Gujarat High Court

Ajay @ Bhaylu Kishorji Thakore vs State Of Gujarat on 23 February, 2022

Bench: B.N. Karia

    R/CR.A/109/2022                                   ORDER DATED: 23/02/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 109 of 2022
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                      AJAY @ BHAYLU KISHORJI THAKORE
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR AMRISH S BAROT(3551) for the Appellant(s) No. 1
MR PAWAN A BAROT(6455) for the Appellant(s) No. 1
MR. HARDIK Y KOTHARI(6895) for the Opponent(s)/Respondent(s) No. 2
MS. M.H.BHATT, 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

Present appellant filed Criminal Misc. Application No. 9327

of 2021 before the Court of learned City Civil & Sessions Court at

Ahmedabad 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.11191014210916 of 2021 with Ellisbridge Police Station,

Dist.Ahmedabad city for the offence punishable u/s. 324, 325, 392,

r/w. 114 of IPC and Section 135(1) of G.P. Act as well as u/s.3 (2)

(v), 3(1)(r), 3(1)(s)of the Scheduled Castes and the Scheduled Tribes

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

wherein, the learned Special Judge(Atrocity), Court No.17,

Ahmedabad rejected the said application vide order dated 4.1.2022.

R/CR.A/109/2022 ORDER DATED: 23/02/2022

Feeling aggrieved by the said order, the appellant preferred

said appeal u/s 14-A of the Atrocity Act.

Heard learned advocates for the respective parties and learned

APP for the respondent-State.

Learned advocate for the appellant has submitted that

impugned order is ex facie, illegal, improper and contrary to the

facts and circumstances of the present case. That, learned Judge has

failed to appreciate the provisions of the Act, Section 3 of the Act

obliges the complainant in opening recital to plead the case that the

accused is not a member falls under the said Act, but, the present

case, no such plea is taken in the FIR itself. Therefore, amended

provisions of Section 18 of the said Act will not come into way in

the present proceedings. That, as per the allegations levelled in the

complaint itself that appellant had not even touched the complainant

and at the best only role of snatching away chain which on the face

of it is not believable and digestive. Hence, discretion is required to

be exercised in favour of the appellant. That, appellant is falsely

implicated with malafide intention. That, false accusations are made

by the complainant with the object of humiliating the appellant by

having him so arrested and in the facts of the present case, no

R/CR.A/109/2022 ORDER DATED: 23/02/2022

custodial interrogation is required. Hence, it was requested by

learned advocate for the appellant to enlarge the present appellant on

anticipatory bail in the event of his arrest.

Learned APP for the respondent -State as well as learned

advocate for the respondent No.2 have strongly objected the

submissions made by the learned advocate for the appellant and

submitted that present appellant is the main accused in committing

the offence as he has called the other accused persons and in his

presence, this incident was taken place. It is further submitted that

Mohanbhai Mithabhai Muchhadia is the eye witness of the incident

and he has supported the case of the prosecution. It is further

submitted that panchnama of the place of the offence is prepared by

the Investigating Officer on 3rd February, 2022 and CCTV footages

are also collected and forwarded to FSL and report is awaited. It is

further submitted that serious allegations are made against the

present appellant, serious injuries was caused to the complainant and

prima facie involved the present appellant is established by the

prosecution, hence, prayer made by the appellant cannot be allowed.

Therefore, learned APP for the State as well as learned advocate for

the respondent No.2 have requested to dismiss the present appeal.

R/CR.A/109/2022 ORDER DATED: 23/02/2022

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

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 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

R/CR.A/109/2022 ORDER DATED: 23/02/2022

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, 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.

Having heard learned advocates appearing for the respective

parties as well as learned APP for the respondent-State, it is alleged

in the complaint that on 18th December, 2021 when, complainant

was present near Kalyan Jwellers at Girish Colddrinks, present

appellant called him and reached at the place and had cold drinks

and came down from the shop, one known and two unknown people

came and inflicted iron pipe and kick and fist blow to the

complainant. It also appears in the complaint that present appellant

tried to help him but as the complainant got doubt on him and ask to

R/CR.A/109/2022 ORDER DATED: 23/02/2022

caught him, and present appellant snatched his chain and flew away

from the place of incident in his AUDI car. That, thereafter, 108

ambulance taken with Govt. Hospital and alleged that because of

the doubt between the relationship of complainant with appellant's

wife, the alleged offence was taken place. Complaint came to be

registered on next date i.e. on 19.12.2021. From the contents of the

complaint, appellant has not touched the complainant and only role

of snatching away the chain, which was on the fact of it, was not

believable. It also appears that eye witness as per the prosecution

case namely Mohanbhai Mithabhai Muchhadia in his statement not

stated that any gold chain of the complainant was snatched by the

present appellant. From judgment of Sessions Case No. 47 of 2017

at Annexure "B" dated 13th December, 2021, it appears that original

complainant -Mahendra Popatbhai Chavda was the accused No.1 in

aforesaid Sessions Case and was under custody since July 2017

and was acquitted vide order dated 13th December, 2021. There is

no whisper in the complaint that any words were uttered by the

present appellant insulting the caste of the respondent No.2 or any

members. No injuries was caused by the present appellant nor any

evidence are against him in the complaint itself. To attract Section

R/CR.A/109/2022 ORDER DATED: 23/02/2022

325 of the Act offence must have been committed against the

persons on the ground that such person is a member of Scheduled

Caste and Scheduled Tribes. In the instant case, there is no

allegations or evidence to show that the offence was committed only

on the ground that victim was a member of Scheduled Caste and

therefore, Section 325 of the Act may not be attracted.

In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 4th January, 2022 passed in

Criminal Misc. Application No. 9327 of 2021 by learned Special

Judge (Atrocity), Court No.17, Ahmedabad is hereby quashed and

set aside. The appellant is ordered to be enlarged on bail in the event

of their 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 2.3.2022 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;

(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;

     R/CR.A/109/2022                                       ORDER DATED: 23/02/2022



      (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 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.

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 appellant, even if,