Kanubhai Arkhabhai Parmar vs State Of Gujarat
2022 Latest Caselaw 1348 Guj

    R/CR.A/143/2022                                ORDER DATED: 07/02/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 143 of 2022

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                        KANUBHAI ARKHABHAI PARMAR
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SIKANDER SAIYED(3458) for the Appellant(s) No. 1,2
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED BY DS for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 07/02/2022

                                ORAL ORDER

The appellants have filed Criminal Misc. Application No. 32 of 2022 before the Court of learned 3 rd Additional Sessions Judge, Gandhinagar 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. II-3210 of 2017 with Chandkheda Police Station, Dist: Ahmedabad for the offence punishable u/s. 294(b), 506(2) and 114 of the Indian Penal Code and u/s. 3(1)(r), 3(2-va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short "the Atrocity Act") as well as u/s. 135(1) of the Gujarat Police Act wherein, the learned 3rd Additional Sessions Judge, Gandhinagar has rejected the said application on 12.01.2022.

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Feeling aggrieved by the said order, the appellants preferred said appeal u/s 14-A of the Atrocity Act.

Heard learned advocate for the appellants and learned APP for the respondent-State.

Learned advocate for the appellants has submitted that the appellants are innocent person and wrongly involved in the present crime in question. That, there is no direct or indirect role attributed to the present appellants. That, it is an admitted fact that the complainant has not received any simple or grievous injury. That, the appellants have nothing to do with the present crime in question, and their names have been wrongly dragged with a view to achieve the goal of the respondent No.2. Hence, it was requested by learned advocate for the appellants to enlarge the present appellants on anticipatory bail in the event of their arrest.

From the other side, learned APP for the respondent No.1

-State has opposed the prayer made by the appellants and submitted that prima facie involvement of the appellants is established by the prosecution. Referring the contents of the complaint, it was submitted that threat was given by the complainant to withdraw the complaint lodged against the wife of Jigar Shah and Jigar Shah himself otherwise dire consequences would be faced by the complainant as he would be murdered within a period of 24 hours. It was further

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submitted that after hearing the shouting of the complainant, appellants ran from the place on their vehicles. Thereafter, the complainant was standing there, a friend of the Mr. Jigar Shah namely Biren Soni came there, at that time, brother of the complainant Mr. Gaurang Asodiya was standing with him, appellants informed the complainant to settle the complaint lodged against the sister Ankita Soni otherwise they would not be permitted to stay in Chandkheda. That, using abusive language and derogatory words against the complainant, offence was clearly made out by the appellants. It was further submitted that Section 8 restricts to grant anticipatory bail to the appellants. Hence, it was requested by learned APP for the respondent No.1- State to dismiss present appeal.

It appears that service affidavit is filed by the appellants through Makwana Sanjaykumar who states on oath that respondent no.2 is served with the notice on 02.02.2022. However, today, when the matter was called, none was appeared for and on behalf of the respondent no.2. Thus, no arguments are advanced on the side of the respondent no.2 in this appeal.

Having considered the facts of the case, police papers and submissions made by learned advocate for the appellants as well as learned APP for the respondent-State, it appears that the alleged incident was taken place on 24th October 2017 at

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about 21.30. There is a delay 20 hours in registration of the FIR. A complaint came to be registered on 25 th October 2017 at 05.00 hours and no plausible explanation was given by the complainant for the said delay. From the complaint, it appears that he has not received any simple or grievous injuries because of any threat whatsoever. From the contents of the FIR, it appears that in order to settle the complaint given by Jignesh Shah, complainant has chosen to file this FIR against the present appellant. On 11.07.2017, Mr. Jignesh Shah lodged a complaint against Pappu Asodiya (complainant herein) and Gaurang alias Guloyod Asodiya for the offence punishable under Sections 323, 114 of the Indian Penal Code with Chandkheda Police Station, Ahmedabad City. From the caste certificates dated 08.07.1994 and 10.11.1994 produced on record, it appears the appellant belongs to Scheduled Caste and Scheduled Tribe, and therefore, provisions of the Act would not be attracted to the present appellants, who are coming from the Scheduled Caste/Scheduled Tribe.

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

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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.

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,

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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.

Therefore, considering the decision rendered in the aforesaid citations, present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 12.01.2022 passed in Criminal Misc. Application No. 32 of 2022 by learned 3 rd Additional Sessions Judge, Gandhinagar is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs. 10,000/- each with surety of like amount on the following conditions that the appellant:-

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 14.02.2022 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 him 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;

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.

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 appellants, even if, remanded to the police custody, upon

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completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail.

Notice stands discharged. Direct service is permitted.

(B.N. KARIA, J) K. S. DARJI