Gujarat High Court

Tushar Anilgiri Goswami vs State Of Gujarat on 4 January, 2022

Bench: B.N. Karia

       R/CR.A/1242/2020                                    ORDER DATED: 04/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/CRIMINAL APPEAL NO. 1242 of 2020

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                              TUSHAR ANILGIRI GOSWAMI
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE(3764) 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. 5703

of 2020 before the Court of learned 7 th Additional Sessions Judge,

Fast Track Special Court, Surat. 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.11210025204739 of 2020 with Limbayat Police Station, Surat

for the offence punishable u/s. 452, 323, 294(b), 506(2), 143, 144,

147, 149 and 427 of Indian Penal Code and Section 3(2)(5-a) of the

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

1989 (for short "the Atrocities Act"), wherein learned 7th Additional

Sessions Judge, Fast Track Special Court, Surat rejected the said

R/CR.A/1242/2020 ORDER DATED: 04/01/2022

application on 23.11.2020.

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

present criminal appeal under Section 14 of the Atrocities Act.

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

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 son

of the complainant has taken away the sister/daughter of the present

appellants, and therefore, a criminal complaint of not being able to

find them was filed by the complainant and family of the appellants.

That normal written conversation was happened in order to know the

whereabouts of the sister/daughter of the appellants and as a result in

order to save his son from the offence from getting registered against

him, this complaint was filed against the present appellants and their

father. It is further submitted that in the entire FIR, there are general

allegations against the appellants of beating the complainant and

other family members with kick and fists blows by issuing a threat.

That appellants are falsely implicated in the alleged offence by the

R/CR.A/1242/2020 ORDER DATED: 04/01/2022

complainant. It is further submitted that essential ingredients of the

alleged offence are not being satisfied against the appellants. That

appellants are the permanent resident of Surat and have immovable

property therein and they are not likely to run away in any case. That

appellants have no criminal antecedents, and therefore, also they are

entitled to claim for bail. Hence, it was requested by learned

advocate for the appellants to allow this appeal by quashing the

impugned dated 23.11.2020 passed in Criminal Misc. Application

No. 5703 of 2020 by learned 7th Additional Sessions Judge, Fast

Track Special Court, Surat and release the appellants on bail in the

case of their arrest in connection with the offence registered against

them as prayed for.

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

respondent-State has strongly objected the submissions made by

learned advocate for the appellants and submitted that prima facie

both the appellants are involved in the offence. Referring certain

statements recorded by the investigating agency, it is submitted that

however the appellants were known that complainant was a member

from the Schedule Caste and Schedule Tribes, they intentionally

entered in the house of the complainant and damaged the property

R/CR.A/1242/2020 ORDER DATED: 04/01/2022

lying with the house of the complainant. It is further submitted that

there are some eye witnesses whose statements are recorded by the

investigating agency. That ingredients as alleged by the prosecution

are clearly established at this juncture, and therefore, this court may

not interfere in the order passed by the trial court. Hence, it was

requested by learned APP appearing for the respondent- State to

dismiss the criminal appeal.

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 spoken

alleging someone caste would not involve the present appellants in

the offence. There are no specific allegations made by the

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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

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 for the appellants and learned

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APP for the respondent-State, it appears that alleged incident was

taken place as per the complaint on 22.10.2020 and complaint was

filed on 31.10.2020. As per the averments made in the complaint by

the respondent No.2, his son namely Amit eloped with the daughter

of the appellant No.1 and sister of the appellant No.2 as they were in

love affair. The complaint was filed about missing of their daughter

before the police by the present appellants and opposite party of

missing their daughter/sister. As per the averments made in the

complaint, father of the present appellant No.2 and husband of the

appellant No.1 along with present appellants frequently visited the

house of the complainant and started dispute. On 31.10.2020, at

about 4:00 p.m. when the complainant was at his home, both the

appellants alongwith their father entered in the house and inquired

that where is their daughter Neha as she was kidnapped by the son of

the complainant. As per the allegations, thereafter, they abused

certain language and gave kick and fists to the complainant. Wife

and daughter of the complainant saved him. Meanwhile four to six

members entered in the house, and therefore, complainant and his

family members stopped the lock of a room. The persons remained

in the house damaged some property of the complainant as narrated

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in the complaint. It appears from the complaint that there are no

specific allegations made by the complainant-respondent No.2

against any of the accused person that who has caused any damage

to the property of the complainant. The panchnama prepared by the

Investigating Agency referred by learned APP, some property of the

complainant was damaged. Without any specific allegations made by

the complainant, at this juncture, present appellants cannot involved

in the offence.

11. If we refer Section 3(5) (A) of the Act, it must be within

knowledge of the accused person that such person is a member of

Schedule Caste or Schedule Tribe or such property belongs to such

member. It is nowhere alleged by the complainant that the accused

persons were having knowledge that the complainant was the

member of Schedule Caste or Schedule Tribe or such property

belongs to such member. In absence of any specific allegations to

attract Section 3(5) (A) of the Act, case of the prosecution cannot be

believed at this juncture. Considering the schedule prescribed under

the Act and the facts of the case, the prayer made by the present

appellants requires consideration.

R/CR.A/1242/2020 ORDER DATED: 04/01/2022

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

impugned judgment and order dated 23.11.2020 passed in Criminal

Misc. Application No. 5703 of 2020 by learned 7 th Additional

Sessions Judge, Fast Track Special Court, Surat 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 Limbayat Police Station, Surat 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;

R/CR.A/1242/2020 ORDER DATED: 04/01/2022

(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,