Gujarat High Court

Aliakbar Ibrahim Baloch vs State Of Gujarat on 9 March, 2022

Bench: B.N. Karia

    R/CR.A/242/2022                                     ORDER DATED: 09/03/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 242 of 2022
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                          ALIAKBAR IBRAHIM BALOCH
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 09/03/2022

                                ORAL ORDER

Present appellant filed Criminal Misc Application No. 6 of

2022 before the Court of learned 7th Additional Sessions Judge &

Special Judge (Atrocity), Bhachau, Dist. Kutchh 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.11993004210514 of 2021 with

Bhachau Police Station, Dist. Kutchh-East-Gandhidham for the

offence punishable u/s. 142, 143, 147, 148, 149, 323, 324, 294(b),

506(2) of the Indian Penal Code and u/s.3(1)(r), 3(1)(s), 3(2)(va) of

the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocity) Act, 1989 (for short "the Atrocity Act") and Section 135 of

Gujarat Police Act wherein, learned 7th Additional Sessions Judge &

Special Judge (Atrocity), Bhachau, Dist. Kutchh rejected the said

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application vide order dated 15.1.2022.

Feeling aggrieved by the said order, the appellant preferred

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

Heard learned advocate for the applicant and learned APP for

the respondent-State.

Learned advocate for the appellant has submitted that

appellant has nothing to do with said offence. That, the present

appellant has known the complainant and injured person and

therefore, the appellant just went to hospital to ascertain the health

and the name of the appellant was involved in the said offence. That,

the complaint is nothing but is frivolous and vexatious and the

ingredients of the alleged offences are not attracted, therefore, the

same is abused of process. That, the appellant undertakes not to

tamper with the evidence and not to misuse his liberty in any

manner. Hence, it was requested by learned advocate for the

appellant to enlarge the present appellant on anticipatory bail in the

event of his arrest.

Learned APP for the respondent-State has strongly objected

the submission made by learned advocate for the appellant and

submitted that name of the present appellant is disclosed in the FIR

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from the beginning. That, complainant himself is injured in the

offence and admitted in the Government Hospital and at that time

appellant and Mr. Javed Bhatti went to the hospital and threaten the

complainant with dare consequences. That, investigation is under

progress and therefore, prayer made by the present appellant or

story created by the appellant cannot be accepted at this juncture it is

matter of evidence. Ultimately, learned APP for the State has

requested to dismiss the present appeal.

No arguments were advanced by learned advocate for the

respondent No.2, however, notice was duly served to respondent

No.2.

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

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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 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

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was intentionally insulted or intimidated by the accused with intent

to humiliate in a place within public view.

Having gone through the facts of the case and the allegations

made in the complaint as well as impugned order and affidavit of

Investigating Officer, it appears that present appellant went into

Government Hospital at that time as per the allegations made in the

complaint, threat was given along with co- accused Javed Bhatti.

If complainant wanted to file a complaint, he would face dare

consequences. No other allegations made in the complaint by the

respondent No.2. There is nothing on record about any criminal

antecedents against the present appellant. No allegations are made

against present appellant of insulting or intimidated the respondent

No.2 in respect of his caste in a public view. In the complaint also

no allegations are made to attract provisions u/s.3(1)(r), 3(1)(s), 3(2)

(va) of the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocity) Act, 1989 and u/s. 135 of Gujarat Police Act.

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

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Tribes:-

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

of a Scheduled Caste or a Scheduled Tribe in any 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 15.1.2022 passed in Criminal

Misc. Application No. 6 of 2022 by learned 7 th Additional Sessions

Judge and Special Judge (Atrocity). Bhachau, Dist. Kutchh 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 himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 16.3.2022 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

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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

(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

R/CR.A/242/2022 ORDER DATED: 09/03/2022