Gujarat High Court

Chaganbhai Revjibhai Bariya vs State Of Gujarat on 4 January, 2022

Bench: B.N. Karia

     R/CR.A/1885/2021                                ORDER DATED: 04/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1885 of 2021

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                          CHAGANBHAI REVJIBHAI BARIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
M S PADALIYA(7406) for the Appellant(s) No. 1,2
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 : 04/01/2022

                                  ORAL ORDER

1. Present appellants filed Criminal Misc. Application No. 507 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 appellants on anticipatory bail on account

of offence being registered vide C.R. No.11184004210237 of 2021

with Kadwal Police Station, Dist-Chhota Udepur for the offence

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

and Sections 3 (1)(S), 3(2)(V) and 3 (1)(W) of the Scheduled Caste

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

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

Judge, Chhota Udepur rejected the said application on 10.08.2021

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2. Feeling aggrieved by the said order, appellants have preferred

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

3. However notice was duly served to the respondent No.2, she

was not remained present either in person or through an advocate to

contest this criminal appeal.

4. Heard learned advocate for the appellants and learned APP for

the respondent-State.

5. It is submitted by learned advocate for the appellants that

present appellants are innocent person and have not committed any

offence as alleged in the FIR. That there is no prima facie evidence

against the present appellants, which would connect them with crime

in question and they are falsely involved on the basis of suspicion

only. It is further submitted that story narrated in the FIR is a got up

one and highly improbable. That FIR was lodged after delay of one

and half month of the alleged incident without any satisfactory

explanation for the delay with mala fide intention/motive only to

harass and pressurize the appellants. It is further submitted that as

per the case of the prosecution, accused No.1 took her on his

motorcycle and thereby she was taken to different places and was

being raped by the accused No.1. That she was forced. by the

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accused No.1 to sign a deed of live in relation on 29.05.2021, and

thereafter, her father filed the complaint before the police wherein

she was to remain present before the police on 18.06.2021 along

with accused no.1. It is further submitted that all the allegations are

levelled against the accused No.1 with whom complainant, had

entered into an agreement of "live in relation" and with whom

compromise was arrived and thereafter, accused No.1 did not honor

it. Impugned FIR was lodged upon the pressure of her parents and

other elderly persons of her community. It is further submitted that

all the family members are arraigned as an accused by making

baseless allegations just to pressurize the accused No.1. It is further

submitted that appellant had never abetted the accused No.1 in any

kind of abetment. That complainant and accused No.1 was in love

affairs however accused No.1 was married man and complainant

was agreed to reside with him in "live in relation" wherein consent

of wife of accused No.1 was also obtained by both the parties. It is

further submitted that both the appellants are wrongly involved in

the offence, however, learned trial court has not considered the

submissions of the appellants in its true and perspective while

rejecting the application of the appellant. Hence, it was requested by

R/CR.A/1885/2021 ORDER DATED: 04/01/2022

learned advocate appearing for the appellants to quash and set aside

the impugned judgment and order dated 10.08.2021 passed in

Criminal Misc. Application No. 507 of 2021 by learned 2 nd

Additional Sessions Judge, Chhota Udepur and requested to allow

present criminal appeal.

6. From the other side, learned APP appearing for the

respondent-State submitted that prima facie involvement of present

appellant is clearly made out by the prosecution. That present

appellants are the main abettor of the accused no.1 against whom

allegations of rape are made by the complainant herself in her

complaint. Referring the complaint produced on record, it is

submitted that prima facie involvement of the present appellants is

clear and name of the appellants are already mentioned in the

complaint as an accused person. That serious offence is committed

by the present appellants and if the prayer would be accepted by the

court granting anticipatory bail to the appellants, there would be an

adverse effect on the society. Hence, it was requested by learned

APP for the respondent-State to dismiss this criminal appeal and

confirm the impugned judgment and order dated 10.08.2021 passed

in Criminal Misc. Application No. 507 of 2021 by learned 2 nd

R/CR.A/1885/2021 ORDER DATED: 04/01/2022

Additional Sessions Judge, Chhota Udepur

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

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 appellants 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

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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.

9. 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 intentionally

insulted or intimidated by the accused with intent to humiliate in a

place within public view.

10. Having heard learned advocate appearing for the appellants as

well as learned APP appearing for the respondent-State and perusing

the record produce before this Court, it appears that, two accused

persons namely Bhopatbhai Somabhai Kanasiya and Navalbhai

Chhedbhai Bariya approached this Court by way of Criminal Appeal

No.954 of 2021 with Criminal Appeal 1223 of 2021. After hearing

both the parties, this Court was pleased to enlarge them on

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anticipatory bail vide order dated 25.10.2021. Similar allegations

were made against two accused persons who were released on bail

by this court vide order dated 25.10.2021. From the entire FIR, only

allegations are made against the present appellants in a nature of

abetment to the accused No.1. No further allegations of committing

any rape or kidnapping the prosecutrix are made in the complaint by

the respondent No.2. However, respondent No.2 is duly served with

the notice, she has not chosen to remain present before this Court to

contest this appeal and remained absent. Looking to entire FIR,

documents produced on record, main allegations are made against

the accused no.1 only by the original complainant who lived in

"live-in-relation". Accused No.1 as well as the prosecutrix were

major. It further appears that compromise was also arrived at

between the parties, and thereafter, it was not complied with by the

accused No.1, and thereafter, this complaint was lodged. From the

contents of the FIR, it can be said that present appellants can not be

said to have knowledge that main accused have committed an

offence as alleged by the proseuction. This Court is of the

considered view that prayer made by the present appellants requires

consideration.

R/CR.A/1885/2021 ORDER DATED: 04/01/2022

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

impugned judgment and order dated 10.08.2021 passed in Criminal

Misc. Application No. 507 of 2021 by learned 2 nd Additional

Sessions Judge, Chhota Udepur 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 appellants:-

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 11.01.2022 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;

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(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 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

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

accordance with law. It is clarified that the appellants, even if,