Rajput Brijrajsinh Badansinh vs State Of Gujarat
2021 Latest Caselaw 7198 Guj

       R/CR.A/586/2021                                ORDER DATED: 29/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 586 of 2021
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                          RAJPUT BRIJRAJSINH BADANSINH
                                      Versus
                               STATE OF GUJARAT
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Appearance:
ANURAG R RATHOR(9315) for the Appellant(s) No. 1,2
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 : 29/06/2021

                                   ORAL ORDER

1. Though served, none appears for the respondent no.2.

2. Heard Mr. Anurag Rathor, the learned counsel appearing for the appellants and Ms. Krina Calla, learned APP for the respondent State.

3. 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 27.04.2021 passed in Criminal Misc. Application No.2947/2021 by learned In-charge Additional Sessions Judge, City Civil & Sessions Court No.19, Ahmedabad City, 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.11191037210275/2021, registered at Odhav Police Station, Dist. Ahmedabad City, for the offence punishable under Section 143, 147, 149, 337, 336, 323 and 294(b) of the Indian Penal Code and Section 3(1)(r) of the Atrocities Act, has been dismissed.

R/CR.A/586/2021 ORDER DATED: 29/06/2021

4. The brief facts of the prosecution case are that:

4.1 On 29.03.2021, a minor scuffle took place between the present appellant and one Mr. Amrutbhai at the place mentioned in the FIR. The informant received the information of the alleged dispute and the informant and his wife came at the place where they saw that heated conversation was going on between the appellants, witness Amrutbhai and other co-accused with respect to sitting of place at nearby pan shop, as a result of which, there was a free fight between the parties. Under the aforesaid background of facts, the FIR came to be lodged and at the end of investigation, charge-sheet has already been filed.

5. It is the submission of learned counsel appearing for the appellants that the appellants have been falsely implicated in the alleged crime. That present FIR has been filed as a counterblast as the complainant and his relatives assaulted the appellants and their family members for which the appellant no.1 had registered an FIR before Odhav Police Station for the offence punishable under Sections 143, 147, 149, 336, 337, 323 and 294(b) of the Indian Penal Code and it was filed prior to filing of the impugned FIR. That, on the bare perusal of the FIR, it appears that no offence under the provisions of the Atrocities Act has been made out and therefore, the appellants may be enlarged on bail.

6. 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

R/CR.A/586/2021 ORDER DATED: 29/06/2021

concerned and hence, bar created by Sections 18 and 18-A of the Act would not be applicable;

7. Under the circumstances, learned counsel Mr. Anurag Rathor appearing for the appellants prays that the appeal may be allowed and the appellants may be extended the benefit of pre-arrest bail.

8. On the other side, Ms. Krina Calla, learned APP appearing on behalf of the respondent - State has 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 and therefore, prays that the appeal may be dismissed.

9. 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.

10. 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.

11. In the case of Pruthvi Raj Chauhan Vs. Union of India & Ors,

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[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."

12. Considered the arguments advanced by learned counsels appearing for the respective parties and perused the case papers. A plain reading of the FIR shows that there was a free fight between the parties for which the cross FIR being registered against the informant also under Sections 143, 147, 149, 336, 337, 323 and 294(b) of the Indian Penal Code. The other co-accused named in the FIR have been enlarged on regular bail by the Court concerned. Prima-facie, it appears that the ingredients of Section 3(1)(r) of the Atrocities Act, 1989, seems to be missing as the informant nowhere in the complaint stated that the appellants were not members of the Scheduled Caste and Scheduled Tribe and they intentionally insulted the informant at the time of alleged offence. A close perusal of the FIR shows that the present appellants have not abused the informant with the name of his caste. Under such circumstances, this Court is inclined to extent the benefit of pre-arrest bail to the appellants.

13. In the result, present appeal is allowed and the impugned order dated 27.04.2021 passed in Criminal Misc. Application No.2947/2021 by learned In-charge Additional Sessions Judge, City Civil & Sessions Court No.19, Ahmedabad City, 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.11191037210275/2021, registered at Odhav Police Station, Dist. Ahmedabad City, on furnishing a bond of Rs.10,000/- each with surety of like amount on the following conditions

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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 08.07.2021 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 their addresses 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;

14. 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 learned Magistrate on the first date of hearing of such application and on all subsequent occasions,

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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. Direct service is permitted through e- mode.

(ILESH J. VORA,J) TAUSIF SAIYED