Shakilhusen Ahmedhusen ... vs State Of Gujarat
2021 Latest Caselaw 8005 Guj

     R/CR.A/598/2021                           ORDER DATED: 08/07/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 598 of 2021

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        SHAKILHUSEN AHMEDHUSEN BALOCH(MAKRANI)
                              Versus
                       STATE OF GUJARAT
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Appearance:
MR APURVA R KAPADIA(5012) for the Appellant(s) No. 1
JAY R SHAH(8428) for the Opponent(s)/Respondent(s) No. 2
MS KRINA CALLA, APP (2) for the Opponent(s)/Respondent(s) No. 1
SUNIL H PRAJAPATI(8350) for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                           Date : 08/07/2021

                              ORAL ORDER

1. Heard Mr. Apurva R. Kapadia, learned counsel appearing for the appellant, Mrs. Krina Calla, learned APP for the State and Mr. Jay Shah, learned counsel for the informant - respondent No.2 herein.

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 22.04.2021 passed in Criminal Misc. Application No.289/2021 by learned 2nd Additional Sessions Judge, Chhota Udepur, 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.11184002210186/2021, registered at Chhota Udepur Police Station, Dist. Chhota Udepur, for the offence punishable under Sections 143, 147, 149, 452, 427,

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376(2) n, 307, 504, 506(2) of the Indian Penal Code, 1860 and Section 135 of the G.P.Act and Sections 3(1)(r)(s)(w-2) and 3(2)(v) of the Atrocities Act, has been dismissed.

3. The brief fact of the prosecution case is that, the appellant is the accused in the offence being C.R.No.11184002210186/2021 registered at Chhota Udepur Police Station, alleging the offence under Sections 143, 147, 452, 427, 376(2)(n), 307, 504, 506(2) of the IPC and Sections 3(2)(iv) of the Atrocities Act. It is alleged by the victim informant that, she had been raped by the appellant on the promise of marriage, as a result of which, she got pregnant and other co-accused have caused the injuries to abort the pregnancy and the appellant abused her by calling her caste name. Pursuant to the FIR, the appellant herein had preferred anticipatory bail before the concerned Sessions Court, which came to be rejected vide order dated 22.04.2021.

4. It is the submissions of learned counsel for the appellant that he has been falsely implicated in the alleged offence; that the complainant is in habit of filing the FIR invoking the provisions of the Atrocities Act; that she has filed three complaints against the different individuals alleging the offence of rape and thereby, she has abused the process of law by invoking the provisions of the Atrocities Act.

5. Learned counsel for the appellant brought to the notice of this Court, 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, considering the tendency of the victim to file false complaints, the personal

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liberty of the appellant may be protected.

6. Learned counsel for the appellant would submit that, there is no any past antecedent of like nature and the prosecution has not pointed out the possibility of the appellant to flee from justice. Under such circumstances, it is prayed that the appellant may be extended the benefit of pre-arrest bail.

7. On the other side, Ms. Krina Calla, learned Addl. Public Prosecutor appearing on behalf of the respondent - State and Mr. Jay Shah, learned counsel appearing for respondent No.2 - informant have opposed this appeal and pray for its rejection by contending that, the allegations against the appellant are serious in nature and therefore, considering the role attributed to the appellant, he may not grant benefit of pre-arrest bail. It is further submitted that, under the Act, 1989, there is no provision for granting anticipatory bail and therefore, on account of restriction in grant of anticipatory bail under the Act, 1989, the appeal may not be allowed.

8. Considered the rival submissions and perused the case papers. Record indicates that, before this FIR, the victim had filed two FIRs against the different individuals of village Chhota Udepur. Out of two, one was filed against four persons on 26.07.2019 under Section 504, 506(2) and 114 of the IPC and Section 3(2)(v)(a) and 3(1)(r) of the Atrocities Act and other one was filed against seven persons under Sections 376, 377, 420, 323, 504, 506(2), 507 and 114 of IPC and under Section 3(1)(10) of the Atrocities Act.

9. In the present case, a bare reading of the FIR reveals that, there is a delay of seven months in lodging the FIR as for the

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incident dated 28.08.2020, the FIR came to be lodged on 15.03.2021. It is evident that, the prosecution is unable to produce the medical case papers to show that, on account of the alleged offence, the victim aged about 36 years got pregnant. In view of the aforesaid facts, this Court is of the considered view that, the victim remained in the company of the appellant for a considerable period. A bare reading of the FIR, nowhere it mentioned that, the appellant abused her by calling her caste name. The allegations of humiliation are vague and general in nature. It is pertinent to note that, the alleged incident according to the version of the victim was happened at her home. Thus, prima facie, it is not established that, the victim was insulted or intimidated by the appellant in a place within public view.

10. The provisions of Sections 18 & 18A have been interpreted by a three Judge Bench of the Apex Court in Pruthvi Raj Chauhan Vs. Union of India & Ors, [2020 (4) SCC 727]. Para 11 of the judgment reads thus:

"11. concerning the applicability of the provisions of Section 438 CrPC., it shall not apply to the cases under the 1989 Act. However, if the complainant does not make out a prima facie case for applicability of the provisions of 1989 Act, the bar created by Section 18 & 18-A (i) shall not apply.

11. Recently, in the case of Rhana Jalal Vs. State of Kerala, [2021 (1) SCC 733], the Apex Court relying on the decision of Pruthvi Raj Chauhan (supra), held that, the bar will not apply where the complainant does not make out a prima facie case for the applicability of the provisions of the Atrocities Act. Para 25 of the judgment reads thus:

"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

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18 and sub-section (2) of Section 18-A on the application of Section 438 CrPC, this Court 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."

12. In view of the dictum of law and considering the facts and circumstances of the present case, this Court is of considered view that, prima facie no case is made out, so far the applicability of provisions of Atrocities Act is concerned and therefore, the bar created under Section 18 & 18-A (i) will not be attracted.

13. It may not be out of place to reiterate the basic principles governing the grant of anticipatory bail or pre-arrest bail as has been crystalized by the Hon'ble Supreme Court through its various judgments in the subject, one of which is extracted below.

In the case of Shri. Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 at paragraph 7 the Court while explaining the purport of Section 438 Cr.P.C has held that:

"7. The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41s Report. Neither the section nor its marginal note so describes it but, the expression 'anticipatory ail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.........The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued..." It is well settled that grant or refusal of pre-arrest bail is a

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discretionary power vested on the competent Court, including the High Court, however, it is also incumbent on the Court concerned to exercise this power judiciously. As laid down by the Apex Court while considering and dealing with cases of prayer for grant of pre- arrest bail, some of the factors indicated below has to be taken into consideration. These factors are:--

"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences.

(v) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(vi) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;"

14. In the context of the case in hand, this Court is of the considered view that, looking to the tendency of the victim to file repeated FIRs and considering the allegations made in the FIR, the appellant has been able to make out a case for grant of pre-arrest bail.

15. In the result, present appeal is allowed and the impugned order dated 22.04.2021 passed in Criminal Misc. Application No.289/2021 by learned 2nd Additional Sessions Judge, Chhota Udepur, 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.11184002210186/2021, registered at Chhota Udepur Police Station, Dist. Chhota Udepur, on furnishing a bond of Rs.10,000/- each with surety of

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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 20.07.2021 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 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 appellant. The appellant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent

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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