Gujarat High Court

Bhupendrabhai Labhshankar Vora vs State Of Gujarat on 2 February, 2022

Bench: B.N. Karia

     R/CR.A/932/2021                                ORDER DATED: 02/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 932 of 2021

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                   BHUPENDRABHAI LABHSHANKAR VORA
                                Versus
                          STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Appellant(s) No. 1,2,3
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1,2,3
MR A M JOSHIYARA(5145) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK K RAVAL(6366) 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 : 02/02/2022

                                 ORAL ORDER

1. Present appellants filed Criminal Misc. Application No. 277 of

2021 before the Court of learned Special Judge and Additional

Sessions Judge, Sabarkantha @ Idar u/s. 438 of the Code of

Criminal Procedure, 1973 requesting to enlarge the appellants on

anticipatory bail on account of offence being registered vide C.R.

No.11209028211058 of 2021 for the offence punishable u/s. 323,

452 and 504 of Indian Penal Code and Sections 3(1)(r), 3(1)(s) and

3(2)(va) of the of the Scheduled Caste and Scheduled Tribe

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

and Section 135 of the G.P. Act, wherein learned Special Judge and

Additional Sessions Judge, Sabarkantha @ Idar rejected the said

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application on 05.07.2021

2. Feeling aggrieved by the said order, appellants have preferred

present appeal under Section 14 of the Atrocities Act.

3. Heard learned advocate for the appellants, learned advocate

appearing for the respondent No.2 and learned APP for the

respondent-State.

4. Learned advocate for the appellants has submitted that the

appellants are innocent person and have not committed any alleged

offence and appellants are not connected in any manner whatsoever

with the alleged commission of offence. That prima facie, there is no

proof to substantial such allegation that the appellants had

committed an offence under the Atrocities Act . That from the bare

perusal of the FIR and allegations made in the FIR, no ingredients

are fulfilled to make the appellants liable for the offence punishable

under Sections 323, 452 and 504 of the I.P.C. That allegations of the

complainant fails to fall within the parameter of definition of the

attempt to murder, thereby it clearly goes to show that the complaint

of the complainant is nothing but abuse of process of law wherein

the basic ingredients to constitute offence of extortion is not made

out. It is further submitted that complainant failed to mention what

R/CR.A/932/2021 ORDER DATED: 02/02/2022

were the obscene words used by the accused to commit the said

criminal offence and the complaint is also silent qua the fact as what

were the intention of the accused to commit the alleged offence.

That there is no evidence to show that actually any case of Atrocities

is made out with the mala fide intention of keeping the appellants

behind the bards, frivolous allegations are levelled with respect to

the Atrocities. Hence, it was requested by learned advocate for the

appellants to allow present criminal appeal.

5. Learned advocate appearing for the respondent No.2 as well as

learned APP appearing for the respondent-State have strongly

objected the submissions made by learned advocate appearing for

the appellants submitting that in a complaint lodged by the

respondent No.2, clear allegations are made against the present

appellants involving them in the alleged offence, and therefore, no

lenient view can be taken by this Court. Hence, it is requested by

them to dismiss this criminal appeal.

6. 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

R/CR.A/932/2021 ORDER DATED: 02/02/2022

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.

7. 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,

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it is found that there are no specific averments, attracting the

provisions of the Act as mentioned in the complaint.

8. 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.

9. Having considered the facts of the case, arguments of learned

advocates appearing for the respective parties as well as learned APP

appearing for the respondent-State, it appears that as per the case of

the prosecution on 24.06.2021 at around 2:00 p.m. when the

complainant and his wife and children were at their home, at that

time Bhitiben entered into the house of complainant with a stick in

her hand and started abusive words against the caste of the

complainant and dragged him out of his house and started speaking

abusive and offensive language. Further allegations were made in

the complaint that Bhitiben told the complainant not to pour water in

front of the house as pouring water causes unhygienic atmosphere

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and started saying about the caste of the complainant. It is further

alleged in the complaint that, at that time, complainant asked

Bhupendrabhai not to speak any bad words about their caste, and

thereafter, his wife Mayaben and their daughter Bhitiben, came with

stick and gave stick blow to the complainant as well as his wife and

somehow, the complainant and his wife saved themselves and got

rescued from the accused and went inside the house.

10. It further appears from the record that cross complaint is also

lodged against the respondent No.2 by the daughter of appellant

No.3-Bhitiben on 24.06.2021 for the offence punishable under

Section 323, 294(b), 504, 506(2), 354 and 114 of the I.P.C. as well

as Section 135 of the G.P. Act. From perusing both the complaints

lodged by either side, it appears that there is certain dispute

remained pending before the parties and they have lodged the

complaint from their side before the police authority.

11. To attract the provisions under Sections 3(1)(r) 3 (1)(s) and

3(2)(va) of the Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities Act),1989, there is no specific allegations made in the

complaint that present appellant intentionally insulted or intimidated

with intent to humiliate the respondent No.2 being a member of

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Scheduled Caste or Schedule Tribe in any place within public view.

In absence of any specific ingredients awarded in the complaint and

cross complaint is filed from the appellant's side against the

respondent No.2, prayer made by the appellants requires

consideration.

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

impugned judgment and order dated 05.07.2021 passed in Criminal

Misc. Application No. 277 of 2021 by learned Special Judge and

Additional Sessions Judge, Sabarkantha @ Idar 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 themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 09.02.2022 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 her from disclosing such facts to the court or to any police officer;

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(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 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 entertaining application of the prosecution for

police remand.

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14. 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