Hardik @ Lalo Govindbhai Bhavsar vs State Of Gujarat
2022 Latest Caselaw 896 Guj

       R/CR.A/1108/2021                       ORDER DATED: 28/01/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CRIMINAL APPEAL NO. 1108 of 2021

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          HARDIK @ LALO GOVINDBHAI BHAVSAR
                          Versus
                   STATE OF GUJARAT
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Appearance:
MR SALIM M SAIYED(5172) for the Appellant(s) No. 1
MS BUSRUN M PATHAN(11393) for the Appellant(s) No. 1
MS MAITHILI MEHTA APP for the Opponent(s)/Respondent(s)
No. 1
RULE SERVED BY DS for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                          Date : 28/01/2022

                            ORAL ORDER

1. Present appellant filed Criminal Misc. Application No. 5060 of 2021 before the Court of learned Special Judge (Atro.), Court No. 17, Ahmedabad City u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail on account of offence being registered vide C.R. No. 11191035211221 of 2021 for the offence punishable u/s. 294(b), 506(1), 120(b) of the Indian Penal Code and U/s. 3(1)(p), 3(1)(q), 3(1)(r), 3(1)(z) and 5 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned Special Judge (Atro.), Court No. 17, Ahmedabad City rejected the said application on 14.07.2021.

2. Feeling aggrieved by the said order, appellant has preferred present appeal under Section 14(A) of the Atrocities Act.

R/CR.A/1108/2021 ORDER DATED: 28/01/2022

3. As per the report dated 23.12.2021 of the Registrar, City Civil and Sessions Court, Bhadra, Ahmedabad, notice is duly served to the respondent No.2 but when the matter was called out, nobody appeared for and on behalf of the respondent No.2 to contest this criminal appeal.

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

5. Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence and appellant is not connected in any manner whatsoever with the alleged commission of offence. That, FIR is false and vexatious and is filed in gross abuse of process of criminal law against the present appellant. That the false implication of the appellant in the FIR is manifestly attended with mala fide intention. That FIR has been lodged maliciously with an ulterior motive of harassing the appellant even though the appellant has not committed any offence and in fact the appellant has been made victim of conspiracy. The allegations levelled in the complaint do not make out any case under the Atrocities Act against the appellant and it has been registered maliciously only on account of wreaking vengeance and for satisfying personal grudge as it is evident from the record of the police station itself that the complainant is a habitual in making frivolous and false complaints. That, keeping the grudge, on account of the above complaint as well as the grudge, the impugned FIR has been filed against the appellant only with a view to taking vengeance and by way of misusing the law of Atrocity Act. Hence, it was requested by learned advocate for the appellant to allow present criminal appeal.

R/CR.A/1108/2021 ORDER DATED: 28/01/2022

6. Opposing this prayer made by the learned advocate for the appellant, learned APP for respondent - State has submitted that the present appellant has intentionally insulted with intent to humiliate respondent No.2 being a member of Scheduled Caste and Scheduled Tribe in any place within public view. That the appellant has tried to apply his force against the respondent No.2 to leave his house in the village, and therefore, prima facie appellant is involved in committing the offence. It is further submitted that role played by the co- accused persons, who are released on anticipatory bail by the Sessions Court concerned is quite different. Therefore, no benefit of parity can be granted to this appellant. Prima facie involvement of the appellant is made out by the prosecution. 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 alleging someone caste would not involve the present appellant 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

R/CR.A/1108/2021 ORDER DATED: 28/01/2022

Sections 3(1)(p), 3(1)(q), 3(1)(r), 3(1)(z) and 5 of "the 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 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 considered the facts of the case as well as arguments advanced by learned APP for the respondent-State, it appears that complainant / respondent No.2 has lodged this complaint on 17.06.2021 alleging that he is residing with his parents and is a practicing advocate. Previously, on 18.05.2018 he had lodged atrocity complaint against all the accused persons, and therefore, keeping grudge against the complainant and his caste and for torturing him to pressurize for compromise, Prabhu @ Kantesh used derogatory words

R/CR.A/1108/2021 ORDER DATED: 28/01/2022

against the complainant on 12.03.2021 and present appellant also used derogatory words and threatened him to kill, and therefore, the FIR was registered. It further appears from the record that co-accused persons namely Kalpanaben, Ripalben and Divyaraj are released on anticipatory bail vide order dated 12.07.2021 in Criminal Misc. Application No. 4775 of 2021 by the learned Special Judge (Atro.), Court No. 17, Ahmedabad City and application qua the present appellant was withdrawn. Thereafter, he had again approached the learned Special Judge (Atro.), Court No. 17, Ahmedabad City by filing Criminal Misc. Application No. 5060 of 2021, which was also rejected on 14.07.2021.

11. It also appears that on 16.03.2021, present appellant has filed one complaint against Shri Rajendra Marwadi for the offences punishable under Sections 323, 294(b) and 506(2) of the Indian Penal Code (referred to as 'IPC' in short) before the Naroda Police station on 17.03.2021. Keeping the grudge, on account of the aforesaid complaint filed by the present appellant, there is no reason to believe that impugned FIR has been filed against the present appellant with a view to seeking the vengeance. If we refer Sections 3(1)(p), 3(1)(q), 3(1)(r), 3(1)(z) and 5 of "the Act", none of the ingredients are clearly established or averred in the complaint filed by the respondent No.2

12. Considering the involvement of the present appellant and allegations made in the complaint, in absence of any specific ingredients of "the Act", and the other co-accused persons are released on anticipatory bail by the Sessions Court concerned, as discussed above, prayer made by the present appellant requires consideration.

R/CR.A/1108/2021 ORDER DATED: 28/01/2022

13. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 14.07.2021 passed in Criminal Misc. Application No. 5060 of 2021 by learned Special Judge (Atro.), Court No. 17, Ahmedabad City is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs.10,000/- with surety of like amount on the following conditions that the appellant:-

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

(b) shall remain present before the Investigating Officer of the concerned Police Station on 04.02.2022 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;

(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

R/CR.A/1108/2021 ORDER DATED: 28/01/2022

(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;

14. 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.

15. 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 appellant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

16. 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.

17. Notice stands discharged. Direct service is permitted.

(B.N. KARIA, J.) Raj S. Dhobi