Gujarat High Court

Rekhaben Shaileshbhai Manubhai ... vs State Of Gujarat on 3 January, 2022

Bench: B.N. Karia

     R/CR.A/1848/2021                                   ORDER DATED: 03/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1848 of 2021

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                REKHABEN SHAILESHBHAI MANUBHAI BARIA
                               Versus
                         STATE OF GUJARAT
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Appearance:
SHIVAM H CHOKSHI(9120) for the Appellant(s) No. 1
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED(64) for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                 Date : 03/01/2022

                                  ORAL ORDER

1. Present appellant filed Criminal Misc. Application No. 724 of

2021 before the Court of learned 2nd Additional Sessions Judge,

Chhota Udepur 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.11184004210237 of 2021

with Kadwal Police Station, Chhota Udepur for the offence

punishable u/s. 366, 376 (2)(n), 506(2) and 114 of Indian Penal Code

and Sections 3(1)(w), 3(1)(s) and 3(2)(v) of the of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for

short "the Atrocities Act"), wherein learned 2 nd Additional Sessions

Judge, Chhota Udepur rejected the said application on 23.11.2021.

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

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

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

3. However notice was duly served to the first informant, 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

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, FIR is false and

vexatious and is filed in gross abuse of process of criminal law

against the present appellant. That name of the present appellant is

not there in the FIR. Name of the appellant was transpired from the

statement of the original accused and as per the law, statement

before the Investigating Officer is not admissible in the court of law.

That appellant has never abused nor threatened the complainant or

any other person and the allegation to that effect in the impugned

FIR is vague and false and just in order to harass the family of the

accused No.1, the present appellant has been arraigned as the

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

accused. That, present appellant is unnecessarily dragged into the

present offence. That, the appellant is the lady accused and aged

about 31 years old. It is further submitted by learned advocate for

the appellant that co-accused persons have been released on bail by

this Court. Hence, it was requested 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 and submitted

that prima facie, offence was clearly made out against the present

appellant. Therefore, no prayer may be granted by this Court for

enlarging her on anticipatory bail. Ultimately, learned APP for the

State has requested to dismiss the present appeal. As the respondent

No.2 remained absent, no arguments was advanced.

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

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

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.

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

consequently we hold that direction no.(v), also vanishes. The other

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.

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

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

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

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 considered the facts of the case as well as arguments

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

appellant is wife of the original accused no.1. As per allegation made

in the complaint by the respondent no.2 herein, the prosecutrix was

tried to escape from the custody of the accused no.1, at that time she

was caught by the present appellant and she was not permitted to be

free from the custody. No other allegations were made in the

complaint by the respondent no.2 herein. On the contrary, it appears

that Deputy Superintendent of Police, S.C./S.T. Cell, Chhota

Udepur, in his report dated 12.10.2021, has suggested to delete the

name of the present appellant from the FIR and suggested to treat the

appellant as a star witness of the prosecution. Other co-accused

persons namely Ajay Jentibhai Bariya was also released on regular

bail by this Court (Coram: Hon'ble Mr. Justice Umesh A. Trivedi) in

Criminal Appeal No.1213 of 2021 vide order dated 25.10.2021 and

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

co-accused persons namely Bhopatbhai Somabhai Kanasiya and

others were released on anticipatory bail by this Court (Coram:

Hon'ble Mr. Justice Umesh A. Trivedi) in Criminal Appeal No.954

of 2021 with Criminal Appeal No. 1223 of 2021 vide order dated

25.10.2021.

11. 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

as well as considering the ground of parity, this Court is inclined to

accept the prayer made by present appellant.

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

impugned judgment and order dated 23.11.2021 passed in Criminal

Misc. Application No. 724 of 2021 by learned 2 nd Additional

Sessions Judge, Chhota Udepur 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;

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

(b) shall remain present at concerned Police Station on 10.01.2022 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;

(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;

13. 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

R/CR.A/1848/2021 ORDER DATED: 03/01/2022

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.

14. 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