Dhruv Vijaybhai Chaudhary vs State Of Gujarat
2021 Latest Caselaw 7084 Guj

    R/CR.A/1035/2020                                    ORDER DATED: 28/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/CRIMINAL APPEAL NO. 1035 of 2020

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                         DHRUV VIJAYBHAI CHAUDHARY
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
MR DHRUV K DAVE(6928) for the Opponent(s)/Respondent(s) No. 2
MRS.KRINA CALLA APP for the Opponent(s)/Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                Date : 28/06/2021

                                     ORAL ORDER

1. Heard Mr.Manish Patel, the learned counsel appearing for the appellant, Ms. Krina Calla, learned APP for the respondent State and Mr.Dhruv Dave, 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 appellant has challenged the order dated 05.08.2020 passed in Criminal Misc. Application No.1317of 2020 by learned 11 th Sessions Judge (Special Judge, Atrocity Cases), Vadodara 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.11196017200844 of 2020, registered at Panigate Police

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Station, Dist. Vadodara, for the offence punishable under Sections 324, 294(b), 506(2) of the Indian Penal Code, Section 135 of the G.P.Act and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Atrocities Act, has been dismissed.

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

(i) that the appellant is innocent and has 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 the complaint has been lodged after two days from the day of incident;

(v) that the parties have settled their disputes amicably outside the Court.

4. Under such circumstances, learned counsel appearing for the appellant 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 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

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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.

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."

R/CR.A/1035/2020 ORDER DATED: 28/06/2021

9. It is reported that the parties have amicably settled the disputes. The affidavit of original complainant - respondent No.2 has been placed on record, inter alia, stating that after intervention of close relatives, they have settled the matter.

10. In view of the facts of the settlement between the parties, and circumstances under which the alleged incident to have been arisen and in absence of past antecedent of like nature, and when the appellant has joined the investigation and not likely to abscond, without expressing any opinion on the merits of the case, the appeal deserves consideration and the appellant is entitled to pre-arrest bail.

11. In the result, present appeal is allowed and the impugned order dated 05.08.2020 passed in Criminal Misc. Application No.1317of 2020 by learned 11 th Sessions Judge (Special Judge, Atrocity Cases), Vadodara, 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.11196017200844 of 2020, registered at Panigate Police Station, Dist. Vadodara, 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

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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 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;

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,

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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) Manoj