Gujarat High Court

Nitin Harilal Patel vs State Of Gujarat on 2 February, 2022

Bench: B.N. Karia

       R/CR.A/1255/2021                                     ORDER DATED: 02/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/CRIMINAL APPEAL NO. 1255 of 2021

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                                    NITIN HARILAL PATEL
                                           Versus
                                    STATE OF GUJARAT
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Appearance:
DHRUVIN P BHUPTANI(8295) for the Appellant(s) No. 1
MR. JAY M THAKKAR(6677) for the Appellant(s) No. 1
MR ZUBIN F BHARDA(159) 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 appellant filed Criminal Misc. Application No. 611 of

2021 before the Court of learned Special Judge (POCSO) & 3 rd

Additional Sessions Judge, Bharuch u/s. 438 of the Code of Criminal

Procedure, 1973 requesting to enlarge the appellant on anticipatory

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

No.11199024210873 of 2021 for the offence punishable u/s. 354A

of Indian Penal Code, Section 3(1)(w) (I) of the of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for

short "the Atrocities Act") and under Section 8 of Protection of

Children from Sexual Offences Act, 2012, wherein learned Special

Judge (POCSO) & 3rd Additional Sessions Judge, Bharuch rejected

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

the said application on 18.08.2021

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

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

3. Heard learned advocate for the appellant, learned advocate for

the respondent No.2 and learned APP for the respondent-State.

5. Learned advocate for the appellant has submitted that the

appellant is innocent person and has not committed any alleged

offence and appellant is not connected in any manner whatsoever

with the alleged commission of offence. That appellant is involved

into social service since last many years and present FIR is nothing

but an attempt to tarnish the image of the present appellant. That

from the bare reading of the FIR, no prima facie case is made out

against the appellant and entire FIR is vexatious and in gross abuse

of process of law. That at no stretch of imagination, it can be

assumed that ingredients of Section 3(1)(w)(i) of the Atrocities Act

are applicable. It is further submitted that there is nothing on record

to prove that the appellant has tried to intentionally touch the

respondent No.2 with a sexual intent. It is further submitted that

there is no allegation that the appellant had tried to develop physical

contact with a sexual intent. That appellant is having good reputation

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

in the society and has no criminal antecedents of the present

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

appellant to allow present criminal appeal.

6. 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 for the appellant

and submitted that there was no enmity with the present appellant

and respondent no.2 at any point of time and there is no reason to

lodge false complaint by her at this age. It is further submitted that

clear allegations are made against the present appellant by the

respondent No.2 while she was cleaning the house of the present

appellant, her modesty was outraged by the present appellant. That

day to day such kind of incidents are increasing in the society, and

therefore, appellant can not be permitted to get any benefit in the

nature of anticipatory bail. Hence, it was requested by learned

advocate appearing for the respondent No.2 as well as learned APP

appearing for the respondent-State to dismiss this criminal appeal.

7. 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

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

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 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.

8. 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,

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

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

provisions of the Act as mentioned in the complaint.

9. 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.

10. Having considered the facts of the case, arguments advanced

by learned advocates for the respective parties as well as learned

APP appearing for the respondent-State and perusing the record, it

appears that as per the case of complainant, on 08.07.2021

complainant along with one Sitaben had gone to work in the farms at

the back side of the house of present appellant, when he called the

complainant to clean the house and while complainant was cleaning

the house, present appellant came and hugged her from the back side

and immediately complainant flee away and while she was running,

appellant informed her not to tell anyone about the same, and

thereafter, this complaint was registered before Hansot Police

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

Station, Bharuch. From the contents of the complaint, it appears that

alleged incident was taken place in the house of the present

appellant. If we carefully peruse the averments made in the

complaint, it is nowhere stated that present appellant intentionally to

touch her with a knowledge that she belongs to Scheduled Caste or

Scheduled Tribe when such act of touching is of a sexual nature. To

attract Section 3(1)(w)(i) of the Atrocities Act, it would be necessary

to incorporate this specific allegation in the complaint in respect of

intention of the accused person while touching a moment as well as

with the knowledge that the person is from member of Scheduled

Caste or Scheduled Tribe. The ingredients as alleged in the

complaint are missing. Appellant appears to be aged 62 years old

and agriculturist. There are no other allegations made against the

present appellant. Considering the peculiar facts of the present case

and submissions advanced by learned advocates for the respective

parties, prayer made by the present appellant requires consideration.

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

impugned judgment and order dated 18.08.2021 passed in Criminal

Misc. Application No. 611 of 2021 by learned Special Judge

(POCSO) & 3rd Additional Sessions Judge, Bharuch is hereby

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

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 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;

(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

R/CR.A/1255/2021 ORDER DATED: 02/02/2022

(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;