Gujarat High Court

Kanubhai Ramanbhai Prajapati vs State Of Gujarat on 27 April, 2022

Bench: B.N. Karia

     R/CR.A/601/2022                                ORDER DATED: 27/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 601 of 2022

==========================================================
                        KANUBHAI RAMANBHAI PRAJAPATI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR UM SHASTRI(830) for the Appellant(s) No. 1
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 27/04/2022

                                 ORAL ORDER

1. Learned APP has produced the report dated 25.04.2022 of

Deputy Superintendent of Police, S.C/S.T. Cell, Dahod addressing to

the Government Pleader, Gujarat High Court, which is taken on

record.

2. Present appellant filed Criminal Misc. Application No. 32 of

2022 before the Court of learned 3rd Additional Sessions and Special

Judge, Limkheda at Dahod u/s. 438 of the Code of Criminal

Procedure, 1973 requesting to enlarge the appellant on anticipatory

bail in the event of his arrest in connection with the FIR being

registered vide C.R. No.11821035220022 of 2022 with Limkheda

Police Station, Dist-Dahod for the offence punishable u/s. 504,

R/CR.A/601/2022 ORDER DATED: 27/04/2022

506(2) and 114 of Indian Penal Code and Sections 3(1)(r), 3(1)(s)

and 3(2)(A)of the Scheduled Caste and Scheduled Tribe (Prevention

of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein

learned 3rd Additional Sessions and Special Judge, Limkheda at

Dahod rejected the said application on 15.02.2022.

3. Feeling aggrieved by the said order, appellant has preferred

present appeal under Section 14-A (2) of the Atrocities Act.

4. However, notice was duly served to the respondent No.2 but

when the matter was called out, none was appeared for and on behalf

of the respondent No.2 to contest this Criminal Appeal.

5. It is submitted by leaned advocate appearing for the appellant

that allegations made in the FIR are vague in nature and the story

narrated is concocted, baseless and far from the truth. That FIR is

nothing but absolutely an abuse at the process of law. That appellant

was a Sarpanch of the Dighiya Gram Panchayat and at present he is

a member of the Gram Panchayat, Dudhiya. That complainant is also

a member of the Gram Panchayat, Dudhiya. That from the appellant

side, nomination form for the post of Deputy Sarpanch was filed

against the complainant, so keeping this in mind, the complainant

has only to pressurize the appellant and his son filed present false

R/CR.A/601/2022 ORDER DATED: 27/04/2022

complaint with some ulterior motive. It is further submitted that

learned Additional Sessions Judge committed an error in holding

that prima facie, the allegations under the Atrocities Act are made

out against the appellant. That looking to the FIR and looking to

settled proposition of law, no offence under the Atrocities Act is

made out and therefore, impugned order deserves to be quashed and

set aside. Hence, it is requested by learned advocate appearing for

the appellant to quash and set aside the order dated 15.02.2022

passed in Criminal Misc. Application No. 32 of 2022 by the learned

3rd Additional Sessions and Special Judge, Limkheda at Dahod and

requested to allow present criminal appeal.

6. From the other side, learned APP appearing for the

respondent-State has submitted that prima facie involvement of

present appellant is clearly made out by the prosecution. Hence, it

was requested by learned APP for the respondent-State to dismiss

this criminal appeal and confirm the impugned judgment and order

dated 15.02.2022 passed in Criminal Misc. Application No. 32 of

2022 by the learned 3rd Additional Sessions and Special Judge,

Limkheda at Dahod.

7. Having heard learned advocate appearing for the appellant as

R/CR.A/601/2022 ORDER DATED: 27/04/2022

well as learned APP appearing for the respondent-State and perusing

the record produce before this Court, it appears that complaint was

filed by the complainant on 19.01.2022 before Limkheda Police

Station, Dist-Dahod against two accused persons for the offence

punishable under Sections 504, 506(2) and 114 of Indian Penal Code

and Sections 3(1)(r), 3(1)(s) and 3(2)(A) of the Atrocities Act stating

that on 17.01.2022 at about 10.00 p.m., he, his wife and his son's

wife were present in his house and their children were playing on the

"Otala" appellant's house at that time, the appellant and his son

came and have spoken abusive words against his caste and have

given threat also. Thereafter, after consulting other persons, the

complainant on 19.01.2022 filed the present complaint and involved

the appellant and his son. It further appears that alleged offence

was occurred on 17.01.2022 and the complaint was filed on

19.01.2022 i.e. after two days without any explanation of delay.

Appellant happens to be Sarpanch of the village Dighiya Gram

Panchayat and at present he is a member of the Gram Panchayat

Dudhiya. It further appears that complainant is also a member of the

Dudhiya Gram Panchayat. From the appellant side, nomination form

for the post of Deputy Sarpanch was also filled up against the

R/CR.A/601/2022 ORDER DATED: 27/04/2022

complainant. Incident was occurred at about 10.00 p.m. and nobody

was present at the place of incidence. Further there is no clear

allegations made in the complaint by the respondent No.2 that

present appellant intentionally insulted/intimidated with intent to

humiliate the respondent No.2 being a member of the scheduled

caste or scheduled tribe in any place within public view or abused

the respondent No.2 being a member of the scheduled caste or

scheduled tribe by his caste name in any place within public view.

8. 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 appellants in the

R/CR.A/601/2022 ORDER DATED: 27/04/2022

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.

9. 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

bail. 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.

10. 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 intentionally

insulted or intimidated by the accused with intent to humiliate in a

place within public view.

R/CR.A/601/2022 ORDER DATED: 27/04/2022

11. Applying the provisions of the Atrocities Act appears to be

doubtful in the facts of the present case. Appellant is resident of

village Gudhiya and therefore, there are no chance that he will ran

away. Further he has undertaken that he will co-operate to

Investigating Agency in every manner as and when called for.

Considering the facts and submissions made by learned advocate

appearing for the appellant and learned APP appearing for the

respondent-State and judgments of the Hon'ble Apex Court as

discussed above, prayer made by the appellant requires

consideration.

12. In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 15.02.2022 passed in Criminal

Misc. Application No. 32 of 2022 by the learned 3 rd Additional

Sessions and Special Judge, Limkheda at Dahod is hereby quashed

and set aside. The appellant is ordered to be enlarged on bail in the

event of his arrest on furnishing a bond of Rs. 10,000/- with surety

of like amount on the following conditions that the appellant:-

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 05.05.2022 between 11.00 a.m. and 2.00 p.m.;

R/CR.A/601/2022 ORDER DATED: 27/04/2022

(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 her 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 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;

13. Despite this order, it would be open for the Investigating

Agency 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.

14. This is, however, without prejudice to the right of the accused

to seek stay against an order of remand, if, ultimately, granted and

R/CR.A/601/2022 ORDER DATED: 27/04/2022

the power of the learned Magistrate to consider such a request in