Gujarat High Court

Bakhudiya Parulben Jayantibhai vs State Of Gujarat on 7 February, 2022

Bench: B.N. Karia

     R/CR.A/1539/2021                                ORDER DATED: 07/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1539 of 2021

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                        BAKHUDIYA PARULBEN JAYANTIBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR.ADITYA J PANDYA(6991) for the Appellant(s) No. 1
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STN 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

1. Present appellant filed Criminal Misc. Application No. 291 of

2021 before the Court of learned 3 rd Additional Sessions Judge,

Viramgam 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.11192060210571 of 2021

with Viramgam Rural Police Station for the offence punishable u/s.

143, 146, 323, 504, 506(2) and 427 of Indian Penal Code and

Sections 3(1)(r) and 3(1)(s) of the of the Scheduled Caste and

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

Atrocities Act"), wherein learned 3rd Additional Sessions Judge,

Viramgam rejected the said application on 28.09.2021.

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

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

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

3. However notice was served to the respondent No.2, she was

not remained present either in person or through an advocate to

contest this criminal appeal.

4. Heard learned advocate for the appellant and learned APP for

the respondent-State.

5. Learned advocate for the appellant has submitted that the FIR

is lodged under Section 3(1)(r) and 3(1)(s) of the Atrocities Act. As

far as Section 3(1)(r) is concerned the same provides that any person

not being a member of Scheduled Caste or a Scheduled Tribe

intentionally insults or intimidates with intent to humiliate a member

of Scheduled Caste or a Scheduled Tribe in any place within public

view. That no specific allegation of Atrocity is attributed to the

appellant. The allegation is a very bare and general in nature, which

shows that the offence of atrocity is not at all attracted qua present

appellant. These allegations are made solely for the purpose of

harassing the appellant and other co-accused. That since the FIR

does not satisfy ingredients of the offence under Atrocities Act, the

anticipatory bail application is maintainable. Hence, it was requested

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

by learned advocate for the appellant to allow present criminal

appeal.

6. From the other side, learned APP for the respondent -State has

strongly opposed the prayer made by the appellant referring the case

papers and argued that prima facie involvement of the present

appellant is clearly made out by the prosecution. That incident was

occurred on account of the dispute as the husband of the complainant

used some abusive word with the accused- Melabhai. Therefore, this

incident was taken place. That no anticipatory bail can be granted to

present appellant as prima facie she is involved in the offence.

Referring Section 18 of the Act, it is submitted that no prayer in a

form of anticipatory bail can be granted by this court in favour of the

present appellant. Ultimately, learned APP for the State has

requested to dismiss the present appeal.

7. As the respondent No.2 was remained absent, no arguments

was advanced.

8. Having considered the facts of the case as well as arguments

of learned APP for the respondent-State, it appears that FIR bearing

No.11192060210571 of 2021 registered with Viramgam Rural

Police Station for the offence punishable u/s. 143, 146, 323, 504,

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

506(2) and 427 of Indian Penal Code and Sections 3(1)(r) and 3(1)

(s) of the of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocity) Act, 1989. As per the case of the complainant, she belongs

to Scheduled Caste. It appears that at around 11:00 a.m. in the

morning while she was returning after the natures call, one Velabhai

Fulabhai Bakhudiya of her village was standing along with

Maheshbhai Velabhai Bakhudiya, Melabha Velabhai Bakhudiya,

Rasilaben w/o Melabhai Bakhudiya, Dharsinhbhai Bhagwanbhai

Bekhudiya, Hamirbhai Dharsinhbhai Bakhudiya, Jayantibhai

Ranchoddbhai Bakhudiya, w/o Jayantibhai and Vijabhai Jayantibhai

Bakhudiya. They all asked where is Chandu "caste slang" and

when the complainant asked why they are inquiring about him, they

told that "caste slang" you just remain silent. Further, Melabhai and

wife Rasilaben gave her a slap on the left cheek. One passer-by of

the same village namely Hemabhai Popatbhai Koli intervened and

saved the complainant.

9. It also appears that the incident was occurred due to some

difference on a telephonic conversation between Chandubhai and

Melabhai. To attract the provisions of Section 3(1)(r) of the

Atrocities Act, which provides that any person not being a member

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

of Scheduled Caste or a Scheduled Tribe intentionally insults or

intimidates with intent to humiliate a member of Scheduled Caste or

a Scheduled Tribe in any place within public view. Such averments

are clearly missing in the complaint lodged by the respondent No.2

against the appellant. If we read the entire FIR, no specific

allegations of attracting any provisions of the Atrocities Act are

applied by the prosecution. Allegations are general in nature, which

shows that offence of atrocities is not at all attracted by the present

appellant. Since the FIR does not satisfy ingredients of the offence

punishable under Atrocities Act, anticipatory bail application would

be maintainable. It also appears from the record that there are several

complaint lodged against the complainant also her husband. Copy of

the same is produced on record.

10. 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 scrutiny the complaint is found

to be prima facie mala fide. View taken by the High Court of Gujarat

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

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.

11. 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,

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

provisions of the Act as mentioned in the complaint.

12. In the case of Gorige Pentaiah v. State of Andhra Pradesh

and Ors, reported in (2008)12 Supreme Court Cases 531, it was held

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

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.

13. Therefore, considering the decision rendered in the aforesaid

citations and considering the allegations made against the present

appellant by the respondent and role played by the present appellant,

this Court is inclined to accept the prayer made by present appellant.

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

impugned judgment and order dated 28.09.2021 passed in Criminal

Misc. Application No. 291 of 2021 by learned 3 rd Additional

Sessions Judge, Viramgam is hereby quashed and set aside. The

appellant is ordered to be enlarged on bail in the event of her 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 herself 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.;

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

(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

(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;

15. Despite this order, it would be open for the Investigating

Agency to apply to the competent Magistrate, for police remand of

the appellant. The appellant 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

R/CR.A/1539/2021 ORDER DATED: 07/02/2022

for the purpose of entertaining application of the prosecution for

police remand.

16. 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