Gujarat High Court

Dhansukhbhai Ramjibhai Savsviya vs State Of Gujarat on 23 February, 2022

Bench: B.N. Karia

     R/CR.A/1694/2021                                ORDER DATED: 23/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1694 of 2021

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                        DHANSUKHBHAI RAMJIBHAI SAVSVIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
KISHAN Y DAVE(8293) for the Appellant(s) No. 1
MR RASESH H PARIKH(3862) for the Appellant(s) No. 1
MR.HEMANG H PARIKH(2628) for the Appellant(s) No. 1
MR ANIRUDH N SUCHAK(10768) 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 : 23/02/2022

                                  ORAL ORDER

1. Present appellant filed Criminal Misc. Application No.5440 of

2021 before the Court of learned 10th Additional Sessions Judge,

Surat 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. 11210004212400 of 2021 with

Amroli Police Station, Surat City for the offence punishable u/s.

306 and 114 of Indian Penal Code and Sections 3(2) (5-A) of the

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

1989 (for short "the Atrocities Act"), wherein learned 10th Additional

Sessions Judge, Surat rejected the said application on 05.10.2021.

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

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

present criminal appeal under Section 14 of the Atrocities Act.

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

the respondent-State.

4. It is submitted by learned advocate for the appellant that the

learned Additional Sessions Judge erred in considering the fact that

the respondent no.2 has misused of the provisions of the Atrocities

Act and lodged the present FIR and the appellant has not committed

any offence. It is further submitted that the respondent no.2 has

intentionally alleged that they are belonging to the Scheduled Tribes

and the appellant is from the general category and in the alleged note

of the deceased, he has not referred about the caste factor, but the

reasons best known to the respondent no.2, after 10 days of the

incident took place, FIR has been lodged against the appellant which

shows nothing but abuse of process of law and provisions of SCST

Act. It is further submitted that the learned Additional Sessions

Judge ought to have seen that the name of the appellant has been

falsely roped in the alleged offence and on the date of incident, i.e.

04.09.2021, the accidental death no.112 of 2021 was registered and

thereafter, after passing 10 days, i.e. on 13.09.2021, the present FIR

has been lodged with specific intention of applying the provisions of

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

the SCST Act, wherein the name of the present appellant has been

added. Hence, it is requested by learned advocate for the appellant to

allow this appeal.

5. Learned advocate for the respondent no.2 - original

complainant vehemently opposed the submissions made by learned

advocate for the appellant and submitted that the present appellant

has refused outright to pay the outstanding dues to the deceased

which has resulted in failure of fulfillment of commitment of the

deceased to make payment to the labourers and material suppliers. It

is further submitted that the deceased used to accept the work of

construction or renovation of building and used complete the

construction work with the help of the labourers. That the renovation

work was accepted by the deceased from the present appellant. That

deceased was liable to make further payment to his labourers and

suppliers of construction material and that payment was to be made

from the money received from the appellant. That the appellant in

collusion with each other conspired to eat away the hard-earned

money of the deceased and has caused a wrongful enrichment of the

themselves at the cost of the deceased. It is further submitted that

appellant and other co-accused persons have threatened the deceased

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

with dire consequences and straightaway refused to pay the

outstanding legal dues owned to the deceased. It is further submitted

that role of the appellant in denying to make payment to the

deceased as caused great mental and financial stringency and

pressure would clearly show that appellant is a head strong person

and he has threatened the person as well as prosecution witnesses if

he would be released on anticipatory bail. It is further submitted that

prima facie involvement of the present appellant is clearly

established from the contents of the complaint itself as clear

instigation/abetment was made by the appellant in committing

suicide by the deceased as no payment of Rs.4 lakhs was paid to

him. It is further submitted that in the suicide note also, written by

the deceased, name of the appellant is disclosed as he was threatened

and not paid the amount due with the present appellant. Hence, it is

requested by learned advocate for the respondent no.2 to dismiss this

appeal.

6. Learned APP appearing for the respondent-State has supported

the arguments advanced by learned advocate for the respondent no.2.

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

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

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 spoken

alleging someone caste would not involve the present appellants 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

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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.

