Gujarat High Court

Nitinbhai @ Bholo Mahendrabhai ... vs State Of Gujarat on 27 April, 2022

Bench: B.N. Karia

    R/CR.A/241/2022                                 ORDER DATED: 27/04/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 241 of 2022
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               NITINBHAI @ BHOLO MAHENDRABHAI PATEL
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR PARVEZ A PATHAN(10862) 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
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 27/04/2022

                                ORAL ORDER

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

nobody was appeared to contest this Criminal Appeal for and on

behalf of the respondent No.2.

Present appellant filed Criminal Misc. Application No. 49 of

2022 before the Court of learned 3rd Additional Sessions Judge & In-

charge Special Judge (Atrocity), Bharuch u/s 438 of the Code of

Criminal Procedure, 1973 requesting to enlarge the appellant on

anticipatory bail in the event of his arrest on account of offence

being registered vide C.R. No.11199027211600 of 2021 with

Jambusar Police Station, Dist. Bharuch for the offence punishable

u/s. 323, 504, 506(2) and 114 of the Indian Penal Code and u/s.3

(1)(r), 3(1)(s), 3(2)(va)of the Scheduled Castes and the Scheduled

R/CR.A/241/2022 ORDER DATED: 27/04/2022

Tribes (Prevention of Atrocity) Act, 1989 (for short "the Atrocity

Act") wherein, the learned 3rd Additional Sessions Judge & In-

charge Special Judge (Atrocity), Bharuch rejected the said

application vide order dated 21.1.2022

Feeling aggrieved by the said order, the appellant preferred

said appeal u/s 14-A of the Atrocity Act.

Heard learned advocate for the appellant and learned APP for

the respondent-State.

Learned advocate for the appellant has submitted that

appellant is falsely implicated in the said offence by the

investigating agency and no prima facie case is made out against the

appellant. That, appellant is an innocent person and he has not

committed any offence as alleged offence. That, police has falsely

implicated the appellant in the present case. That, learned 3 rd

Additional Sessions Judge, Bharcuh has not appreciated the legal

facts of the record and also not appreciated the legal position of the

law and dismissed the application. That, appellant has not played

any direct or indirect role in the alleged offence. That, appellant is

falsely roped in the alleged offence by the complainant merely on

the basis of suspicion. That, appellant was elected as member of

R/CR.A/241/2022 ORDER DATED: 27/04/2022

Taluka Panchayat and to merely seek revenge and wrek havoc on the

appellant, he has been involved in the alleged offence. That,

appellant along with the other elected members of the Taluka

Panchayat made an application against the relatives of the

complainant before the District Collector, Bharuch stating that the

complainant as well as the other relatives are habitual to making

complaint under the provisions of Atrocity Act, 1989. Hence, it was

requested by learned advocate for the appellant to enlarge the

present appellant on anticipatory bail in the event of his arrest.

From the other side, learned APP for the respondent -State has

opposed the submissions made by learned advocate for the appellant

and submitted that complaint itself shows that prima facie case is

made out against the present appellant. That, no prayer in nature of

anticipatory bail can be granted to the present appellant, considering

his involvement established by the prosecution. That, Section 18A

of the Act clearly bars to grant of anticipatory bail as prayed by the

present appellant. Therefore, no prayer may be granted by this Court

for enlarging them on anticipatory bail. Ultimately, learned APP for

the State has requested to dismiss the present appeal.

Having considered the facts of the case, police papers and

R/CR.A/241/2022 ORDER DATED: 27/04/2022

submissions made by learned advocate for the applicant as well as

learned APP for the respondent-State, it appears that offence was

registered with Jambusar Police Station being C.R.

No.11199027211600 of 2021 for the offence punishable u/s. 323,

504, 506(2) and 114 of the Indian Penal Code and u/s.3 (1)(r), 3(1)

(s), 3(2)(va)of the Atrocity Act. Further it appears from the record

that accused Nos. 1, 2 and 3 were released on regular bail by the

learned Sessions Court.

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

R/CR.A/241/2022 ORDER DATED: 27/04/2022

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 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 within public view.

From the record, it appears that present appellant is

R/CR.A/241/2022 ORDER DATED: 27/04/2022

implicated in the alleged offence with a view to seek revenge

against the result of election. Appellant appears to be involved in a

political party and complaint is made by respondent No.2 to

implicate him in the alleged offence. That, appellant was elected as

member of Taluka Panchayat and therefore to take revenge,

complaint appears to be filed by respondent No.2 Further, it appears

that appellant along with the other elected members of the Taluka

Panchayat have filed one complaint against the relatives of the

complainant before the District Collector, Bharuch stating that the

complainant as well as other relatives are habitual of making

complaint under the provisions of Atrocities Act. Further, to attract

Section 3(1)(r), 3(1)(s) as well as 3(2)(va) as alleged by the

prosecution, intention on the part of the accused persons to intimate

with intent to humiliate a member of Scheduled Caste or a

Scheduled Tribe in any place within public view is must. The

complaint is completely silent in respect of alleged intention of the

appellant humiliating him being member of Scheduled Caste or a

Scheduled Tribe in a place within a public view. Further, there is no

disclosure that present appellant has misused by caste name in a

place within public view. There is no allegations made in the

R/CR.A/241/2022 ORDER DATED: 27/04/2022

complaint that present appellant is knowingly committed any

offence in respect of property against respondent no.2 being member

of Scheduled Caste or a Scheduled Tribe. The section applied by the

prosecution appears to be doubtful in the present case.

Considering the peculiar facts of the case and submissions

made by learned advocate for the appellant as well as learned APP

and fact that three other co-accused are released on regular bail by

the learned Sessions Court, there are no averments made in the

complaint to attract any provision of Atrocities Act, prayer made by

the appellant requires consideration.

The decision of the Hon'ble Apex Court in Criminal Appeal

No. 1311 of 2008 has referred Section 3(1)(x) of the Act which

reads as under:-

3(1) Whoever, not being a member of Scheduled Caste or a Scheduled

Tribes:-

(x)intentionally insults or intimidates with intent to humiliate a member

of a Scheduled Caste or a Scheduled Tribe in any place within public

view.

In absence of any basic ingredients of the Act, no case is made

out as alleged against the present appellant. Therefore, considering

the decision rendered in the aforesaid citations, present appeal

R/CR.A/241/2022 ORDER DATED: 27/04/2022

deserves consideration.

In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 21.1.2022 passed in Criminal

Misc. Application No. 49 of 2022 by learned 3 rd Additional

Sessions Judge and In-charge Special Judge (Atrocity), Bharuch 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 4.5.2022 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 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

R/CR.A/241/2022 ORDER DATED: 27/04/2022

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 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 appellant, even if,