Gujarat High Court

Kesarben Vajabhai Daiya vs State Of Gujarat on 10 January, 2022

Bench: B.N. Karia

     R/CR.A/208/2021                                ORDER DATED: 10/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 208 of 2021

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                          KESARBEN VAJABHAI DAIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
DARSHAN M VARANDANI(7357) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MR. NISARG D SHAH(7299) 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 : 10/01/2022

                                 ORAL ORDER

1. Present appellant filed Criminal Misc. Application No. 438 of

2020 before the Court of learned 9 th Additional Sessions Judge,

Bhachau-Kachchh 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.11993010200858 of 2020 for

the offence punishable u/s. 143, 447, 294(B) and 506 (2) of Indian

Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the

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

1989 (for short "the Atrocities Act"), wherein learned 9th Additional

Sessions Judge, Bhachau-Kachchh rejected the said application on

15.01.2021.

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

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

3. Heard learned advocate for the appellant, learned advocate for

the respondent No.2 and learned APP for the respondent-State.

4. Learned advocate for the appellant has submitted that the

appellant is innocent person and has not committed any alleged

offence and appellant is not connected in any manner whatsoever

with the alleged commission of offence. That as alleged in the FIR

the dispute between the parties is in respect of possession of a land.

That the complainant has put criminal machinery in motion with a

view to pressurize the accused and family members and also the

appellant, being a lady member, is dragged into it. It is further

submitted that learned court below erred by not considering the

correct facts where even by going through FIR itself the intention to

falsely implicate the present appellant can be seen whereby totally

exaggerated and vague allegations are levelled and the appellant has

not acted in any such manner as alleged in the FIR. That the

complainant has levelled false allegations and there is no specific

role attributed to appellant, only general and vague allegations are

levelled against them. It is further submitted that present appellant

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was protected by this Court vide order dated 10.02.2021 and co-

accused persons are also enlarged on bail by the court below. Hence,

it was requested by learned advocate for the appellant to allow

present criminal appeal.

5. From the other side, learned advocate appearing for the

respondent No.2 as well as learned APP appearing for the

respondent-State have strongly and vehemently opposed the

submissions made by learned advocate for the appellant and

submitted that appellant has encroached the land and threatened the

respondent No.2 for dire consequences. That the accused persons are

head strong persons and even today they are not permitting the

respondent No.2 to cultivate the land, though the land was given to

the respondent No.2 vide letter dated 01.07.2019 and 07.10.2020.

Learned advocate has referred such letter. It is further submitted that

video recording of the footage is also lying with the respondent No.2

when the appellant with her relatives came to threaten the

respondent No.2 and abused about his caste. It is also submitted by

learned APP for the respondent-State that scope of Section 18 of the

Atrocities Act read with Section 438 of the Code is such that it

creates a specific bar in granting of anticipatory bail. It is further

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submitted that when an offence is registered against the accused

persons under the provisions of Atrocities Act, no court shall

entertain in an application for anticipatory bail. It is further

submitted that the evidence and other material on record is limited

and court is not expected to indulge in critical analysis of the

evidence on record. That with intention to humiliate the respondent

No.2, threat was given by the accused person and abusive words

were spoken by the appellant. That charge-sheet is filed against the

remaining accused persons of the offence. Therefore, no prayer may

be granted by this Court for enlarging her on anticipatory bail.

Ultimately, learned advocate appearing for the respondent No.2 and

learned APP for the State has requested to dismiss the present

appeal.

6. 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

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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.

7. 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.

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

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

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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.

9. Having considered the facts of the case and arguments made

by learned advocates for the respective parties as well as learned

APP for the respondent-State, it appears that as alleged in the FIR

dispute between the parties is in respect of the possession of the

land. In the entire FIR, it is nowhere pleaded by the respondent No.2

that accused is not the member as enshrined in Act. No such plea

was taken in the FIR. Under the circumstances, amended provisions

of Section 18 of the said Act will not come into way of the present

proceedings.

10. In case of Prathvi Raj Chauhan versus Union of India and

Ors. delivered in Writ Petition (C) No.1015 of 2018, Hon'ble Apex

Court has observed as under:

19. As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to

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direct a pre-arrest bail.

20. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.

21. It is important to reiterate and emphasize that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalization of scheduled caste and scheduled tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or bandhutva (बनधध तव) referred to in the Preamble, and statutes like the Act, have been framed. These underline the social - rather collective resolve - of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of her or his dreams. The question which each of us has to address, in everyday life, is can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity

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amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the "otherness" of each one's identity.

11. Sections 3(1)(r), Section 3(1)(s) and Section 3 (2)(v-a) of the

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

provides as under:

(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

(v-a) (commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;

12. It is nowhere stated in the complaint by the respondent No.2

that he was intentionally insulted or intimidated with intend to

humiliate being a member of a Scheduled Caste or Schedule Tribe in

a place within public view or abused him, he being a member of

Scheduled Caste or Scheduled Tribe by caste name at a place within

public view. Further it appears from the contents that it is nowhere

stated by the complainant/respondent No.2 that the present appellant

with a knowledge that complainant is a person from a member of

R/CR.A/208/2021 ORDER DATED: 10/01/2022

Scheduled Caste or Scheduled Tribe or his property belongs to such

a member, any act was committed by the appellant. Prima facie no

case is made out by the prosecution against the present appellant to

involve in the offence.

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 15.01.2021 passed in

Criminal Misc. Application No. 438 of 2020 by learned 9 th

Additional Sessions Judge, Bhachau-Kachchh 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 17.01.2022 between 11.00 a.m. and 2.00 p.m.;

R/CR.A/208/2021 ORDER DATED: 10/01/2022

(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

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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