Harshadbhai Mansukhlal Lalpura vs State Of Gujarat
2021 Latest Caselaw 6615 Guj

     R/CR.A/236/2021                                ORDER DATED: 22/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 236 of 2021

==========================================================
                       HARSHADBHAI MANSUKHLAL LALPURA
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
KULDEEP J MEHTA(8571) for the Appellant(s) No. 1
MR MEET M KATIRA(10504) for the Appellant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
MS KRINA CALLA, APP (2) for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                Date : 22/06/2021

                                 ORAL ORDER

1. Though served, none appeared for the respondent no.2.

2. Heard Mr. Kuldeep Mehta, the learned counsel appearing for the appellant and Ms. Krina Calla, learned APP for the respondent State.

3. 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 25.01.2021 passed in Criminal Misc. Application No.59/2021 by learned 5 th Additional Sessions Judge & Special Judge (Atrocity Cases), Bhuj-Kachchh, 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

R/CR.A/236/2021 ORDER DATED: 22/06/2021

connection with the FIR being C.R.No.11205042210081/2021, registered at Bhuj City "A" Division Police Station, Dist. Kachchh West-Bhuj, for the offence punishable under Sections 504, 506(2) and 294(b) of the Indian Penal Code and Sections 3(1)

(r) and 3(1)(s) of the Atrocities Act, has been dismissed.

4. The brief facts of the prosecution case are that: 4.1 The informant being a sweeper was working at the shop opposite the house of the appellant and in that process the garbage flew towards the house of the appellant, as a result of which, heated conversation having been arise between the parties and as per the allegations, the appellant abused the informant with name of her caste as she belongs to Scheduled Caste community. In this background of facts, the FIR came to be registered under the aforesaid offence as referred to above.

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

(i) The appellant has been falsely implicated in the alleged offence;

(ii) The allegations under the provisions of the Atrocities Act are not levelled against the present appellant and therefore, it is a fit case to grant anticipatory bail.

(iii) The cross-complaint for the alleged incident having been reported by the present appellant is prior to filing of the present FIR and therefore the dispute raised by the complainant appears to be revenge in nature and only criminal colour is being given to the

R/CR.A/236/2021 ORDER DATED: 22/06/2021

present case.

(iv) 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;

6. In view of the above contentions, learned counsel for the appellant prays that the appeal may be allowed and 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 has opposed this 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. 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.

8. 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.

9. 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

R/CR.A/236/2021 ORDER DATED: 22/06/2021

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.

10.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."

11. Considered the arguments and perused the case papers. From the record it appears that cross-complaint for the alleged offence being reported by the present appellant as the informant had illegally entered into the house of the appellant and demolished the compound wall and intimidated him. On the basis of alleged complaint by the appellant, the informant Hansaben released by the Competent Authority and thereafter, the present complaint came to be filed. Under such circumstances, it appears that after filing the first complaint by the appellant for the alleged offence, the informant after a delay of 11 days has filed the present complaint invoking the provisions of the Atrocities Act. In view of the aforesaid facts, this Court is of the considered view that when the appellant has joined the investigation and is not likely to abscond and his custodial interrogation is not found to be essential for

R/CR.A/236/2021 ORDER DATED: 22/06/2021

investigation, this Court find no reason to decline granting of anticipatory bail to the present appellant. Hence, present appeal deserves consideration.

12.In the result, present appeal is allowed and the impugned order dated 25.01.2021 passed in Criminal Misc. Application No.59/2021 by learned 5th Additional Sessions Judge & Special Judge (Atrocity Cases), Bhuj-Kachchh, 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.11205042210081/2021, registered at Bhuj City "A" Division Police Station, Dist. Kachchh West-Bhuj, 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 02.07.2021 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

R/CR.A/236/2021 ORDER DATED: 22/06/2021

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. Direct service is permitted through e- mode.

(ILESH J. VORA,J) TAUSIF SAIYED