Pratapbhai Khodabhai Parmar vs State Of Gujarat
2022 Latest Caselaw 4363 Guj

    R/CR.A/1579/2021                                ORDER DATED: 25/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1579 of 2021

==========================================================
                        PRATAPBHAI KHODABHAI PARMAR
                                    Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
DUSHYANT M BHATT(7266) for the Appellant(s) No. 1,2,3
PRANAV U DHAGAT(9042) for the Appellant(s) No. 1,2,3
NOTICE SERVED BY DS for the Opponent(s)/Respondent(s) No. 2
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 25/04/2022

                                 ORAL ORDER

The appellants have filed Criminal Misc. Application No. 1083 of 2021 before the Court of learned Additional Sessions Judge, Kheda at Nadiad 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. 11204041211187 of 20221 with Mahemdavad Police Station, DistL Kheda for the offence punishable u/s. 323, 504, 506(2), 114 of Indian Penal Code and u/s. 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short "the Atrocity Act") wherein, the learned Additional Sessions Judge, Kheda at Nadiad has rejected the said application on 11.10.2021.

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

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

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

Learned advocate for the appellants has 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 appellant 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. That, the complaint had nothing to do with above said dispute and therefore there is no motive for the appellants to commit any alleged offence against the complainant which is stated in the FIR and therefore, it seems that the false and fabricated alelgations were levelled against the present appellants for the bet reasons known to the complainant. That, the original complainant is habitual to file such kind of complaints and on the basis thereof, the original complainant has received amount from the Government. Hence, it was requested by learned advocate for the appellants to enlarge the present appellants on anticipatory bail in the event of their arrest.

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

-State has opposed the prayer made by the appellants and

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

submitted that prima facie involvement of the appellants is established by the prosecution. Referring the contents of the complaint, learned APP has submitted that the appellants are involved in the serious offence as mentioned in the complaint and therefore, no liberty can be granted in favour of the appellants while releasing him on bail. 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.

Today, when the matter was called out, none was present for and on behalf of the respondent no.2 even if notice has been duly served to him as per report dated 19.03.2022 of the Additional District Judge, Kheda at Nadiad.

Having considered the facts of the case, police papers and submissions made by learned advocate for the appellants as well as learned APP for the respondent-State, it appears that the original complainant is habitual to file such kind of complaints against the various persons under the provisions of Atrocity Act as well as under the provisions of IPC It appears that the appellants have produced five copies of the different complaints filed against the different persons by the original complainant. It further appears from the statement of learned

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

advocate for the appellants that the original complainant- respondent no.2 has received about Rs. 1,90,000/- from the government fund and after settlement with the accused persons, has got further amount from the concerned accused persons.

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 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

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

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 within public view.

In this case, it appears from the contents of the complaint that the alleged offence was occurred on 25.08.2021 whereas the complaint was registered on 29.09.2021 means after a period of one month without any explanation, which creates doubt on the credibility of the complainant. It further appears that the allegations levelled in the FIR that the complainant and his friend Mr. Sanjaybhai Thakor went to the Milk Society of the appellant no.1, it is very important to note that the Milk

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

Society of the appellant is a private place and not a public place and therefore, it can be said that the offence is not committed at the public place nor in a public view. As per the submissions of the learned advocate for the appellants that appellant no.1 is a Sarpanch of Karoli Village and is an agriculturist. He was never in a business of private milk society and thus he has nothing to do with the private milk society. It further appears that the original complainant-respondent no.2 appears to be habitual to file such kind of false complaints under the provisions of the Atrocities Act against various persons implicating them in the offence, and therefore, prayer made by the appellants requires consideration.

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 11.10.2021 passed in Criminal Misc. Application No.1083 of 2021 by learned Additional Sessions Judge, Kheda at Nadiad 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 himself available for interrogation whenever

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

required;

(b) shall remain present at concerned Police Station on 02.05.2022 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 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

R/CR.A/1579/2021 ORDER DATED: 25/04/2022

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 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.

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