Natwarbhai Bharthibhai Bariya vs The State Of Guajrat
2021 Latest Caselaw 6738 Guj

    R/CR.A/242/2021                                     ORDER DATED: 23/06/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/CRIMINAL APPEAL NO. 242 of 2021

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                      NATWARBHAI BHARTHIBHAI BARIYA
                                  Versus
                          THE STATE OF GUAJRAT
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Appearance:
MS.NIDHI P BAROT(6675) for the Appellant(s) No. 1,2
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 : 23/06/2021

                              ORAL ORDER

1. Heard Ms. Nidhi Barot, the learned counsel appearing for the appellants and Ms. Krina Calla, learned APP for the respondent State. Though served, none appears for the 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 10.12.2020 passed in Criminal Misc. Application No.882/2020 by learned 5 th Additional Sessions Judge, Panchmahals at Godhara, 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.11207076200645/2020, registered at Godhara 'A' Division Police Station, Dist. Panchmahals, for the offence punishable under Sections 323, 504 and 114 of Indian Penal Code, 1860 and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Atrocities Act, has been dismissed.

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

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

(ii) 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) The incident has been taken in the office of Society and therefore, the provisions of the Atrocities Act are not applicable;

(iv) That, the main cause for filing the FIR is that, the appellants are the Secretary and Chairman of Milk Producer's Society where the complainant was working and entrusted the work of measuring the milk fat and due to some irregularities, the complainant was removed from the services. Therefore, the complainant threatened the appellants to take him back in the services and upon refusal of the same, FIR came to be registered after a period of three days. Thus, considering the role attributable to the present appellants, they have been falsely implicated in the alleged offence.

4. In view of the above contentions, learned counsel for the appellants prays to grant anticipatory bail to the appellants in the event of their arrest.

5. On the other side, Ms. Krina Calla, learned Addl. Public Prosecutor appearing on behalf of the respondent - State has opposed this appeal and prays for its rejection by contending that, on the basis of the allegations and material placed on

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record, 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, 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 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. The brief facts of the prosecution case are that, on 19.11.2020, at about 11:11 hours in the morning, a meeting was held at the Bhalaniya Dudh Utpadak Sahakari Mandali Ltd., and the complainant was asked to remain present in the said meeting

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by the appellants being Secretary and Chairman of the Mandali. But, as the mother of the complainant was sick, he could not remain present in the meeting. Then, at about 5:30 hours in the evening, when the complainant went to the Mandali, the appellants told him that he was removed from the services and gave filthy abuses with an intent to humiliate the complainant being a member of scheduled castes and scheduled Tribes. In this background of the facts, FIR came to be registered against the appellants. The appellants had preferred anticipatory bail before the concerned Sessions Court, which came to be rejected vide order dated 10.12.2020.

10. Being aggrieved by and dissatisfied with the order of learned Sessions Court, the appellants have preferred this appeal.

11. This Court has considered the arguments advanced by learned counsel for the respective parties and perused the case papers. It appears that earlier, the informant was working with the Milk Producer's Society, but to alleged misdeeds, he has been removed by the office bearers of the Society. Under such circumstances, it prima facie appears that, the informant being aggrieved by the decision of the appellant and being a member of the Scheduled Caste and Scheduled Tribes has reported the complaint against the officer bearers. Taking note of the place of the incident and in absence of any past antecedent of like nature and their joining in the investigation, custodial interrogation of the appellants is not found to be essential. As a result, this Court is inclined to grant the benefit of pre-arrest bail. Thus, present appeal deserves consideration.

12. In the result, present appeal is allowed and the impugned order dated 10.12.2020 passed in Criminal Misc. Application No.882/2020 by learned 5th Additional Sessions Judge,

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Panchmahals at Godhara, 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.11207076200645/2020, registered at Godhara 'A' Division Police Station, Dist. Panchmahals, 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 03.07.2021 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 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

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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)

SUCHIT