Hasmitaba Gulabsinh Jadeja vs State Of Gujarat
2021 Latest Caselaw 6856 Guj

     R/CR.A/367/2021                                ORDER DATED: 24/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 367 of 2021

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                         HASMITABA GULABSINH JADEJA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN 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 : 24/06/2021

                                 ORAL ORDER

1. Heard Mr. Mehul Sharad Shah, the learned counsel appearing for the appellant, Ms. Krina Calla, learned APP for the respondent State and Mr. Mahesh Purohit, learned counsel appearing 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 26.02.2021 passed in Criminal Misc. Application No.63/2021 by learned 7 th Additional Sessions & Special Judge (Atrocity), Anjar, District: Kutchh, 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.11993003210143/2021, registered at Anjar Police Station, Dist. Kutchh, for the offence

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punishable under Section 506(2) of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Atrocities Act, has been dismissed.

3. The brief facts of the prosecution case are that: 3.1 The informant Sunandaben Pawar has lodged an FIR under Section 506(2) of the Indian Penal Code and under the provisions of Atrocities Act as referred above. It is alleged that on 15.02.2021 , the informant along with her husband and one Shirishbhai came at Village: Meghpar, Taluka: Anjar to meet Gulabsinh Jadeja as during 2012 to 2016, they have entered into sale transaction of eight trucks and later on it found that there was an outstanding loan of the finance company for which Gulabsinh Jadeja did not responded. It is the case of prosecution that the informant and others reached at the house of Gulabsinh and knocked the door and after some time, the appellant - wife of Gulabsinh has opened the door and upon inquiry made by the informant for Gulabsinh, the appellant told that her husband is not at home and while asking for mobile number of her husband, the appellant abused the informant with name of her caste and threatened that her husband would not leave Gandhidham. Under such circumstances, the alleged FIR came to be lodged under the provisions of the Indian Penal Code and the provisions of the Atrocities Act as referred to above.

4. It is the submission of learned counsel appearing for the appellant that no prima-facie offence under the provisions of Atrocities Act being made out as there is no intentional insult or intimidation as alleged by the informant at the place within public view. That the

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appellant is not known to the appellant and her name is not disclosed in the FIR. That the appellant has nothing to do with the business of her husband and therefore, question does not arise to abuse the informant. That during the period of 2012 to 2016 eight trucks which were purchased by the informant and her husband, there was outstanding loan of the finance company for which the dispute arose between the parties. That for alleged transaction of trucks the husband of the informant has lodged one FIR against the husband of the appellant. That the present proceeding is nothing but misuse of process of law. 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;

5. In view of the aforesaid contentions, learned counsel Mr. Mehul Sharad Shah appearing for the appellant prays that the appeal may be allowed and the appellant may be extended the benefit of pre- arrest bail.

6. On the other side, Ms. Krina Calla, learned APP appearing on behalf of the respondent - State and Mr. Mahesh Purohit, learned counsel appearing for the respondent no.2 have opposed this appeal and prayed 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. It is further submitted that, Section 18-A of the Atrocities Act clearly bars to grant anticipatory bail

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and therefore, prays that the appeal may be dismissed.

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 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. Considered the submissions made on behalf of learned counsels appearing for the respective parties and perused the case papers. A plain reading of the FIR shows that the informant and the appellant herein were unknown to each other before the alleged incident.

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Admittedly, the dispute is going on so far outstanding amount of loan is concerned with respect to purchase of trucks. The record indicates that for the alleged breach of non-payment of outstanding loan amount, the present informant herein has lodged an FIR under Sections 406 and 420 of the Indian Penal Code before "B" Division Gandhidham Police Station against Gulabsinh Jadeja. After close scrutiny of the contents of the present FIR, it appears that the allegation with regard to abuse with the name of caste being alleged to have uttered at the house of the appellant at Village: Meghpar. According to the basic ingredients of Section 3(1)(x) of the Act of 1989, it is mandatory on the part of the informant to allege that the appellant-accused is not a member of Scheduled Caste and Scheduled Tribe and she was intentionally insulted by the accused with intent to humiliate in place within public view. In the instant case, if we peruse the entire complaint, nowhere it is mentioned that the appellant is not a member of Scheduled Caste and Scheduled Tribe and she intentionally abused with the name of her caste in a place within public view. Therefore, considering the place of offence and the dispute with respect to outstanding loan of the vehicle, this Court is of the considered view that the appeal deserves consideration. The appellant has co-operated with the investigation and her custodial interrogation is not found to be essential and she is not likely to abscond. Under such circumstances, this Court is inclined to extent the benefit of pre- arrest bail to the appellant.

11.In the result, present appeal is allowed and the impugned order dated 26.02.2021 passed in Criminal Misc. Application No.63/2021 by learned 7th Additional Sessions & Special Judge

R/CR.A/367/2021 ORDER DATED: 24/06/2021

(Atrocity), Anjar, District: Kutchh, 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.11993003210143/2021, registered at Anjar Police Station, Dist. Kutchh, 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 05.07.2021 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 application for remand if he considers it proper and just and the

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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. Direct service is permitted through e- mode.

(ILESH J. VORA,J) TAUSIF SAIYED