Gujarat High Court

Virendrasinh Omprakash ... vs State Of Gujarat on 2 March, 2022

Bench: B.N. Karia

       R/CR.A/1291/2020                          ORDER DATED: 02/03/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/CRIMINAL APPEAL NO. 1291 of 2020
                                With
         CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2021
                In R/CRIMINAL APPEAL NO. 1291 of 2020
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                    VIRENDRASINH OMPRAKASH BHADORIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR S M SOJATWALA(3499) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
KAIVAN M DASTOOR(9322) for the Opponent(s)/Respondent(s) No. 2
MS. M.H.BHATT, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 02/03/2022

                              ORAL ORDER

Present appellant filed Criminal Misc. Application No.7197 of

2020 before the Court of learned Additional Sessions Judge, Court

No.18, City Civil & Sessions Judge, Ahmedabad u/s 438 of the

Code of Criminal Procedure, 1973 requesting to enlarge the

appellant on anticipatory bail in the event of his arrest on account of

offence being registered vide C.R. No.11191035202524 of 2020

with Naroda Police Station, Dist. Ahmedabad for the offence

punishable u/s. 406 and 420 of the Indian Penal Code and u/s.3 (1)

(r), of The Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for

short "the Atrocity Act") wherein, the learned Additional Sessions

Judge, Court No.18, City Civil & Sessions Court, Ahmedabad

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

rejected the said application vide order dated 1st December, 2020.

Feeling aggrieved by the said order, the appellant preferred

said appeal u/s 14-A of the Atrocity Act.

Heard learned advocates for the respective parties and learned

APP for the respondent-State.

Learned advocate for the appellant has submitted that on

perusal of the FIR, it appears that the dispute appears to be civil in

nature and criminal colour is given in the said dispute. That,

allegations under the Atrocity Act are not levelled against the

present appellant, and therefore, it is fit case for the indulgence of

this Court. That, if the allegations are assumed to be true, the

present dispute pertains to recovery of money and no ingredients

under the offences alleged are coming out. That, there is a long delay

in filing of FIR. The said aspect clearly goes to show that the

complainant has implicated the present appellant in criminal cases

only to harass the present appellant. That, present appellant is falsely

implicated and there is no need of custodial interrogation of present

appellant in the present case. Hence, it was requested by learned

advocate for the appellant to enlarge the present appellant on

anticipatory bail in the event of his arrest.

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

Learned APP for the respondent State as well as learned

advocate for the respondent No.2 have strongly objected the

submission made by learned advocate for the appellant. Learned

advocate for the respondent No.2 submits that however, out of

Rs.6.00 Lakhs of misappropriation, Rs.5.00 Lakhs is deposited by

the present appellant and he may be further directed to deposit

Rs.1.00 before the Registry immediately, failing which, no prayer

can be allowed by this Court. Hence, learned APP appearing for the

State as well as learned advocate for the respondent No.2 have

requested to dismiss present appeal.

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

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

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 the Atrocity Act.

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.

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.

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

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

to humiliate in a place within public view.

Having heard learned advocate appearing for the respective

parties as well as learned APP for the respondent-State, it is a case

of complainant that in July, 2019, complainant went to see a flat for

purchasing at Shivukti City Flat, at Sardar Patel Ring Road,

Ahmedabad and builder of the said scheme informed him that he

cannot buy the flat since he belongs to Scheduled Caste and further

informed him to contact present appellant for purchase of a flat. It

also appears that he agreed to purchase the flat No. Q/4/403 from

present appellant in Rs.9,00,000/- on 3.7.2019 and paid

Rs.9,00,000/- to present appellant between 3.7.2019 and 20.7.2019

by cash and cheque and it was agreed between them that sale deed

will be executed within a month therefrom. It also appears that on

26.7.2019, present appellant refused to sell the flat to the

complainant and returned Rs.9,00,000/- by handing over four

cheques. That, the case of prosecution is that the said cheques were

bounced because of insufficient balance. Thereafter, present

appellant has paid Rs.3,00,000/- to the complainant and has agreed

to pay remaining Rs.6,00,000/- by way of notarized agreement.

Present appellant has not paid remaining Rs.6,00,000/- to the

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

complainant and has committed fraud. From the entire complaint

lodged by the respondent No.2, prima facie it appears that dispute is

of civil nature and criminal colour is given by the respondent No.2 .

There is no specific allegations made against the present appellant to

attract any provision of Atrocity Act. Respondent No.2 has tried to

recover the amount from the present appellant by filing this

complaint before the police authority. Further, it appears that there

is a long delay in filing complaint by respondent No.2 without any

explanation of delay . Admittedly,appellant has deposited Rs.5.00

Lakhs before the Registry of this Court. Considering the peculiar

facts of the present case and submissions made by learned advocates

appearing for the respective parities, the prayer made by the

appellant is granted.

The decision of the Hon'ble Apex Court in Criminal Appeal

No. 1311 of 2008 has referred Section 3(1)(x) of the Act which

reads as under:-

3(1) Whoever, not being a member of Scheduled Caste or a

Scheduled Tribes:-

(x)intentionally insults or intimidates with intent to humiliate a

member of a Scheduled Caste or a Scheduled Tribe in any

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

place within public view.

In absence of any basic ingredients of the Act, no case is made

out as alleged against the present appellant. Therefore, considering

the decision rendered in the aforesaid citations, present appeal

deserves consideration.

In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 1st December, 2020 passed in

Criminal Misc. Application No. 7197 of 2020 by learned Additional

Sessions Judge, Court No.18, City Civil & Sessions Court,

Ahmedabad 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/- (each) with surety of like amount on the

following conditions that the appellant:-

(a) shall cooperate with the investigation and make himself available

for interrogation whenever required;

(b) shall remain present at concerned Police Station on 10.3.2022 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

R/CR.A/1291/2020 ORDER DATED: 02/03/2022

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

(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;

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.

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,