Shreyas Hareshbhai Patanvadiya vs State Of Gujarat
2021 Latest Caselaw 6620 Guj

     R/CR.A/520/2020                                ORDER DATED: 22/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 520 of 2020

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                       SHREYAS HARESHBHAI PATANVADIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR. PARTH H BHATT(6381) for the Appellant(s) No. 1
MS KRINA CALLA, APP (2) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED(64) for the Opponent(s)/Respondent(s) No. 2
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 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. Parth H. Bhatt, 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 20.03.2020 passed in Criminal Misc. Application No.200/2020 by learned Special Atrocity Judge & 6th Additional Sessions Judge, Bharuch, 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.11199010200165/2020, registered at City "A" Division Police Station, Bharuch, Dist.

R/CR.A/520/2020 ORDER DATED: 22/06/2021

Bharuch, for the offence punishable under Sections 504 and 506(1) of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(1) and 5 of the Atrocities Act, has been dismissed.

4. The brief facts of the prosecution case are that: 4.1 The appellant is having an agricultural land bearing survey no.275 at Jhadeshwar, Bharuch City. According to the first informant as alleged in the FIR, there was a dispute of right of way from the land, as a result of which, the Collector, Bharuch has ordered for alternative way to use the agricultural land of the first informant. It is alleged in the FIR that the appellant had launched a residential scheme, for which the Collector, Bharuch and other authorities have stopped the construction and passed an order to demolish the construction, as the appellant did not have paid the amount of premium for non-agricultural use and subject litigation is still pending with the Revenue Authority. It is alleged in the FIR that on 19.02.2020, the first informant was present in the office of Deputy Collector, Bharuch for RTS Proceeding No.310/2019 where he met the appellant in the parking area, where the appellant abused with the name of his caste and asked him not to file frivolous litigation against him and threatened him that he would kill him. Under such circumstances, the FIR came to be lodged against the appellant under the aforesaid provisions as referred to above.

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

   (i)      That the appellant has been falsely implicated in the alleged





  R/CR.A/520/2020                                 ORDER DATED: 22/06/2021



  offence;


  (ii)     That the original informant has misused the provisions of

law and the present complaint is lodged with a malafide intention and ulterior motive;

(iii) That the allegations made in the FIR do not attract the ingredients of provisions of the Atrocities Act.

(iv) That the FIR is lodged after a delay of 17 days being an afterthought to assert undue influence upon the appellant;

(v) That the story put forward by the informant is absolutely unbelievable as the dispute between the first informant and the appellant arose 10 years ago and still it is continued before the Revenue Authority.

(vi) That the appellant do not have past antecedents of like nature and has co-operated with the investigation and his custodial interrogation is not essential for the purpose of investigation.

(vii) 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. Under the circumstances, learned counsel Mr. Parth Bhatt

R/CR.A/520/2020 ORDER DATED: 22/06/2021

appearing 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 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:

R/CR.A/520/2020 ORDER DATED: 22/06/2021

"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."

11.Having considered the facts of the case, the case papers and submissions made by learned counsels appearing for the respective parties, it appears that since 2006 the dispute with respect to right of way from the adjacent land is being continued with the appellant and other authorities. As alleged in the FIR, the appellant has developed a residential scheme on the land owned by him. The record further indicates that some revenue disputes are also pending with the revenue authorities at Bharuch. This Court is of the considered view that if the appellant would have grudge with respect to the litigation filed by the informant, then he could have threatened and pressurized the informant at the initial stage. Under such circumstances, prima facie, it appears that the main dispute is right of way from the adjacent land, as a result of which, the alleged FIR invoking the provisions of the Atrocities Act having been reported by informant. It is pertinent to note that the FIR is lodged after a delay of 17 days for which there is no sufficient explanation, more particularly when the informant by profession is an advocate. Under such circumstances when custodial interrogation of the appellant is not found to be essential for the purpose of investigation and the appellant is not likely to abscond and he has no any criminal antecedents of like nature, the appeal deserves consideration.

12.In the result, present appeal is allowed and the impugned order

R/CR.A/520/2020 ORDER DATED: 22/06/2021

dated 20.03.2020 passed in Criminal Misc. Application No.200/2020 by learned Special Atrocity Judge & 6th Additional Sessions Judge, Bharuch, 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.11199010200165/2020, registered at City "A" Division Police Station, Bharuch, Dist. Bharuch, 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 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





       R/CR.A/520/2020                               ORDER DATED: 22/06/2021

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