Vikrambhai Sardarbhai Vanzara vs State Of Gujarat
2022 Latest Caselaw 3946 Guj

    R/CR.A/299/2022                                ORDER DATED: 04/04/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 299 of 2022

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                      VIKRAMBHAI SARDARBHAI VANZARA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DHARMESH R PATEL(5592) for the Appellant(s) No. 1,2,3
MR PIYUSH TRIVEDI FOR MR TEJAS D SHUKLA(5312) for the
Opponent(s)/Respondent(s) No. 2
MS MH BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 04/04/2022

                                ORAL ORDER

The appellants have filed Criminal Misc. Application No. 48of 2022 before the Court of learned Incharge Additional Sessions Judge, Aravalli-Modasa u/s 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellants on anticipatory bail in the event of their arrest on account of offence being registered vide C.R. No. 11188003210464 of 2021 with Bhiloda Police Station, Dist: Aravalli for the offence punishable u/s. 323, 504, 506(2) and 114 of the Indian Penal Code and u/s. 3(2(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short "the Atrocity Act"), the learned Incharge Additional Sessions Judge, Aravalli-Modasa has rejected the said application on 27.01.2022.

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Feeling aggrieved by the said order, the appellants preferred said appeal u/s 14-A(2) of the Atrocity Act.

Heard learned advocate for the appellants; learned advocate for the respondent no.2 and learned APP for the respondent No.1-State.

Learned advocate for the appellants have submitted that the appellants are innocent persons and wrongly involved in the present crime in question. That, there is no direct or indirect role attributed to the present appellants. That, the appellants have nothing to do with the present crime in question, and their names have wrongly been dragged with a view to achieve the goal of the respondent No.2. The allegations against the appellants cannot be said to have been substantiated in as much as there is no sufficient material found against the present appellants. That, the learned Judge has failed to appreciate the fact that the appellants are innocent and they have been falsely implicated in the alleged offence. That, looking to the allegations levelled in the FIR, prima facie, no ingredients of any offence much less the offence under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and offence under Atrocity Act are attracted. Hence, it was requested by learned advocate for the appellants to enlarge the present appellants on anticipatory bail in the event of their arrest.

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From the other side, learned APP for the respondent No.1

-State and learned advocate for the respondent no.2 have opposed the prayer made by the appellants and submitted that prima facie involvement of the appellants is established by the prosecution. That, using abusive language and derogatory words against the complainant, offence was clearly made out by the appellants. It was further submitted that Section 8 restricts to grant anticipatory bail to the appellants. Hence, it was requested by learned APP for the respondent No.1- State to dismiss present appeal.

Having considered the facts of the case, police papers and submissions made by learned advocate for the appellants; learned advocate for the respondent no.2 as well as learned APP for the respondent No.1-State, it appears that offence being registered vide C.R. No. 11188003210464 of 2021 with Bhiloda Police Station, Dist: Aravalli for the offence punishable u/s. 323, 504, 506(2) and 114 of the Indian Penal Code and u/s. 3(2)(va) of the Atrocity Act. There is no averments made to attracts Section 3(2)(va) of the Atricity Act. From the injury certificate issued on the name of Satishkumar Jagdishkumar Tabiyar produced on record, it appears that injury on left side CLW over left eye and treatment thereof was given to him. No name of any of the accused was given in the history by the injured to the doctor. No specific allegations are

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made in the complaint to attract the provisions of Atrocity Act. Considering the role allegedly made in the complaint by the respondent no.2, it appears that there is no serious injury caused to the complainant.

Section 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under:

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;

If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan Vs. State of Maharashtra reported in 2018(6) SCC 454, wherein the Hon'ble Supreme Court has held that there is no absolute bar against 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. View taken by the High Court of Gujarat in the case of Pankaj D. Suthar (supra) and Dr.N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the

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complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(2) (5)(a), 3(g), 3(p), 3(r), 3(s)(z)(c) & u/s. 8 of the Atrocity Act.

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. This Court has made scrutiny of the complaint and prima facie, it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint.

In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme Court Cases 531, it was held that according to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe, he was was intentionally insulted or intimidated by the accused with intent to humiliate in a place

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within public view.

Therefore, considering the decision rendered in the aforesaid citations, present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 27.01.2022 passed in Criminal Misc. Application No. 48 of 2022 by learned Incharge Additional Sessions Judge, Aravalli-Modasa is hereby quashed and set aside.

The appellants are ordered to be enlarged on bail in the event of their arrest 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 11.04.2022 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 him 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

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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 Trial Court and if having passport shall deposit the same before the Trial Court within a week; and

(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 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, 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.

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At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail.

Direct service is permitted.

(B.N. KARIA, J) K. S. DARJI