Gujarat High Court

Kishanbhai Bhupendrasinh Parmar vs State Of Gujarat on 17 January, 2022

Bench: B.N. Karia

    R/CR.A/1110/2021                                ORDER DATED: 17/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1110 of 2021
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                   KISHANBHAI BHUPENDRASINH PARMAR
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MR. KULDEEP D VAIDYA(7045) for the Opponent(s)/Respondent(s) No. 2
MR.HARDIK SONI, APP (2) for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 17/01/2022

                                 ORAL ORDER

Present appellants filed Criminal Misc. Application No. 783

of 2021 before the Court of learned Special Judge (Atrocity ) & 3 rd

Additional Sessions Court, Ahmedabad u/s 438 of the Code of

Criminal Procedure, 1973 requesting to enlarge the appellants on

anticipatory bail in the event of their arrest on account of offence

being registered vide C.R. No.11204017210334 of 2021 with

Chaklashi Police Station, Dist. Kheda for the offence punishable

u/s. 323, 504, 506(2) and 114 of the Indian Penal Code and u/s.3

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

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

Act") wherein, the learned 3rd Additional Sessions Judge & Special

Atrocity Judge, Nadiad rejected the said application vide order dated

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

29.7.2021.

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 appellants has submitted that the

appellants are innocent persons and are falsely implicated in the

alleged offence. That, the complaint filed by the complainant with

prejudicial mind and with a view to harass the appellants. That, no

offence whatsoever have been established which attracts the sections

of Atrocity Act. That, the incident was occurred on 18.7.2021 at

about 7.15 in the evening and FIR was lodged on 19.7.2021 at about

21.15 in the night and there was no any explanation coming in FIR

for late filing of the FIR which itself speaks that no incident as

alleged was taken place. That, alleged incident was taken place in

society whereas, learned Special Atrocity Court observed that

alleged incident was taken place outside the society. That,

respondent No.2 has used his weapon of Atrocity against the present

appellants. Hence, it was requested by learned advocate for the

appellants to enlarge the present appellants on anticipatory bail in

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

the event of their arrest.

From the other side, learned APP for the respondent -State as

well as learned advocate for the respondent No.2 have opposed the

prayer made by the appellants and submitted that complaint itself

shows that prima facie case is made out against the present

appellants by the prosecution. That, appellant No.1 insulted with

intention to the complainant many of times i.e. on 16 th July, 2021 &

18th July, 2021. That, threat was given by the appellants to kill them

by Dhariya. That, offence was committed by the present appellants

with intend to humiliate respondent No.2, who is member of

Scheduled Caste or Scheduled Tribes, in any place within the

public view. That, no prayer in nature of anticipatory bail can be

granted to the present appellants, considering their involvement

made by the prosecution. That Section 18A of the Act clearly bars

to grant of anticipatory bail as prayed by the present appellants.

Therefore, no prayer may be granted by this Court for enlarging

them on anticipatory bail. Ultimately, learned APP for the State as

well as learned advocate for the respondent No.2 have requested to

dismiss the present appeal.

If we consider the judgment of Hon'ble Supreme Court

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

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 appellants 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

directions remained as it is as there is no bar in granting anticipatory.

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

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 considered the facts of the case, police papers and

submissions made by learned advocate appearing for the respective

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

that offence was registered under Sections 323, 504, 506(2) and 114

of the Indian Penal Code and u/s.3(1)(r), 3(1)(s), 3(2)(va)of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity)

Act, 1989 (for short "the Atrocity Act"). It also appears that as per

allegations made in the complaint against the present appellants,

accused No.1 informed the complainant that they were from lower

caste and they cannot be permitted to be arraigned in the FIR. It also

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

appears that complainant scolded them and therefore, keeping

grievance by the accused No.2 abusive language was used by the

accused No.2 to the mother of the complainant saying that

appellants would face consequences in staying the society. There

was scuffle with the accused No.2. It also appears that slap was

given to witness namely Hiteshbhai. It appears from the complaint

that there were three incident taken place alleging humiliate the

complainant or intimidate in the first part of the complaint and there

was no date. Second incident was taken place on 16 th July, 2021

but, dispute was settled between the parties. Third incident was

allegedly to have been taken place on 18th July, 2021 when the

appellant No.2, who is father of the appellant No.1, came to the

house of his daughter, at that time, mother of the complainant was

sitting outside the house, and appellant No.2 used abusive language

and issued threat to kill mother of the complainant and dare

consequences in staying the society. From the entire complaint, it is

nowhere stated by respondent No.2 that intentionally complainant or

mother was insulted or intimidated with an intention to insult or to

humiliate the respondent No.2 being member of Scheduled Caste or

Scheduled Tribes in any place within a public view.

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

The decision of the Hon'ble Apex Court in Criminal Appeal

No. 1311 of 2008 has referred Section 3(1)(x) of the Act which

reads as under:-

3(1) Whoever, not being a member of Scheduled Caste or a Scheduled

Tribes:-

(x)intentionally insults or intimidates with intent to humiliate a member

of a Scheduled Caste or a Scheduled Tribe in any place within public

view.

In absence of any basic ingredients of the Act, no case is made

out as alleged against the present appellants. Therefore, considering

the decision rendered in the aforesaid citations, present appeal

deserves consideration.

In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 29.7.2021 passed in Criminal

Misc. Application No. 783 of 2021 by learned 3 rd Additional

Sessions Judge and Special Atrocity Judge, Nadiad is hereby

quashed and set aside. The appellants are ordered to be enlarged on

bail in the event of their arrest on furnishing a bond of Rs. 10,000/-

(each) with surety of like amount on the following conditions that

the appellant:-

(a) shall cooperate with the investigation and make himself available

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

for interrogation whenever required;

(b) shall remain present at concerned Police Station on 24.1.2022 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;

(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 appellants. The appellants 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

R/CR.A/1110/2021 ORDER DATED: 17/01/2022

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