Kiran Himatlal Gadhavi vs State Of Gujarat
2021 Latest Caselaw 5890 Guj

    R/CR.A/486/2021                                         ORDER DATED: 14/06/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 486 of 2021

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                          KIRAN HIMATLAL GADHAVI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. R. K. RAJPUT(6988) 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 : 14/06/2021

                                ORAL ORDER

1. 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 22.02.2021 passed in Criminal Misc. Application No.73/2021 by the learned 4 th Additional Sessions Judge, Gandhidham-Kuchchh, whereby, the application filed by the appellant seeking anticipatory bail under Section 438 of the Cr.P.C in the event of their arrest in connection with the FIR being C.R.No.11993006201925/2020, registered at "A" Division Gandhidham Police Station, Dist. Kuchchha, for the offence punishable under Sections 306, 114 of the Indian Penal Code and Sections 3(2)(v) of the Atrocities Act, has been dismissed.

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2. Heard Mr.R.K. Rajput, learned counsel for the appellant and Ms. Krina Calla, learned APP for the respondent State. Though served, none appears for respondent No.2-original complainant.

3. Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated in the alleged offence. 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. It is submitted that 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.

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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, learned Addl. Public Prosecutor appearing on behalf of the respondent - State has opposed the appeal and prayed for its rejection by contending that on the basis of averments and material available on record, no case for grant of anticipatory bail is made out. It was further submitted that, Section 18A of the Atrocities Act clearly bars to grant anticipatory bail as prayed for by the appellants. Under the circumstances, learned APP 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 and are hereby recalled and consequently, we hold that direction no.(v), also vanishes. The other directions remained as it is as

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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. Considering the contentions raised by learned counsel for the parties and perusing the case papers, it appears that, the appellant apprehends arrest in connection with the offences under Section 306 and 114 of IPC and offences under the Atrocities Act as referred above. The plain reading of FIR shows that deceased Dhirajbhai Mafabhai Solanki has committed suicide on 06.09.2020 as he was harassed by the accused, who have landed money. As a result of which, the harassment was unbearable for the deceased and he hang himself in the house and committed suicide. Before the incident, deceased had prepared suicide note, wherein, names of accused have been mentioned. In this background facts, it appears that deceased being sub-contractor at Kandla Port, was used to take loan from the private persons and was failed to repay the same to the persons named in the suicide note. The record indicates that co-accused Kattullakumar Venkna has been extended the benefit of

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anticipatory bail by the coordinate bench of this Court vide order dated 12.01.2021 in Criminal Misc. Application No. 1067 of 2020. The facts mentioned in the suicide note and averments made in the FIR against the accused are amounted to abetment or not is a question of evidence. At this stage, inference cannot be draw that there was an abetment by the appellant.

10. In view of the above, this Court is incline to extend the benefit of anticipatory bail to the appellant. In the result, present appeal is allowed and the impugned order dated 22.02.2021 passed in Criminal Misc. Application No.73/2021 by the learned 4 th Additional Sessions Judge, Gandhidham-Kuchchh, 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.11993006201925/2020, registered at "A" Division Gandhidham Police Station, Dist. Kuchchha, 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 22.06.2021 between 11.00 a.m. a n d 2.00 p.m.;

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(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;

11. 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

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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.

12. Direct service through e-mode.

(ILESH J. VORA,J) P.S. JOSHI