Idu @ Idrish Iqbalkhan Pathan vs State Of Gujarat
2021 Latest Caselaw 6745 Guj

    R/CR.A/797/2020                              ORDER DATED: 23/06/2021



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/CRIMINAL APPEAL NO. 797 of 2020
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                      IDU @ IDRISH IQBALKHAN PATHAN
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. NITESH G JAIN(7178) 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 : 23/06/2021

                               ORAL ORDER

1. Heard Mr. Nitesh Jain, The learned counsel appearing for the appellant 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 appellant has challenged the order dated 01.07.2020 passed in Criminal Misc. Application No.3070/2020 by learned 10 th Additional Sessions Judge, Surat, 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.11210055200878/2020, registered at Salabatpura Police Station, Dist. Surat (Rural), for the offence punishable under Sections 323, 504, 506(2) and 114 of Indian Penal Code, 1860 and Sections 3(1)(r)(s), 3(2), 3(2v) of the Atrocities Act, has been dismissed.

3. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in the

R/CR.A/797/2020 ORDER DATED: 23/06/2021

alleged offence; that the ingredients of the alleged offences are not satisfied; that the cross complaint for the alleged incident being reported by the appellant and thereafter, as a counter blast, present FIR is being filed; that the co-accused have been released on regular bail by the competent Court and 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.

In view of the above contentions, learned counsel for the appellant prays to grant anticipatory bail to the appellant in the event of his arrest.

4. 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 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.

5. 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.

6. In the case of Union of India Vs. State of Maharashtra in Review Petition (Cri.) No.228 of 2018 in Criminal Appeal

R/CR.A/797/2020 ORDER DATED: 23/06/2021

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.

7. 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."

8. The brief facts of the prosecution case are that, before the alleged incident, there was petty issue arisen between the accused Javed Pathan and the informant. Thereafter, the accused Javed and his brother, present appellant and co- accused Rahim came at the place and had caused voluntary injuries and abused the informant with the name of his caste as he belongs to the SC/ST category. Under such circumstances, FIR came to be registered for the abovementioned offences. Therefore, the appellant had preferred anticipatory bail before the concerned Sessions Court, which came to be rejected by the order dated 01.07.2020.

9. Being aggrieved by and dissatisfied with the order of learned Sessions Court, the appellant has preferred this appeal.

10. This Court has considered the arguments advanced by learned counsel for the respective parties and perused the case papers. Record indicates that the present appellant Idu @ Idrish Pathan

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has not uttered a single word so far as the caste of the complainant is concerned. It is pertinent to note that cross Complaint for the alleged incident being reported with the same police station. Under such circumstance, when no recovery is required to be effected and the appellant has no any criminal past antecedent, his custodial interrogation is not found to be essential for the purpose of investigation. As a result, without entering into the merits of the case, this Court is inclined to grant the benefit of pre-arrest bail to the appellant. Thus, present appeal deserves consideration.

11. In the result, present appeal is allowed and the impugned order dated 01.07.2020 passed in Criminal Misc. Application No.3070/2020 by learned 10th Additional Sessions Judge, Surat, 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.11210055200878/2020, registered at Salabatpura Police Station, Dist. Surat (Rural), 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 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





     R/CR.A/797/2020                                    ORDER DATED: 23/06/2021



               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;

12. 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)

SUCHIT