Maansurbhai Harsurbhai Vavadiya vs State Of Gujarat
2022 Latest Caselaw 786 Guj

    R/CR.A/1992/2021                                    ORDER DATED: 25/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1992 of 2021

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                    MAANSURBHAI HARSURBHAI VAVADIYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR H D KATHAROTIYA(3984) for the Appellant(s) No. 1
YASH P MOHTA(7423) 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 : 25/01/2022

                                   ORAL ORDER

The appellant preferred Criminal Misc. Application No. 230 of 2021 before the Court of learned Additional Sessions Judge, Rajula u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered vide C.R. No.11193062210558 of 2021 with Dungar Police Station, Dist: Amreli for the offence punishable u/s. 323, 324, 325, 504, 506(2) of the Indian Penal Code and u/s. 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), the learned Additional Sessions Judge, Rajula rejected the said application on 03.12.2021.

R/CR.A/1992/2021 ORDER DATED: 25/01/2022

Feeling aggrieved by the said order, the appellant preferred present appeal u/s 14A of the Atrocities Act.

Notice issued by this Court has been duly served to the respondent no.2 as per the report dated 10.01.2022 made by learned Principal District and Sessions Judge, Amreli. Though, today, when the matter was called out, none was present for and on behalf of the respondent no.2 to assist this court in the present appeal.

Heard learned advocate for the appellant and learned APP for the respondent-State.

Learned advocate for the appellant has submitted that the appellant is innocent and has not committed any offence as alleged by the prosecution. That, looking to the FIR and allegations made therein, no prima facie offence has been made out against him. That, due to political rivalry among the members of the panchayat, false and frivolous complaint has been filed against the appellant as he belongs to other political group. That, if the allegations made in the FIR are taken at its face value and accepted in their entirety, prima facie, they do not constitute any offence or make out a case against the appellant. That, the applicant has not participated in occurrence of the incident. That, the version as alleged by the complainant is highly doubtful and there are serious doubts

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with regard to the credibility of the version of the complainant. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order of rejecting the prayer of bail by the appellant and release the appellant on bail.

Learned APP for the respondent-State has strongly objected the arguments advanced by learned advocate for the appellant. That, the appellant is involved in the serious offence and therefore, the learned lower court has rejected the request of the appellant to release him on bail. Referring to the complaint, learned APP has submitted that the provisions of Atrocities are clearly applicable in the facts of the present case as complainant was humiliated and insulted by the present appellant in a public place with a knowledge, and therefore, no lenient view may be taken by this Court to grant the regular bail. Hence, it was requested by learned APP for the respondent-State to dismiss the present appeal.

Having considered the facts of the case, submissions made by learned advocate for the appellant as well as learned APP for the respondent-State, it appears from the complaint that appellant has not abused the complainant by his caste name in any place within public view nor intentionally insulted or intimidated the complainant with any intent to humiliate the complainant of his caste in any place within

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public view.

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.

It also appears from the report submitted by the Investigating Officer dated 25.11.2021 requesting to add Section 325 of the Indian Penal Code in the FIR that complainant has been referred to Mahuva Hanumant Hospital for further treatment and in the MLC certificate issued thereof, nowhere stated that he had been referred for further treatment. As per the submissions made by learned advocate for the appellant, complainant was discharged from the hospital on the very same day and learned APP for the respondent-State has confirmed that complainant was discharged from the hospital and was out of danger. It also appears that the appellant is in judicial custody since 26.11.2021.

Considering the nature and gravity of assertion made against the appellant and in the facts and circumstances of the

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case and considering the nature of allegations made against the appellant in the First Information Report as well as considering the role of present appellant in the alleged offence, this Court is of the considered opinion that this is a fit case to exercise the discretion in favour of present appellant by enlarging him on regular bail and hence, the prayer sought for by the present appellant requires consideration.

Hence, this Court is of the view that present appeal deserves consideration In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 03.12.2021 passed by learned Additional Sessions Judge, Rajula in Criminal Misc. Application No. 230 of 2021 is hereby quashed and set aside.

The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant shall;

[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the

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concerned Trial Court;

[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged.

Registry to communicate copy of this order to the concerned jail authorities as well as concerned Sessions Judge through Fax/E-mail.

(B.N. KARIA, J) K. S. DARJI