388/2021 registered at Idar Police Station, Dist. Sabarkantha, for the offence punishable under Sections 406, 420, 354A, 504, 506(2), and 114 of Indian Penal Code, 1860 and Sections 3(1)(r), 3(1)(s), 3(1) (w), 3(1)(w)(ii) and 3(2)(va) of the Atrocities Act, has been dismissed.

3. Learned counsel for the appellant has raised the following main contentions :-

(i) That, the appellant is innocent and has been falsely implicated in the alleged offence and has not committed the offence as alleged in the FIR;

   R/CR.A/606/2021                                         ORDER DATED: 01/07/2021



   (ii)     That, there is delay of four months in lording the FIR and there is no

reasonable explanation being disclosed by the informant for such delay;

(iii) That, if the allegations made in the FIR are believed to be true in their entirety, without admitting the same, then also, prima facie, no ingredients of the offence under the provisions of the IPC and Atrocities Act are made out;

(iv) That, the other accused as named in the FIR have been enlarged on regular bail by the concerned Sessions Court;

(ii) Placing reliance upon the judgment of the Apex Court in the case of Pruthvi Raj Chauhan Vs. Union of India & Ors, [2020 (4) SCC 727], it was submitted that the complainant failed to make out a prima facie case qua the applicability of the provisions of the Atrocities Act are concerned and hence, bar created by Sections 18 and 18-A of the Act would not be applicable;

4. In view of the above contentions, learned counsel for the appellant prays to grant anticipatory bail to the appellant in the event of his arrest.

5. On the other side, Ms. Krina Calla, learned Addl. Public Prosecutor appearing on behalf of the respondent - State has opposed this appeal and prays for its rejection by contending that, on the basis of the allegations and material placed on record, no case for grant of anticipatory bail is made out. She further submits that, Section 18-A of the Atrocities Act clearly bars to grant anticipatory bail and therefore, prays that the appeal may be dismissed.

6. In the case of Subhash Kashinath Mahajan Vs. State of Maharashtra, [2018(6) SCC 454], the Apex Court held that, there is no absolute bar against the 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.

7. 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

R/CR.A/606/2021 ORDER DATED: 01/07/2021

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.

8. In the case of Pruthvi Raj Chauhan Vs. Union of India & Ors, [AIR 2020 1088] three Judges Bench of the Supreme Court read down Section 18 of the Atrocities Act by declaring as follows:

"Considering the applicability of provisions of Section 438 Cr.P.C, it shall not apply to the case under Act of 89. However, if complainant does not make out a prima facie for applicability of the provisions of the Act, the bar created by Section 18 and 18A (i) shall not apply."

9. The brief facts of the prosecution case are that, the accused Pravinkumar Ramanlal Bhavsar had borrowed an amount of Rs.37,70,000/- from the complainant on different occasion and was not returning the same. It is further alleged that, on 29.10.2020, the first informant and his wife had gone to the office of the main accused where the complainant and his wife insulted and humiliated and son of the accused (present appellant) had molested the wife of the complainant and abused her with the name of her caste. In this background of the facts, FIR came to be registered against the appellant and other accused persons for the offence as referred to above. The appellant herein being original accused No 3 had preferred anticipatory bail before the concerned Sessions Court, which came to be rejected vide order dated 16.04..2021.

10. Being aggrieved by and dissatisfied with the order of learned Sessions Court, the appellant has preferred this appeal.

11. This Court has considered the arguments advanced by learned counsel for the respective parties and perused the case papers. A plain reading of the FIR reveals that, there was a dispute with respect to financial transaction for which the main accused failed to repay the amount advanced by the complainant. It further reveals that, nowhere it is mentioned that the appellant accused is not a member of SC/ST caste and he was intentionally insulted by the accused with an intent to humiliate in a place within public view. Therefore, this Court is of considered view that, due to financial dispute with the father of the appellant,

R/CR.A/606/2021 ORDER DATED: 01/07/2021

the complainant arraigned the appellant in the alleged crime. It is pertinent to note that, the alleged offence took place on 29.10.2020, whereas, present FIR came to be reported on 08.03.2021 i.e. after a period of four months. It is further reported that, the other co-accused as named in the FIR have been enlarged on regular bail by the concerned Sessions Court. Further, considering the role attributable to the present appellant, his custodial interrogation is not found to be essential for the purpose of investigation. Hence, present appeal deserves consideration.

12. In the result, present appeal is allowed and the impugned order dated 16.04.2021 passed in Criminal Misc. Application No.162/2021 by learned Special Judge & Additional Sessions Judge, Sabarkantha at Idar, is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of his arrest in connection with the FIR being C.R.No.11209020210388/2021 registered at Idar Police Station, Dist. Sabarkantha 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 themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 11.07.2021 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 his 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

R/CR.A/606/2021 ORDER DATED: 01/07/2021

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;

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

(ILESH J. VORA,J) SUCHIT