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 heard learned advocates for the respective parties and

learned APP for the respondent-State, it appears that on 04.09.2021,

the respondent no.2 has lodged the complaint, wherein she has stated

that she has left her home at 08:00 a.m. and her son Pradip had also

left for attending college. Her son Hitesh and her husband were at

home and around 11:45 a.m., she received a phone call from her

husband where her husband has inquired that when she was coming

and she replied that she would be coming shortly. When she reached

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

her home, she found that her house was open and she had gone to

her bedroom, she found that her husband had committed a suicide

by hanging himself and immediately, she had called upon her

neighbour and cut the nylon string and she called her son and son in

law came there, and thereafter, ambulance came there and declared

that her husband had passed away. For this incident, an accidental

death no.112/2021 was registered. After completion of death

ceremony at Gondal, Dist: Rajkot, the complainant had come to her

residence and upon arranging her bedroom, her nephew viz. Vipul

Bhavanbhai Parmar found one paper, wherein it has been written

that 04 persons (appellant herein) are responsible for his death. The

appellant was belonging to the general category and he has not paid

the amount of Rs.4 lakhs towards construction work and the

deceased was belonging to the scheduled tribes and mental

harassment was given to the deceased, the deceased had committed

suicide. It appears in the complaint that the respondent no.2 has

alleged that the appellant is from the general category. If we refer the

alleged suicide note written by the deceased, there is no whisper of

using any words in respect of the caste of the respondent no.2.

Further, it appears that after ten days of the incident, this FIR was

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

lodged by the respondent no.2 against the present appellant. It also

appears that on 04.09.2021, the accidental death no.112/2021 was

registered and thereafter, passing of ten days, i.e. on 13.09.2021, the

present FIR was lodged with specific intention of applying

provisions of the Scheduled Caste and Scheduled Tribes Act,

wherein name of the present appellant is added. If we accept the

story of the suicide note that the deceased had to recover the amount

of Rs.4 lakhs from the appellant, legal remedy was available to him.

In the FIR, period of incident is shown from 09.03.2021 to

04.09.2021. To attract the provisions of Section 306 of the IPC,

ingredients of abetment, the intention of the accused to aid or

instigate or abet the deceased to commit suicide is necessary, which

are admittedly missing in the complaint. Further, to attract the

provisions of Section 306 of the IPC, there has to be a clear mens

rea to commit the suicide. It would also require an active act or

direct act which led the deceased to commit suicide seeing no option

and this act of the accused must have been intended to put the

deceased into such a position that he/she has committed suicide. The

Hon'ble Apex Court, in the case of Siddharth Vs. State of Uttar

Pradesh and another reported in (2022) 1 SCC 676, has held that in

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the normal and ordinary course, the police should always avoid

arresting a person and sending him to jail, if it is possible for the

police to complete the investigation without his arrest and if every

kind of cooperation is provided by the accused to the investigating

officer in completing the investigation. It is only in cases of utmost

necessity that arrest becomes necessary, for instance when custodial

investigation becomes necessary or when there is a heinous crime or

there is a possibility of influencing the witnesses or accused may

abscond, or in other similar circumstances. Personal liberty and

reputation of a person are important aspects of our constitutional

mandate. Merely because an arrest can be made because it is lawful

does not mandate that arrest must be made.

11. Considering the papers produced on record, there is no

ingredient to attract any provisions of Section 306 of the IPC as well

as Section 3(2)(5-a) of the Atrocities Act.

12. If we refer Section 3(5) (A) of the Act, it must be within

knowledge of the accused person that such person is a member of

Schedule Caste or Schedule Tribe or such property belongs to such

member. It is nowhere alleged by the complainant that the accused

persons were having knowledge that the complainant was the

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

member of Schedule Caste or Schedule Tribe or such property

belongs to such member. In absence of any specific allegations to

attract Section 3(5) (A) of the Act, case of the prosecution cannot be

believed at this juncture. Considering the schedule prescribed under

the Act and the facts of the case, the prayer made by the present

appellant requires consideration.

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

impugned judgment and order dated 05.10.2021 passed in Criminal

Misc. Application No.5440 of 2021 by learned 10 th Additional

Sessions Judge, Surat is hereby 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 themselves available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 05.03.2022 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;

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

(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;

14. 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

for the purpose of entertaining application of the prosecution for

police remand.

R/CR.A/1694/2021 ORDER DATED: 23/02/2022

15. 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