Gujarat High Court

Rameshbhai Khalpabhai Chaudhary vs State Of Gujarat on 28 June, 2022

Bench: Nikhil S. Kariel

       R/CR.A/445/2022                                ORDER DATED: 28/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 445 of 2022

                                       With
                         R/CRIMINAL APPEAL NO. 634 of 2022
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                     RAMESHBHAI KHALPABHAI CHAUDHARY
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR ANKUR Y OZA(2821) for the Appellant(s) No. 1
KHUSHBU H DANECHA(7099) for the Opponent(s)/Respondent(s) No. 2
MR LB DABHI, ASSISTANT PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date : 28/06/2022

                                   ORAL ORDER

1. Heard learned Advocate Mr. Ankur Y. Oza for the appellant in

Criminal Appeal No. 445 of 2022 and learned Advocate Mr. Manav A.

Mehta for the appellant in Criminal Appeal No. 634 of 2022.

2. Rule. Learned APP Mr. Dabhi waives service of rule on behalf of

the respondent-State.

3. The appellants before this Court being accused no. 1 and 3 of FIR

being C. R. 11199005211362 of 2021 registered with the Netrang Police

Station, Dist. Bharuch on 25.11.2021 for the offences punishable under

Sections 406, 420, 506(2) and 114 of Indian Penal Code and under

R/CR.A/445/2022 ORDER DATED: 28/06/2022

Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act have preferred this appeal, inter alia

seeking to be released on anticipatory bail.

4. The appellants having initially approached the learned Sessions

Court, praying for the very selfsame relief of being released on

anticipatory bail, having not succeeded before the learned Sessions Court,

has approached this Court.

5. Learned Advocates for the appellants on instructions states that the

appellants are ready and willing to abide by all the conditions including

imposition of conditions with regard to powers of Investigating Agency

to file an application before the competent Court for their remand. They

would further submit that upon filing of such application by the

Investigating Agency, the right of appellants-accused to oppose such

application on merits may be kept open.

6. Learned Additional Public Prosecutor appearing on behalf of the

respondent - State has opposed grant of anticipatory bail looking to the

nature and gravity of the offence. It was, therefore, prayed that no

discretion may be exercised in favour of the appellants.

R/CR.A/445/2022 ORDER DATED: 28/06/2022

7. Having heard the learned Advocates for the respective parties, it

appears that the father of the first informant had purchased a tractor prior

to the year 1999 and whereas it is alleged that on 22.10.1999, the officers

of the bank including the appellant of Criminal Appeal No. 445 of 2022

had repossessed the vehicle and whereas it is further alleged that at that

relevant point of time the father of the first informant was informed that if

he pays twenty thousand rupees, with the bank, the tractor would be

released. It is alleged that though the said amount had been deposited, the

tractor had not been released and whereas later on it was realized that the

tractor had been sold to somebody else. Leveling such allegations, the

FIR in question had been registered.

7.1. It appears that the bank in addition to having repossessed the

tractor in question after the first informant or his father, had not paid the

installments with the bank regularly and whereas it was the said tractor

was subsequently sold for sixty five thousand rupees and the amount was

adjusted towards the outstanding dues of the defendants. It also appears

that the bank in question of which the appellants before this Court were

the then manager and the present manager, had also issued demand

notices to the first informant in the year 1999-2000 and 2006. It also

appears that the bank had initiated proceedings before the learned Debt

Recovery Tribunal, Ahmedabad against the first informant and his family

members and whereas the Learned Debt Recovery Tribunal vide

R/CR.A/445/2022 ORDER DATED: 28/06/2022

judgment and order dated 15.03.2010 had directed the defendants to pay

to the bank an amount of Rs. 13,18,673/-. It would also be pertinent to

mention here that the fact of the tractor having been sold etc. is also noted

by this Court relying upon order passed by the learned Debt Recovery

Tribunal.

7.2. Having regard to the same, it appears that the appellants

before this Court, more particularly, appellant of Criminal Appeal No.

445 of 2022 was discharging his duties as manager of the bank in

repossessing the vehicle. Furthermore, it appears that there is no

allegation against the appellant of Criminal Appeal No. 634 of 2022,

more particularly, the said appellant being the present manager of the

bank in question. It further appears that the FIR is filed, stating

incomplete facts and whereas as noted herein above, the tractor had been

repossessed and sold since the amount of loan taken by the first informant

and his family members was not repaid to the bank. The aspect having

taken place in the year 1999 and whereas the first informant having not

done anything for more than 2 decades and in the FIR in the year 2010

the Debt Recovery Tribunal also passing an order against the first

informant and his family members, are primafacie good grounds that

could be considered by this Court, in allowing the present appellants. It is

further noted that there are no averments in the FIR, from which any

offence punishable under the Scheduled Castes and Scheduled Tribes

R/CR.A/445/2022 ORDER DATED: 28/06/2022

(Prevention of Atrocities) Act could be invoked, furthermore, appellant of

Criminal Appeal No. 445 of 2022 also belonging to the same community

even otherwise FIR alleging offences punishable under Atrocities Act

may not be maintainable.

8. This Court has also taken into consideration the law laid down by

the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre

Vs. State of Maharashtra and Ors., reported in [2011] 1 SCC 694,

wherein the Hon'ble Apex Court reiterated the law laid down by the

Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors.

Vs. State of Punjab, reported in (1980) 2 SCC 565. This Court has also

taken into consideration the recent decision of the Apex Court in the case

of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another

reported in (2020) 5 SCC 01.

9. In the result, the present appeals are allowed by directing that in the

event of appellants herein being arrested pursuant to the 11199005211362

of 2021 registered with the Netrang Police Station, Dist. Bharuch, the

appellants shall be released on bail on furnishing a personal bond of

Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount,

on the following conditions:

(a) shall cooperate with the investigation and make himself

R/CR.A/445/2022 ORDER DATED: 28/06/2022

available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on

01.07.2022 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 him 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 or

till further orders;

(f) shall not leave India without the permission of the Court

and, if having passports shall surrender the same before the

Trial Court within a week.

10. Despite this order, it would be open for the Investigating Agency to

file an application for police remand of the appellants to the competent

Magistrate, if he thinks it just and proper and learned Magistrate would

decide it on merits. The appellants shall remain present before the learned

R/CR.A/445/2022 ORDER DATED: 28/06/2022

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.

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.