Gujarat High Court
State Of Gujarat vs Faruqkhan Mansurkhan Pathan on 1 February, 2022
Bench: B.N. Karia
R/CR.A/1698/2021 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1698 of 2021
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STATE OF GUJARAT
Versus
FARUQKHAN MANSURKHAN PATHAN
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Appearance:
MR HARDIK SONI, APP for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 3
MR APURVA R KAPADIA(5012) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 01/02/2022
ORAL ORDER
By preferring present appeal, the appellant-State has
requested to quash and set aside the order dated 26.03.2021
passed in Criminal Misc. Application No. 235 of 2021 by the
learned 2nd Additional Sessions Judge, Chhota Udepur and
cancel the regular bail granted to the respondents no.1 and 2.
Heard learned APP for the appellant-State and learned
advocate for the respondents No.1 and 2.
It was submitted by learned APP for the appellant-State
that in connection with the offence registered with Chhota
Udepur Police Station on 15.03.2021 being CR No.
1184002210186 of 2021 for the offence punishable under
Sections 143, 147, 149, 452, 427, 376(2)N, 307, 504, 506(2)
of the Indian Penal Code, Section 135 of the Gujarat Police Act
R/CR.A/1698/2021 ORDER DATED: 01/02/2022
and Section 3(1)(R)(s)(w-2), 3(2)(5) of the Atrocity Ac, the
respondents no.1 and 2 were arrested and therefore, they filed
Regular Bail Application being Criminal Misc. Application
No.235 of 2021 before the trial court wherein the
investigating officer has filed his affidavit on 26.03.2021 and
the learned District and Sessions Court passed an order on
26.03.2021 releasing the respondents No.1 and 2 on regular
bail and thereafter, the charge sheet is filed on 03.05.2021. It
was further submitted by learned APP for the appellant that
learned trial court ought to have considered that as per the FIR,
the accused forcefully trying to convert the complainant from
Hindu to Muslim by accepting the Islam. That, the judgment
and order of releasing the respondents no.1 and 2 is bad in law
and therefore, he has requested to quash and set aside the
order of releasing the respondent no.1 and 2 on bail and direct
the investigating officer to send them into the judicial custody.
Learned advocate for the respondents no.1 and 2 has
strongly objected the submissions made by learned APP for the
appellant-State and submitted that accused no.1 namely
Shakilhusen Ahmedhusen Baloch(Makrani) is released on
anticipatory bail by this Court in Criminal Appeal No. 598 of
2021. it was further submitted that the accused no.2, 5 and 6
have preferred Criminal Misc. Application No. 6065 of 2021
for quashing of the impugned complaint wherein this
R/CR.A/1698/2021 ORDER DATED: 01/02/2022
Court has protected them vide order dated 1st April 2021. it
was further submitted that there is no allegation against the
respondents No.1 and 2 herein to commit rape upon the
prosecutrix. It was further submitted that the complainant is
serving as a teacher and three different complaints were filed
by her under the shelter of Atrocities Act. That, investigation is
over and charge sheet has been filed. It was further submitted
that prayer made by the appellant cannot be allowed as the
liberty granted to the respondents No.1 and 2 cannot be
curtailed by this Court without any adverse point out by the
prosecution. Hence, learned advocate for the respondents No.1
and 2 has requested to dismiss present appeal filed by the
appellant-State.
Though notice has been served to the respondent no.3.
none was present for and on behalf of the respondent no.3 as
per submissions made by learned advocate for the respondents
No.1 and 2. Hence, no arguments were advanced on the side of
the respondent no.3.
Having heard learned APP for the appellant-State and
learned advocate for the respondents No.1 and 2, it appears
that in Criminal Misc. Application No. 235 of 2021,
respondents No.1 and 2 were released on bail vide order dated
26.03.2021. As per the observations of the court below,
complainant herself is serving as teacher at Chhota Udepur
R/CR.A/1698/2021 ORDER DATED: 01/02/2022
and admitted that she has filed three different complaint under
the Atrocities Act. It appears that accused no.1 is released on
anticipatory bail on 08.07.2021 by this Court in Criminal
Appeal No. 598 of 2021. In para 8 and 9 of the order passed
by this Court in Criminal Appeal No. 598 of 2021, it is
observed that:
"8. Considered the rival submissions and perused the case
papers. Record indicates that, before this FIR, the victim had filed
two FIRs against the different individuals of village Chhota
Udepur. Out of two, one was filed against four persons on
26.07.2019 under Section 504, 506(2) and 114 of the IPC and
Section 3(2)(v)(a) and 3(1)(r) of the Atrocities Act and other one
was filed against seven persons under Sections 376, 377, 420,
323, 504, 506(2), 507 and 114 of IPC and under Section 3(1)
(10) of the Atrocities Act.
9. In the present case, a bare reading of the FIR reveals that, there
is a delay of seven months in lodging the FIR as for the incident
dated 28.08.2020, the FIR came to be lodged on 15.03.2021. It is
evident that, the prosecution is unable to produce the medical
case papers to show that, on account of the alleged offence, the
victim aged about 36 years got pregnant. In view of the aforesaid
facts, this Court is of the considered view that, the victim
remained in the company of the appellant for a considerable
period. A bare reading of the FIR, nowhere it mentioned that, the
appellant abused her by calling her caste name. The allegations of
humiliation are vague and general in nature. It is pertinent to
note that, the alleged incident according to the version of the
victim was happened at her home. Thus, prima facie, it is not
established that, the victim was insulted or intimidated by the
appellant in a place within public view."
If we refer the complaint, there is no allegation against
R/CR.A/1698/2021 ORDER DATED: 01/02/2022
the present respondents No.1 and 2 under Section 376 of the
Indian Penal Code and they are referred as abettor of the
accused no.1 and 2, wherein the accused no.1 was granted
anticipatory bail by this court. Accused no.2, 5 and 6 have
preferred Criminal Misc. Application No. 6065 of 2021 for
quashing of the complaint, wherein they were protected by this
court vide order dated 1st April 2021.
Thus, considering the allegations made by the
complainant against the respondents no.1 and 2, the trial court
has rightly exercised the power by releasing them on regular
bail under Section 439 of the Code of Criminal Procedure.
Once liberty is granted to the accused persons without any
cogent and satisfactory reasons, court may not interfere therein
or curtail the liberty by cancelling the bail granted to them as
there is no case is made out to interfere with the impugned
order granting bail to the respondents No.1 and 2 herein.
Thus, present application stands rejected. Notice of
admission stands discharged.
(B.N. KARIA, J)
K. S. DARJI
