Janakben Vipulbhai Dangar vs State Of Gujarat
2021 Latest Caselaw 6749 Guj

    R/CR.A/1136/2020                                  ORDER DATED: 23/06/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CRIMINAL APPEAL NO. 1136 of 2020

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                        JANAKBEN VIPULBHAI DANGAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR RUSHABH R SHAH(5314) for the Appellant(s) No. 1
MS KRINA CALLA, APP (2) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED BY DS(65) 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. Rushabh R. Shah, 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 12.02.2020 passed in Criminal Misc. Application No.86/2020 by learned 11 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 her arrest in connection with the FIR being C.R.No.11214023200060/2020, registered at Kadodara GIDC Police Station, Dist. Surat (Rural), for the offence punishable under Sections 143, 147, 323, 504, 506(2) of Indian Penal Code, 1860 and Sections 3(1)(r)(s)(z), 3(2) and 5A of the Atrocities Act, has been dismissed.

R/CR.A/1136/2020 ORDER DATED: 23/06/2021

3. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in the alleged offence and no such incident as alleged in the Fir has taken place; 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; that the complainant and her family members are engaged in the illegal activities of prohibited liquor and since they are members of the same vicinity, local residents are against the informant and have made representation to the concerned authority; that the co-accused whose role is identical to the present appellant has been extended the benefit of anticipatory bail and that the appellant has no past antecedent of like nature and has cooperated with the investigation.

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

R/CR.A/1136/2020 ORDER DATED: 23/06/2021

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 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, on the date of incident, the appellant and co-accused threatened the informant for evicting the place where the informant was renovating her house. As a result, the appellant and her family members came at the place and caused voluntary injuries and abused the informant with the name of her caste as she belongs to the SC/ST category. Under such circumstances, FIR came to be registered for the abovementioned offence. Therefore, the appellant had preferred anticipatory bail before the concerned Sessions Court, which came to be rejected by the order dated 12.02.2020.

R/CR.A/1136/2020 ORDER DATED: 23/06/2021

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 co-accused Jayeshkumar Dungar and Chhayaben Jayeshkumar Dungar whose roles are similar to the role of the present appellant, were extended the benefit of anticipatory bail by a Coordinate Bench of this Court vide orders dated 27.07.2020 and 12.10.2020 respectively. Therefore, 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 12.02.2020 passed in Criminal Misc. Application No.86/2020 by learned 11th Additional Sessions Judge, Surat, is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of her arrest in connection with the FIR being C.R.No.11214023200060/2020, registered at Kadodara GIDC Police Station, Dist. Surat (Rural), on furnishing a bond of Rs.10,000/- each 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





     R/CR.A/1136/2020                                   ORDER DATED: 23/06/2021

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 her 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