Gujarat High Court
Hiteshbhai Hemabhai Rajput ... vs State Of Gujarat on 1 February, 2022
Bench: B.N. Karia
R/CR.A/1942/2021 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1942 of 2021
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HITESHBHAI HEMABHAI RAJPUT (GOHIL)
Versus
STATE OF GUJARAT
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Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Appellant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 01/02/2022
ORAL ORDER
The appellant preferred one Criminal Misc. Application
No.363 of 2021 before the Court of learned Additional District
Judge, Banaskantha at Tharad u/s. 439 of the Code of Criminal
Procedure, 1973 requesting to enlarge the appellant on regular
bail on account of offence being registered vide C.R. No.
11195060210388 of 2021 registered with Vav Police Station
for the offence punishable under Sections 395 and 323 of the
Indian Penal Code and under Sections 3(1)(r), 3(1)(s), 3(2)
(va) of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocity) Act, 1989 (for short "the Atrocities Act") as well as
u/s. 135 of Gujarat Police Act wherein, the learned Additional
District Judge, Banaskantha at Tharad rejected the said
application on 04.12.2021.
R/CR.A/1942/2021 ORDER DATED: 01/02/2022
Feeling aggrieved by the said order, the appellant
preferred present appeal u/s 14(A) of the Atrocities Act.
Heard learned advocate for the appellant and learned APP
for the respondent-State.
Learned advocate for the appellant has submitted that the
appellant has not committed any offence directly or indirectly
as alleged in the FIR and from the perusal of the charge sheet,
theres is no prima facie case establish against the present
appellant. That, the accused no.6 has filed application for
quashing of the impugned FIR before this Hon'ble Court,
wherein vide order dated 26.10.2021, he was protected in
Criminal Misc. application 18885 of 2021. That, the accused
nos. 1 to 4 are the juvenile accused and they were released on
bail by the Juvenile Board. That, the charge sheet has been filed
on 29.11.2021 after completion of the investigation and
therefore, there is no possibility of tampering with the evidence
of prosecution and influencing the witnesses. Hence, it was
requested by learned advocate for the appellant to quash and
set aside the impugned judgment and order passed by learned
Additional District Judge, Banaskantha at Tharad and release
the appellant on bail.
Learned APP for the respondent No.1-State has strongly
objected the arguments advanced by learned advocate for the
R/CR.A/1942/2021 ORDER DATED: 01/02/2022
appellant and submitted that it is a clear case of committing
offence as alleged by the prosecution. That, present appellant is
the main culprit in the offfence as amount of Rs. 5220/- was
taken away by the present appellant from the pocket of the
shirt of the complainant. That, ingredients of the Atrocities Act
are also applied while considering the facts of the present case
as this incident was taken place at the bus stand at about 4.00
p.m. within public view. That, previous offence committed by
the present appellant with the co-accused and therefore, no
lenient view may be taken by this Hon'ble Court in favour of
the present appellant and ultimately, it was requested by
learned APP for the respondent no.1-State to dismiss present
appeal.
Today, learned APP for the respondent no.1-State has
submitted that notice has been duly served to the respondent
no. 2 as per the report received by him from the Investigating
Officer on 31.01.2022 stating that the copy of the notice was
served on 29.01.2022. Though, none was present for and on
behalf of the respondent no.2 to assist this court in this appeal.
Having considered the facts of the case and submissions
made by learned advocate for the appellant as well as learned
APP for the respondent No.1-State and police papers produced
on record, it appears that accused no.1 to 4 shown in the
R/CR.A/1942/2021 ORDER DATED: 01/02/2022
complaint are Juvenile as they were aged about 6 years and
were released on bail by the Juvenile Court. It further appears
from the record that accused no. 6 namely Dashrathbhai
Geghabhai Rajput has preferred Criminal Misc. Application
No. 18885 of 2021 under Section 482 of the Code of Criminal
Procedure before this Court and this Court (Hon'ble Mr. Justice
Ilesh J. Vora, J.), vide opder dated 26th October 2021, protected
him by not taking any coercive steps. It appears that
investigation is completed and charge sheet was filed by the
Investigating Officer on 29.11.2021 and now, no investigation
is pending. It also appears that the appellant herein is a student
of Standard 10 and nephew of the complainant is also staudent
of Standard 12. From the contents of the complaint, it appears
to be a trivial dispute between the school boys. It also appears
that cross complaint is also registered with Vav Police Station,
District Banaskantha vide CR No. 11195060210389 of 2021.
Perusing the FIR and charge sheet papers, no case is made out
against the present appellant for the offence punishable under
Section 395 of IPC. For invocation of Section 395 of IPC, an
intention or the common object of the unlawful assembly has
to be of dacoity, as defined under Section 391 of IPC. There is
complete absence for invocation of Section 395 of IPC in the
complaint. The invocation of Section 3(2)(v) of the Atrocities
Act would also not be applicable considering the averments
R/CR.A/1942/2021 ORDER DATED: 01/02/2022
made in the complaint by the respondent no.2. Considering the
facts that trial would take considerable time, presence of the
present appellant in judicial custody would not be required as
investigation is over. This Court is of the considered opinion
that this is a fit case to exercise the discretion in favour of
present appellant by enlarging him on regular bail and hence,
the prayer sought for by the present appellant requires
consideration.
In the result, present Criminal Appeal is allowed and the
impugned judgment and order dated 04.12.2021 passed by
learned Additional District Judge, Banaskantha at Tharad in
Criminal Misc. Application No. 363 of 2021 is hereby quashed
and set aside. The appellant is ordered to be enlarged on
regular bail on furnishing a bond of Rs. 10,000/- with one
surety of like amount to the satisfaction of the trial Court and
subject to the conditions that appellant shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the
prosecution;
[c] surrender passport, if any, to the lower court within a
week;
[d] not leave India without prior permission of the
R/CR.A/1942/2021 ORDER DATED: 01/02/2022
concerned Trial Court;
[e] furnish the present address of residence to the
Investigating Officer and also to the Court at the time of
execution of the bond and shall not change the residence
without prior permission of this Court;
The authorities will release the appellant only if he is not
required in connection with any other offence for the time
being. If breach of any of the above conditions is committed,
the Sessions Judge concerned will be free to issue warrant or
take appropriate action in the matter. Bail bond to be executed
before the lower Court having jurisdiction to try the case. It
will be open for the concerned Court to delete, modify and/or
relax any of the above conditions, in accordance with law.
At the trial, the Trial Court shall not be influenced by the
prima facie observations made by this Court in the present
order. Notice is discharged.
Registry is directed to send a copy of this order to the
concerned jail authorities as well as learned Sessions Court
concerned through Fax/Email.
(B.N. KARIA, J)
K. S. DARJI
