Ashokbhai Somabhai Parmar vs State Of Gujarat
2021 Latest Caselaw 15000 Guj

    R/CR.A/344/2020                        JUDGMENT DATED: 24/09/2021




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


               R/CRIMINAL APPEAL NO. 344 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

======================================

1    Whether Reporters of Local Papers may be                   NO
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                    NO

3    Whether their Lordships wish to see the fair               NO
     copy of the judgment ?

4    Whether this case involves a substantial                   NO
     question of law as to the interpretation of the
     Constitution of India or any order made
     thereunder ?


======================================
              ASHOKBHAI SOMABHAI PARMAR
                          Versus
                   STATE OF GUJARAT
======================================
Appearance:
BHARATKUMAR K VIZODA(8026) for the Appellant(s) No. 1
MR AMRITLAL N VINZODA(10274) for the Appellant(s) No. 1
MAYANK R CHAVDA(9250) for the Opponent(s)/Respondent(s)
No. 2,3
MR MUKESH C KAMDAR(10700) for the
Opponent(s)/Respondent(s) No. 2,3
MS CM SHAH, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Opponent(s)/Respondent(s) No. 1
======================================

CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI


                             Page 1 of 9

                                                Downloaded on : Sun Jan 16 18:18:36 IST 2022
       R/CR.A/344/2020                                 JUDGMENT DATED: 24/09/2021




                              Date : 24/09/2021

                               ORAL JUDGMENT

1.0 This Appeal is filed by the appellant - original first informant under Section 14 A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') challenging the order passed by the learned 3rd Additional Sessions Judge, Junagadh dated 12.12.2021 passed in Criminal Miscellaneous Application No.855 of 2019 whereby respondent nos.2 and 3 herein - original accused have been granted an order in the nature of anticipatory bail.

2.0 According to the case of the prosecution, respondent nos.2 and 3 - present accused, who are father and son, have outraged the modesty of two minor victims aged less than 16 years as also committed an offence under Sections 376, 376(3)(b), 354 A, 354 B, 452 and 114 of the Indian Penal Code, Sections 6, 8, 11(1) and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO') as also for an offence under Sections 3(1)(r), 3(1)(s), 3(1)(w) and 3(2)(v) of 'the Act'.

2.1 The act of both the respondents - original accused have been narrated in detail in the FIR, and therefore, no detail reference thereof is mentioned in this order so as to avoid any outrageous conduct being exposed in this order.

2.2 Apprehending their arrest, respondent nos.2 and 3 - original accused preferred an application in the Court of

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

learned 3rd Additional Sessions Judge, Junagadh by way of Criminal Miscellaneous Application No.855 of 2019 under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). The learned Judge, after hearing the learned advocate for respondent nos.2 and 3

- original accused as also the learned Additional Public Prosecutor and the first informant, who were present during the course of hearing before him on 12.12.2019 vide order impugned granted anticipatory bail to respondent nos.2 and 3

- accused. The said order is under challenge before this Court on the grounds mentioned in the memo of Appeal.

3.0 Mr.B.K. Vizoda, learned advocate for the appellant, submitted that though Section 438 of 'the Code' would not apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under 'the Act', without adverting to the specific bar in entertaining the application for an order of anticipatory bail, the learned Judge, went on determining it as if he is appreciating evidence, as if full fledged trial is going on, for granting an order of anticipatory bail to such respondents - accused. He has further submitted that the learned Judge has not considered whether any prima facie offence under 'the Act' is made out or not so as to entitle them for an order of anticipatory bail. He has further submitted that he has not at all adverted to the issue or he is not alive to the provisions of Section 18 of 'the Act', which specifically bars invoking the provisions of Section 438 of 'the Code' where respondent nos.2 and 3 - original accused are facing accusation for an offence under 'the Act', and therefore, he has requested that the order of anticipatory bail de hors the provisions granted, be cancelled and

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

respondent nos.2 and 3 - original accused be directed to be taken into custody immediately.

4.0 As against that, Mr. Mayank Chavda, learned advocate for respondent nos.2 and 3 - original accused, vehemently submitted that the learned Judge has considered the allegations made in the FIR and after being satisfied that the case put forth by the appellant - first informant is not believable at all, when granted anticipatory bail, it shall not be cancelled. He has further submitted that considering the reasons assigned by the learned Judge, while granting anticipatory bail, it is observed that the case put forth is not believable at all so far as videography of the so called act is concerned, and therefore, the learned Judge is justified in granting an order of anticipatory bail. He has further submitted that since respondent nos.2 and 3 - original accused are witness to a case of murder where the son of the first informant is an accused, to bring pressure on them, such a false case has come to be filed against them. Therefore, the learned Judge, according to his submission, is justified in granting anticipatory bail to respondent nos.2 and 3 - original accused.

4.1 He has relied on the decision of the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra reported in AIR 2018 SC 1498, decision of this Court in the case of Zarinabibi Bhurekhan @ Akramkhan Pathan Vs. State of Gujarat rendered in Criminal Appeal No.27 of 2021 dated 21.06.2021, more particularly, paragraph nos.5 to 7 wherein three decisions of the Supreme Court are relied on including the aforesaid

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

decision, for grant of anticipatory bail.

4.2 The case of Dolatram and Others Vs. State of Haryana reported in (1995) 1 SCC 349 is relied on to submit that rejection of bail in a non-bailable offence and cancellation of bail already granted must be considered and dealt with on different basis. Relying on the said decision, he has submitted that since the learned Judge has after appreciation of material on record, including the FIR, has granted an order of anticipatory bail, and therefore, it must not be cancelled.

