Kamlesh Nathala Kalani vs State Of Gujarat
2021 Latest Caselaw 7199 Guj

    R/CR.A/783/2021                                      ORDER DATED: 29/06/2021



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL APPEAL NO. 783 of 2021
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                    KAMLESH NATHALA KALANI
                              Versus
                       STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Appellant(s) No. 1
MS KRINA CALLA, APP (2) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STN 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. Heard Mr. Vicky Mehta, the learned counsel appearing for the appellant and Ms. Krina Calla, learned APP for the respondent State. Though served, none appears 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 24.05.2021 passed in Criminal Misc. Application No.633/2021 by learned 5th Additional Sessions Judge, Anand, 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.11215040210145/2021, registered at Bhalej Police Station, Dist. Anand, for the offence punishable under Sections 323, 504, 506(2) of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Atrocities Act,

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has been dismissed.

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

(i) The appellant is innocent and has been falsely implicated in the alleged offence;

(ii) No offence under the Atrocities Act is prima facie made out against the appellant;

(iii) That, in the complaint, nowhere it is mentioned that the appellant was not a member of SC/ST category and he intentionally insulted with an intention to humiliate the informant in a place within public view;

(iv) That, before the incident, the appellant has initiated the criminal proceedings under the provisions of the Negotiable Instruments Act against the informant, wherein, the Court has directed the informant to deposit 20 % of the cheque amount for which the informant failed to deposit the same ;

(v) That, on the day of incident, the appellant was admitted in hospital for treatment of post covid complication and therefore, the allegations alleged in the FIR are prima facie incorrect and presence of the appellant at the place of incident seems to be doubtful;

(vi) That, the present FIR is filed to pressurize the appellant so as to arrive at settlement in the case filed under the provisions of Section 138 of the N.I.Act.

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(vii) 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;

4. 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.

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, under the Atrocities Act, there is no provision for granting anticipatory bail, therefore, considering the facts and circumstances of the case and on account of restriction in grant of anticipatory bail under the Act, 1989, the appeal may not be entertained.

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

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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."

9. The brief facts of the prosecution case are that, on 11.05.2021, at 06:30 P.M, when the informant was sitting at the Bus Stand of village Jakhala, the appellant came at the place and demanded his money, which was lent to the informant and thrashed him and abused with the name of his caste and also threatened to kill him. In this background of the facts, FIR came to be registered against the appellant. The appellant had preferred anticipatory bail before the concerned Sessions Court, which came to be rejected vide order dated 24.05.2021.

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

11. This Court has considered the rival submissions advanced

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by learned counsel for the respective parties and perused the case papers. A plain reading of the FIR shows that, at about 06:30 P.M on 11.05.2021, the incident was happened at Bus Stand of village Jakhala. From the medical case papers placed on record by the appellant, it is evident that, the appellant was admitted in a private hospital for the treatment of post covid infection as he was having breathing problem and could not walk properly also. It further appears that, the appellant Kalani Kamlesh Nathalal has lodged the complaint against the informant Babu Rohit under the provisions of the Negotiable Instruments Act, wherein, on 16.06.2020, process has been issued and on 05.04.2021, the trial Court has directed the informant to deposit 20 % of the cheque amount under Section 143A of the Act. Under such circumstances, prima facie it appears that before the incident, financial dispute was going on and on the date of alleged incident, the appellant was in serious condition as he was suffering from post covid complication and was unable to breath properly. It also appears that, the ingredients of Section 3(1)(r) and 3(1)(s) of the Atrocities Act, having not been disclosed by the informant to the fact that the appellant was not a member of SC/ST category and he had voluntarily insulted in the place with a public view. Therefore, without expressing anything on merits of the case, this Court is of the considered view that the appeal deserves consideration.

12. In the result, present appeal is allowed and the impugned order dated 24.05.2021 passed in Criminal Misc. Application No.633/2021 by learned 5 th Additional

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Sessions Judge, Anand, 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.11215040210145/2021, registered at Bhalej Police Station, Dist. Anand, on furnishing a bond of Rs.10,000/- each with surety of like amount on the following conditions 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 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 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;

Despite this order, it would be open for the Investigating Agency

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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 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.

(ILESH J. VORA,J)

SUCHIT