Gujarat High Court

Khemjibhai Jemalbhai Patel vs State Of Gujarat on 23 February, 2022

Bench: B.N. Karia

      R/CR.A/33/2022                               ORDER DATED: 23/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 33 of 2022

                                With
     CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 1 of 2022
                 In R/CRIMINAL APPEAL NO. 33 of 2022
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                         KHEMJIBHAI JEMALBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR. HRIDAY BUCH FOR MR N P CHAUDHARY(3980) for the Appellant(s)
No. 1,2
MR NIRAV K PADHIYAR(5678) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 23/02/2022

                                ORAL ORDER

ORDER IN CRIMINAL APPEAL NO. 33 of 2022

1. The appellants preferred one Criminal Misc. Application No.

387 of 2021 before the Court of learned Additional District Judge

Banaskantha at Tharad u/s. 439 of the Code of Criminal Procedure,

1973 requesting to enlarge the appellants on regular bail on account

of offence being registered vide C.R. No.11195050211014 of 2021

with Tharad Police Station, Banaskantha for the offence punishable

u/s. 323, 324, 394, 294(b) and 114 of the Indian Penal Code and u/s.

3(1)(r), 3(1)(s), 3(2)(v) and 3(2)(va) of the Scheduled Caste and

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

R/CR.A/33/2022 ORDER DATED: 23/02/2022

Atrocities Act") wherein, the learned Additional District Judge

Banaskantha at Tharad rejected the said application on 28.12.2021.

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

present appeal u/s 14A of the Atrocities Act.

3. Heard learned advocates for the respective parties and learned

APP for the respondent-State.

4. Learned advocate for the appellants has submitted that

appellants are falsely implicated in the said offence. That FIR lodged

by the first informant is absolutely false, frivolous and concocted.

That appellant No.1 had gone to house of the complainant for getting

money for agriculture work and allegation was made in the

complaint for robbery only not for paying amount. That now

investigation is over and charge-sheet is filed. That no recovery was

made by the prosecution from the present appellants and Savitaben

has not sustained any injury as narrated in the complaint. Hence, it

was requested by learned advocate for the appellants to quash and

set aside the impugned judgment and order passed by learned

Additional District Judge Banaskantha at Tharad and release the

appellants on bail. In support of his argument, learned advocate

appearing for the appellants has relied upon the judgment in the case

R/CR.A/33/2022 ORDER DATED: 23/02/2022

of Himatsing Shivsing vs. State of Gujarat reported in (1961) GLR

678.

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 for the

appellants and submitted that both the appellants are real brothers.

That from the FIR itself and police papers, serious offence is

committed by the present appellants. That Lalabhai received

grievous injuries on hand and due to those injuries, he was got

fracture and he was admitted for treatment at Civil Hospital, Tharad

and for further treatment he was admitted in Civil Hospital,

Palanpur. That FIR clearly mentioned about the offences of

Atrocities Act, which cannot be disputed. That Section 390 of the

I.P.C. is clearly attracts the facts of the present case as the robbery

was committed by the appellant No.1. Referring the injury papers of

the injured, it is submitted that involvement of the present appellants

is clearly established by the prosecution. Hence, it was requested by

learned APP for the respondent-State as well as learned advocate

appearing for the respondent No.2 to dismiss the present appeal.

6. Having heard learned advocates appearing for the respective

R/CR.A/33/2022 ORDER DATED: 23/02/2022

parties and learned APP appearing for the respondent-State, it

appears that as per the prosecution, appellant No.1 had gone to the

house of the complainant for taking money of the agricultural work.

At that time uncle of the complainant denied to pay such amount on

the ground that he had no money. It is further alleged in the

complaint that appellant No.1 abused the uncle of the complainant

by caste and aunt of the complainant and alleged that appellant No.1

gave iron pipe blow on the head of Gangarambhai (uncle of the

complainant). It is further alleged that at that point of time, appellant

No.2 came with tractor and gave stick blow on the head of

Panchabhai. Appellant No.1 gave stick blow on the hands of

Lalabhai. It is further alleged that robbery was committed by the

appellants and injured persons were admitted in the hospital. From

the investigation papers produced by the present appellant, it appears

that injuries were caused to Gangarambhai, Panchabhai, Lalabhai

and Savitaben Rupabhai and certificates of the injured persons were

also issued by the doctor and are produced on record. From the

contents of the complaint lodged by the respondent No.2, prima

facie, it appears that appellants are involved in offence of robbery as

defined under Section 390 of the Indian Penal Code.

R/CR.A/33/2022 ORDER DATED: 23/02/2022

7. In the case of Himatsing Shivsing vs. State of Gujarat

reported in (1961) GLR 678, this Court has observed as under:

"The words 'for that end' in Section 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by the theft it does not mean that the assault or the hurt must be caused in 'the same transaction or in the same circumstances."

8. To attract the provisions of Section 390 of the Indian Penal

Code in the present case, prima facie involvement of the appellant

No.1 is made out at this juncture by the prosecution. As clear

allegations are made against him by the respondent No.2 in the

complaint. Object as defined under Section 390 of the I.P.C. would

be a part of the evidence to be recorded during the trial.

9. Considering the role of the present appellants, this Court is not

inclined to accept the prayer of the appellant No.1-Khemjibhai

Jemalbhai Patel.

10. Considering the role of the appellant No.2, this Court is

inclined to accept the prayer of the appellant No.2- Bhemajibhai

Jemalbhai Patel.

11. In the result, present Criminal Appeal is allowed qua

appellant No.2- Bhemajibhai Jemalbhai Patel and stands dismissed

R/CR.A/33/2022 ORDER DATED: 23/02/2022

qua appellant No.1-Khemjibhai Jemalbhai Patel. The impugned

judgment and order dated 28.12.2021 passed by learned Additional

District Judge Banaskantha at Tharad in Criminal Misc. Application

No. 387 of 2021 is hereby quashed and set aside qua appellant

No.2- Bhemajibhai Jemalbhai Patel. Appellant No.2- Bhemajibhai

Jemalbhai Patel is ordered to be enlarged on regular bail on

furnishing a bond of Rs. 10,000/- with one surety of like amount to

the satisfaction of the trial Court and subject to the conditions that

appellant No.2- Bhemajibhai Jemalbhai Patel shall;

[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned Trial Court;

[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

12. The authorities will release the appellant No.2- Bhemajibhai

Jemalbhai Patel only if he is not required in connection with any

other offence for the time being. If breach of any of the above

conditions is committed, the Sessions Judge concerned will be free

R/CR.A/33/2022 ORDER DATED: 23/02/2022

to issue warrant or take appropriate action in the matter. Bail bond to

be executed before the lower Court having jurisdiction to try the

case. It will be open for the concerned Court to delete, modify and/or

relax any of the above conditions, in accordance with law.

13. At the trial, the Trial Court shall not be influenced by the

prima facie observations made by this Court in the present order.

14. Direct service is permitted.