Jagabhai S/O Veshibhai Thakore vs State Of Gujarat
2022 Latest Caselaw 592 Guj

      R/CR.A/1133/2021                                    ORDER DATED: 18/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 1133 of 2021
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                          JAGABHAI S/O VESHIBHAI THAKORE
                                       Versus
                                STATE OF GUJARAT
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Appearance:
MR.KISHORE PRAJAPATI(6305) for the Appellant(s) No. 1
MR BURHANUDDIN H DHANGADHRAWALA(9980) for the
Opponent(s)/Respondent(s) No. 2
MR MOHAMMED K VOHRA(10709) 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 : 18/01/2022

                                   ORAL ORDER

The appellant has filed Criminal Misc. Application No. 191 of 2021 before the court of learned Additional Sessions Judge, Banaskantha at Tharad u/s 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on bail after he being arrested on account of an offence being registered vide I- C.R. No.46 of 2016 with Tharad Police Station, Banaskantha for the offence punishable u/s. 395, 365, 323 and 427 of the Indian Penal Code and u/s 504, 506(2) and 114 of IPC and u/s.3(2)(R), 3(2)(5) and 3(2)(5A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "Atrocity Act"), wherein, the learned Additional Sessions Judge, Banaskantha, Tharad dismissed the said application vide order dated 28.7.2021.

Feeling aggrieved by the said order, the appellant has preferred this appeal u/s 14A of the Atrocity Act.

Heard learned advocates for the respective parties.

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It was submitted by learned advocate for the appellant that impugned FIR is the glaring example of misuse of provisions of Atrocity Act. That, impugned FIR is nothing but the counter blast of censuring and hence, appellant is falsely implicated in the alleged offence. That, on 9.3.2016, the appellant arrested by the Police authority and released on regular bail vide order dated 19.3.2016 passed in Criminal Misc. Application No. 92 of 2016 by the ld. Additional Sessions Judge, Banaskantha at Deodar. That, in the year 2018, after completion of investigation and filing of charge-sheet, trial has commenced and numbered as Atrocity Special Case No. 38 of 2018 before the ld.Additional District & Sessions Judge, Banaskantha at Deodar. That, initially the appellant regularly remaining present at Deodar and thereafter, it is transferred to Tharad Court in the May, 2019. That, appellant is not aware about the dates of hearing and he could not remain present and thereafter from March, 2020, the entire country facing pandemic of Covid-19 therefore also appellant could not remain present before the learned trial Court. That, on 22.7.2021, appellant has taken into judicial custody and at present he is in Sub Jail, Tharad. Hence, this is a fit case for granting regular bail to the appellant and requested to grant bail to the appellant.

From the other side, learned APP for the respondent State as well as learned advocate for the respondent No.2 have opposed the submissions made by learned advocate for the appellant and submitted that appellant in the entire appeal has not shown or explained that what illness the appellant had and for what period of time. That, the appellant has not produced a single document,

R/CR.A/1133/2021 ORDER DATED: 18/01/2022

medical report or any prescription of doctor for his so called illness in support of his plea of illness. That, charge-sheet was filed and trial for the said offence registered as I-CR No. 46 of 2016 is commenced vide Atrocity Case No. 38 of 2018. That, as per order dated 19th March, 2016 passed in Criminal Misc. Application No. 92 of 2016, there is clear breach of condition No.3 by the present appellant. That, there is no sufficient ground to accept the prayer made by learned advocate for the appellant. That, present appellant is habitual of remaining absent in the trial and if he is released on bail then he will not co-operate in the trial. Ultimately, learned APP for the respondent-State as well as learned advocate for the respondent No.2 have requested to dismiss present appeal.

Having considered the facts of the case and submissions made by learned advocates appearing for the respective parties and learned Additional Public Prosecutor for the respondent State, it appears that this offence was registered on 9 th March, 2016 against the appellant for the offence punishable u/s. 395, 365, 323 and 427 of the Indian Penal Code and u/s 504, 506(2) and 114 of IPC and u/s.3(2)(R), 3(2)(5) and 3(2)(5A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989. It also appears that other co- accused were released on regular bail vide order dated 19 th March, 2016 in Criminal Misc. Application No. 92 of 2016 by the learned Additional Sessions Judge, Banaskantha at Deodar with certain conditions. As per order passed by this Court on 27 th October, 2021, appellant has produced certified copy of Rojkam in [Special (Atrocity) Case No. 38 of 2017] New Special (Atrocity) Case No. 38 of 2018 pending before the Court of learned Additional Sessions &

R/CR.A/1133/2021 ORDER DATED: 18/01/2022

District Judge, Deodar. It appears that on 24.1.2019, learned advocate appearing for the appellant has filed Vakalatnama before the Sessions Court. Further it appears that on 16 th July, 2018 fresh vakalatnama was submitted by learned advocate for the appellant. Previously, trial was pending before the court of learned 4 th Additional District Judge, Banaskantha, Deodar which was transferred to the court of learned 3 rd Additional District Court (Special Atrocity) vide order dated 19 th November, 2018. From the Rojkam, it appears that for certain period, appellant was not present before the Court below. Therefore, arrest warrant was issued against him. Appellant had given an application on 22th July, 2021 before the court below, which was dismissed by the Court below on the ground that on account of absence of appellant, trial is delayed. Thereafter, appellant approached learned Sessions Judge by preferring an appeal which was also dismissed vide order dated 28 th July, 2021. It also appears that appellant is in judicial custody since July, 2021. Admittedly, appellant was released on bail and trial of the appellant is going on before the learned Sessions Court, Tharad. It also appears that presence of the present appellant in judicial custody is not required. Considering the fact that the appellant was released on bail and while remaining absent for twice or thrice before the trial putting the appellant in judicial custody for indefinite period is not required.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 28.7.2021 passed in Criminal Misc. Application No. 191 of 2021 by learned Additional Sessions Judge, Banaskantha, Tharad is hereby quashed and set aside. The

R/CR.A/1133/2021 ORDER DATED: 18/01/2022

appellant is ordered to be enlarged on bail on furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that the appellant shall:-

(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;

(b) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;

(c) 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;

(d) mark his presence at the concerned police station twice in a month on 1st day and 15 day of each English Calender Month till the trial is over between 9.00 a.m. to 2.00 p.m.

(e) shall remain present before the trial Court at the time of hearing of the trial and shall also co-operate in the proceedings of the trial.

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.

R/CR.A/1133/2021 ORDER DATED: 18/01/2022

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellant on bail.

Direct service is permitted.

(B.N. KARIA, J) BEENA SHAH