Aakash Vinesh Malik vs State Of Gujarat
2021 Latest Caselaw 6665 Guj

    R/CR.A/732/2020                                    ORDER DATED: 22/06/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 732 of 2020

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                            AAKASH VINESH MALIK
                                   Versus
                             STATE OF GUJARAT
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Appearance:
JAIVIK UDAY BHATT(7319) for the Appellant(s) No. 1,2
MR UDAY H BHATT(6457) for the Appellant(s) No. 1,2
MR JIGNESH R MODI(11359) for the Opponent(s)/Respondent(s) No. 2
MR NIMESH M PATEL(6780) 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 : 22/06/2021

                                   ORAL ORDER

1. Heard Mr.Uday Bhatt, the learned counsel appearing for the appellants, Ms. Krina Calla, learned APP for the respondent State and Mr.Nimesh Patel, learned counsel for respondent No.2.

2. 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 appellants have challenged the order dated 07.07.2020 passed in Criminal Misc. Application No.380 of 2020 by learned 2nd Additional Sessions Judge, Chhota-Udepur whereby, the application filed by the appellants 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.I-11184006200305 of 2020, registered at Kwant Police Station, Dist. Chhota-Udepur, for the offence punishable under Sections 504, 506(2) and 114 of the

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Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Atrocities Act, has been dismissed.

3. Learned counsel for the appellants has raised the following main contentions :-

(i) that the appellants are innocent and have been falsely implicated in the alleged offence;

(ii) that 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 for the applicability of the provisions of the Atrocities Act, and therefore, bar created by Sections 18 and 18-A of the Act would not be applicable;

(iii) that in the incident in question alleged to have been arisen at the private place;

(iv) that in the FIR, nowhere mentioned that the appellants herein were not a member of Scheduled Caste and Scheduled Tribe community;

(v) that the present FIR is nothing but a counter-blast of FIR lodged by the appellant No.1.

4. Under such circumstances, learned counsel appearing for the appellants has prayed to allow the appeal to extend the benefit of pre-arrest bail.

5. On the other side, Ms. Krina Calla, learned Addl. Public Prosecutor appearing on behalf of the respondent - State and Mr. Nimesh Patel, learned counsel appearing for respondent No.2 - informant have opposed this appeal and pray for its rejection by contending that, on the basis of the allegations and material placed on record,

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no case for grant of anticipatory bail is made out. They further submit that, Section 18-A of the Atrocities Act clearly bars to grant anticipatory bail and therefore, pray that the appeal may be dismissed.

6. Mr.Nimesh Patel, learned advocate reiterating the facts mentioned in the Affidavit-in-reply, contended that the appellants have intentionally abused and insulted the complainant in public place, therefore the provisions of Atrocities Act are attracted. Therefore, this Court may not entertain the present appeal.

7. 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.

8. 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.

9. 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

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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."

10.The case of the prosecution case is that on 20.06.2020, the informant and others were gathered for some discussions in Jain Temple of the village Baladgam, Taluka, Kwant, Dist. Chhota- Udepur. The appellant Akash Malik being an administrator of Dios Saatvik Food & Beverages Pvt. Ltd. came at the temple and was fully uncontrol state of mind, abused the informant with name of his caste and threatened that he would kill him and now henceforth should not enter in the temple premises. It is further case of the prosecution that during the incident, the appellant No.2 also came at the place and he also abused informant. Under such circumstance, the FIR came to be registered under the offences as referred to above.

11.This Court has considered the arguments advanced by learned counsel for the respective parties and perused the case papers. It appears from the record that the incident took place on 20.06.2020 at about 8.30 p.m. whereas the FIR came to be lodged on 24.06.2020. Prior to the FIR of informant, the appellant No.1 Akash Malik has lodged the FIR against the informant and other persons for the alleged incident under Section 323, 504, 506(2) and 114 of the Indian Penal Code. Under circumstances, it prima facie, appears that the present FIR is being filed as a counter-blast to the FIR lodged by the appellant No.1. This Court finds the contradictions with regard to place of occurrence. According to the FIR filed by the appellant, the informant and others were came at the place of Factory, whereas the allegations made by the

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informant that the incident was happened at the temple premises. Under such circumstances, when the custodial interrogation of the appellants are not found to be essential for the purpose of investigation, and have joined the investigation and not likely to abscond, the appeal deserves consideration and the appellants are entitled to pre-arrest bail.

12.In the result, present appeal is allowed and the impugned order dated 07.07.2020 passed in Criminal Misc. Application No.380 of 2020 by learned 2nd Additional Sessions Judge, Chhota-Udepur is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of their arrest in connection with the FIR being C.R.No.I-11184006200305 of 2020, registered at Kwant Police Station, Dist. Chhota-Udepur, on furnishing a bond of Rs.10,000/- each with surety of like amount on the following conditions that the appellants;

(a) shall cooperate with the investigation and make themselves 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

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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;

13.Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellants. The appellants 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 appellants, 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