Devendra Bhogilal Vyas vs State Of Gujarat
2021 Latest Caselaw 5987 Guj

       R/CR.A/967/2020                                     ORDER DATED: 15/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 967 of 2020
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                             DEVENDRA BHOGILAL VYAS
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR YASH N NANAVATY(5626) for the Appellant(s) No. 1
MR JAYESH A DAVE(253) for the Opponent(s)/Respondent(s) No. 2
MRS.KRINA CALLA APP(2) for the Opponent(s)/Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                  Date : 15/06/2021
                                    ORAL ORDER

[1] By this appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act' for short), the appellant has challenged the order dated 25.09.2020 passed by the learned 5th Additional Sessions Judge & Special Judge (Atrocities Cases), Bhuj-Kutch in Criminal Misc. Application No.854 of 2020, whereby the application filed by the appellant seeking anticipatory bail under Section 438 of the Criminal Procedure Code in the event of arrest in connection with the First Information Report being CR. No.11205006200313 of 2020 registered with the Gadhshisha Police Station, Bhuj (Kutch West) for the offences punishable under Sections 294(B), 323, 506(2) & 114 of the IPC, and Sections 3(1)(r), 3(1)(s), 3(1)(f) & 3(2)(va),4 of the Atrocities Act, has been dismissed.

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

[3]              Heard      Mr.Yash     Nanavati      learned    counsel        for     the
appellant,        Mr.Jayes      Dave,      learned      advocate        for      original





       R/CR.A/967/2020                                     ORDER DATED: 15/06/2021

complainant- respondent No.2 and Mrs. Krina Calla, learned APP for the respondent State through video conference. [4] Learned counsel appearing on behalf of the appellant has raised the following main contentions:-

(i) that no prima facie case is made out against the appellant for an offence under the provisions of Atrocities Act and as such regardless of the provisions of Section 18-A of the Act, therefore, the appellant is entitled to benefit of anticipatory bail;

(ii) that the appellant is absolutely innocent and has not committed the alleged offence as the FIR in question being registered because of private and personal grudge;

(iii) relying upon the judgment of Apex Court in the case of Parthvi Raj Chauhan Vs. Union of India reported in (2020) 4 SCC 727 to submit that the complainant failed to make out the prima facie case for applicability of the provisions of 1989 Act, the bar created by Section 18 and 18-A(I) of the Act, 1987 shall not apply;

(iv) that the appellant is a Government servant and he will be retiring in near future and in the event of his arrest being a Government servant may entail serious adverse consequences of his service condition;

(v) there are no other criminal antecedent against the present appellant and the appellant has cooperated in the investigation;

(vi) that the prosecution case is based upon the documentary evidence, and therefore the question does not arise for tampering with the evidence.

[5] In view of the above contentions, learned counsel for

R/CR.A/967/2020 ORDER DATED: 15/06/2021

the appellant prays to allow the appeal.

[6] On the other hand, Mrs.Krina Calla, learned Additional Public Prosecutor and Mr.Jayes Dave, learned counsel appearing on behalf of the respondent No.1- State and respondent No.2 original complainant respectively have opposed the present appeal and pray 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. They submits that Section 18-A of the Atrocities Act clearly bars to grant anticipatory bail and therefore, they pray that the appeal may be dismissed.

Mr.Jayes Dave, learned advocate reiterating the contentions of the Affidavit-in-reply to submit that the appellant alleged to have abetted the alleged offence, and being a Government Officer, he knew the earlier proceedings of the case and he did not caution his Superior Authority, as a result, letter of instruction being issued by the TDO and the name of the complainant has been removed from the Register of Gram Panchayat. Under such circumstances, the appeal may not be entertained.

[7] Brief facts of the prosecution case are that the complainant is a owner of the immovable property situated at village Rampar, Taluka: Mandvi, Dist. Kutch, which was registered on the record of Rampar Gram Panchayat as property No.4/70-1. One Mr. Devraj Lalji Rabdiya had raised the dispute with respect to the property possessed by the complainant as his vacant plot is adjacent to the house of the complainant. Mr. Devraj Rabdiya has executed one power of attorney in favour of the accused Jethalal Rabdiya and being a power of attorney holder of the vacant plot, he made correspondence to the different authorities raising dispute that the name of the complainant in the Register of Gram Panchayat having been wrongly registered and the transactions of

R/CR.A/967/2020 ORDER DATED: 15/06/2021

sale entered by the complainant, is bogus and illegal. The accused Jethalal Rabadiya had also filed a complaint before the SIT, Bhuj, and upon inquiry, the SIT found not to process with the complaint. The accused Jethalal Rabdiya thereafter moved an application before the Mandvi Taluka Panchyat Office against the proceedings undertaken by the Gram Panchayat with the respect to the disputed property. The Taluka Development Officer after verifying the facts of the application, issued a letter of instructions addressed to Rampar Gram Panchayat directing to remove the name of the complainant from the Register of the Gram Panchayat as a owner of the disputed property. Under such circumstances, the prosecution has been initiated against the main accused Jethalal Rabdiya and the Taluka Development Officer- Mr.V.P.Joshi and the Assistant Taluka Development Officer - Devendra Vyas - present appellant. [8] Having heard the learned counsel for the respective parties and having gone through the records produced and report of the Investigating Officer and on going through the precedents on the subject like; Gurubaksh Singh Sibbia V. State of Punjab [1980(2) SCC 565] Siddharam Satlingappa Mhetre V. State of Maharashtra [AIR 2011 SC312] and Sushila Aggarwal and Ors. Vs. State of (NCT of Delhi) and Another [2020(5)SCC1], this Court is of the considered view that since long dispute with respect to the alleged property were pending between the parties. The dispute seems to be a private in nature. It appears from the record that during the course of investigation, it reveals that the appellant was serving as Assistant Taluka Officer with Mandvi Taluka Panchayat Office and while issuing the letter of instruction by Taluka Development Officer, he did not point out the proceedings of SIT. Thus,

R/CR.A/967/2020 ORDER DATED: 15/06/2021

considering the role attributed to the appellant in the alleged crime, prima facie, it appears that the appellant has not received any monetary benefits from the main accused and had no any intention to abet the accused in the alleged commission of crime. The report of the Investigating Officer shows that the appellant has joined the investigation and he having no criminal antecedents of like nature. This Court find that no serious allegations made by the complainant so far provisions of Atrocities Act is concerned. Under such circumstances, without expressing any opinion on the merits of the case, I find no reason to decline granting anticipatory bail to the appellant. Hence, the present appeal is allowed and the impugned order dated 25.09.2020 passed by the learned 5 th Additional Sessions Judge & Special Judge (Atrocities Cases), Bhuj-Kutch in Criminal Misc. Application No.854 of 2020, 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 CR.

No.11205006200313 of 2020 registered with the Gadhshisha Police Station, Bhuj (Kutch West) on furnishing a bond of Rs.25,000/- 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 - 30.06.2021 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;

R/CR.A/967/2020 ORDER DATED: 15/06/2021

(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 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;

[9] 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