Ishwarbhai Jivanbhai Parmar vs State Of Gujarat
2021 Latest Caselaw 5782 Guj

      R/CR.A/403/2021                               ORDER DATED: 10/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 403 of 2021

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                         ISHWARBHAI JIVANBHAI PARMAR
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR AV NAIR(5602) for the Appellant(s) No. 1
MR RAJABHAI J GOGDA(3628) for the Appellant(s) No. 1
ADILHUSHAIN M SAIYED(9723) 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 : 10/06/2021

                                  ORAL ORDER

[1] By this appeal under Section 14A(2) 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 impugned order dated 10.03.2021 passed in Criminal Misc. Application No.486 of 2021 by learned 11th Sessions Judge & Special Judge (Atrocity), Bhavnagar, 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.11196039210041 of 2021 registered at Nandesari Police Station, Dist. Vadodara City for the offence punishable under Sections. 323, 294(b), 506(2), 306, 114 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(2)(v) & 3(2)(va) of the Atrocities Act, has been dismissed.

[2] Being aggrieved by the impugned order, the appellant preferred present appeal under Section 14A(2) of the Atrocities Act.

       R/CR.A/403/2021                                    ORDER DATED: 10/06/2021



[3]             It is the submission of the learned counsel Mr. A.V.Nair

appearing for the appellant that the appellant is innocent and has not committed any offence as alleged in the FIR, therefore, allegations made against the present appellant are mala fide, false and vexatious. It is also submitted that the allegations made in the FIR do not constitute any offence under the provisions of the Atrocities Act and the allegations pertaining to the offence under the provisions of Indian Penal Code, prima facie, are also, false, concocted and misconceived and disclose with malafide intention. In support of his submission, learned advocate for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Hitesh Verma Vs. State of Uttrakhand & Anrs. Reported in (2020)AIR SC 5584, wherein it is held that mere insult of a person belonging to the Scheduled Caste or Scheduled Tribe would not constitute an offence punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) Act, unless the alleged insult or intimidation is on account of victim belonging to the Scheduled Caste or Scheduled Tribe. Thus, prima facie, the ingredients for the alleged offences punishable under Section 294 or 506 or 306 or 323 of the Indian Penal Code are not made out in the facts of the present case. In this regard, learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of M.Arjunan Vs. The State represented by its Inspector of Police (2019)3 SCC 315, wherein, the Hon'ble Supreme Court has held as under:

The essential ingredients of the offence under Section 306 of the Indian Penal Code 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 of the Indian Penal Code.

R/CR.A/403/2021 ORDER DATED: 10/06/2021

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.

[4] Mrs.Krina Calla, learned Additional Public Prosecutor appearing on behalf of the respondent - State opposed the present appeal contending that considering the conduct of the appellant, nature of accusation, this Court may not entertain prayer of Anticipatory Bail.

[5] Mr.A.M.Saiyed, learned advocate appearing on behalf of the respondent No.2 vehemently opposed prayer for anticipatory bail and submitted that the present appellant had abeted in the alleged commission of suicide and there is a prima facie evidence for involvement in the crime in question. Therefore, this Court may not exercise the discretion in favour of the appellant.

[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 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:

R/CR.A/403/2021 ORDER DATED: 10/06/2021

"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] Heard learned advocates for the respective parties through video conference.

[10] Having heard learned advocates for the parties and perused the case papers available on record.

[11] In the instant case the deceased Ketan has committed suicide on 14.02.2021. The plain reading of the complaint shows that on 11.02.2021 at about 11.30 p.m., deceased Ketan had entered into the house of the accused Ullasben, where he saw Ullasben and the present appellant - Ishwarbhai in a compromise position. On the next date i.e. 12.02.2021, the accused - Ullasben and their family members raised objection with respect to the conduct of the deceased and quarrel between them was arisen. On 13.02.2021, the same incident was happened. On 14.02.2021, the present appellant Ishwarbhai came into picture. According to the case of the prosecution, the appellant slapped to deceased and gave threatened that he will book him in a false case of theft. In this background of facts, the deceased has decided to end his life. In my considered view that the main cause for the incident was conduct of the deceased, who had entered into the house of the accused Ullasben at night. As a result of which, the dispute between the parties was arisen. It is admitted fact that the present appellant - Ishwarbhai is a permanent resident of Manjhalpur, Vadodara City and during 11.02.2021 to 12.02.2021, when the dispute was arisen, he was not present at the place.

        R/CR.A/403/2021                                    ORDER DATED: 10/06/2021




[12]             In view of the conduct of the deceased, this Court is of view

that the appellant accused might have scolded him and acted as alleged in the FIR, however, the allegations made against the present appellant amounted to abetment or not is a question of evidence. At this stage inference cannot be drawn that there was an abetment by the appellant. The co­accused has already been enlarged on bail. The appellant has joined the investigation and fully co­operated in the investigation and he is not likely to abscond and his custodial interrogation is not required for the purpose of investigation. Under this circumstance, this Court is inclined to exercise the discretion in favour of the appellant. Hence, the present appeal is allowed and the impugned order dated 10.03.2021 passed in Criminal Misc. Application No.486 of 2021 by learned 11 th Sessions Judge & Special Judge (Atrocity), Bhavnagar, is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of their arrest in connection with the FIR being C.R.No.11196039210041 of 2021 registered at Nandesari Police Station, Dist. Vadodara City 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 himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on ­ 24.06.2021 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

R/CR.A/403/2021 ORDER DATED: 10/06/2021

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 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) Manoj