4.3 He has further relied on a decision of this Court rendered by the coordinate Bench of this Court in the case of Vikrambhai Amrabhai Malivad Vs. State of Gujarat dated 05.10.2020 in Criminal Miscellaneous Application No.11014 of 2020 and submitted that an application under Section 439 of 'the Code' in a case involving an offence under 'the POCSO' and 'the Act' is maintainable. The application for cancellation of an order has to be by way of Section 439(2) of 'the Code' and not by way of Appeal, and therefore, he has submitted that this Appeal is not maintainable.

4.4 This order granting anticipatory bail is exhausted as pursuant to it respondent nos.2 and 3 - original accused have been arrested and released on bail by the Investigating Officer. On the basis of the aforesaid submission, Mr. Chavda, learned advocate has submitted that the Appeal be dismissed.

5.0 Ms. C.M. Shah, learned Additional Public Prosecutor, submitted that since the learned Judge while granting anticipatory bail has not considered the bar under Section 18

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

of 'the Act', such an order cannot sustain and has to be quashed. She has further submitted that the learned Judge has appreciated the material as if evidence is led before the Court, and therefore, the order passed ignoring the bar under Section 18 of 'the Act' has to be quashed.

6.0 Considering the aforesaid submission made by the learned advocates for the appearing parties, one thing is certain that the learned Judge has appreciated the material contained in the FIR as also the papers at the relevant time as if he has concluded the trial. As such, no threadbare analysis of material is permissible, that too, while determining an application praying for an order of anticipatory bail. As such, only on that ground the order passed by the learned 3 rd Additional Sessions Judge, Junagadh is required to be quashed and set aside.

6.1 Not only that, the learned Judge appears to be not alive to a specific bar contained in Section 18 of 'the Act', which prohibits exercise of powers under Section 438 of 'the Code' when the person is facing an accusation under 'the Act'. Reading the whole order, no where he has stated that prima facie no offence under 'the Act' is made out so as to entertain the application for anticipatory bail.

6.2 Considering the decisions relied on by the learned advocate Mr. Chavda, in the case of Dr. Subhash Kashinath Mahajan (Supra), there has to be some conclusion that their exists no prima facie case under 'the Act' before adverting to examine the merit of the case to grant an order of anticipatory bail.

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

6.3 The assertion made in the FIR is enough to conclude attracting the provisions of Section 3(1)(w), 3(2)(v) of 'the Act' as also Section 3(2)(v-a) of 'the Act', (though not invoked by the Investigating Agency), prima facie offence under 'the Act' still exists, which prohibits exercise of jurisdiction under Section 438 of 'the Code' as it is prohibited under Section 18 of 'the Act'.

6.4 The contention that factors for grant of bail in non- bailable offence and cancellation of bail are different, which is a well known principle, however, when an order of anticipatory bail is granted to an accused, against whom accusation of offence under 'the Act' is made, which is prohibited, in such circumstances, the factors, as aforesaid and reliance placed on the decision in the case of Dolatram and Others (Supra), is of no help to respondent nos.2 and 3 - original accused.

6.5 As such, the impugned order passed by the learned Judge granting anticipatory bail to respondent nos.2 and 3 - original accused, in absence of even conclusion that no prima facie case under 'the Act' exists is without jurisdiction, and therefore, there is no option but to quash and set aside that decision cancelling anticipatory bail granted to respondent nos.2 and 3 - original accused.

6.6 So far as contention with regard to maintainability of Appeal praying for cancellation of bail by way of Criminal Appeal under Section 439(2) of 'the Code' is also required to be rejected outright.

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

6.7 As such, reliance placed on the decision in the case of Vikrambhai Amrabhai Malivad (Supra) is of no help to respondent no.2 and 3 - original accused as whatever may be the nomenclature of a case, once it is found that order itself is without jurisdiction whether it is challenged by way of Appeal or Criminal Miscellaneous Application it makes no difference. At the same time, as mentioned in Section 14 A of 'the Act', an appeal shall lie from any jugdment, sentence or order of a special Court. Even if it is to be concluded that it can be challenged by way of Miscellaneous Criminal Application under Section 439 of 'the Code', once the order is found to be erroneous as being without jurisdiction, it can be quashed by the High Court even exercising jurisdiction under Section 14 A of 'the Act' in an Appeal, and therefore, the said submission is also without any merit. Since the order of the learned Judge granting anticipatory bail to respondent nos.2 and 3 - original accused is on examination of material, like deciding trial without adverting to the maintainability of such proceedings, in view of a clear bar under Section 18 of 'the Act', more particularly, when the learned Judge was not alive to it, it is required to be interfered with.

7.0 Thus, the order passed by the learned 3rd Additional Sessions Judge, Junagadh dated 12.12.2021 in Criminal Miscellaneous Application No.855 of 2019 granting anticipatory bail to respondent nos.2 and 3 - original accused, though it is exhausted is hereby quashed and set aside. Respondent nos.2 and 3 - original accused are directed to surrender to the custody within a period of four weeks from today. Bail bonds shall stand cancelled. If, respondent nos.2 and 3 - original accused fail to surrender to the custody, the

R/CR.A/344/2020 JUDGMENT DATED: 24/09/2021

learned trial Judge shall issue non-bailable warrant against them.

8.0 In view thereof, the present Criminal Appeal stands allowed.

(UMESH A. TRIVEDI, J.)

siji