Gujarat High Court

Lagdhirbhai Ishwarbhai Rabari vs State Of Gujarat on 24 March, 2022

Bench: B.N. Karia

    R/CR.A/548/2021                                 ORDER DATED: 24/03/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 548 of 2021
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                      LAGDHIRBHAI ISHWARBHAI RABARI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR PARTHIV A BHATT(5331) for the Appellant(s) No. 1,2,3
BHAVIN B THAKAR(9371) for the Opponent(s)/Respondent(s) No. 2
D H KANTHARIYA(7505) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 24/03/2022

                                ORAL ORDER

Learned advocate for the appellants does not press this appeal

qua appellant No.1- Lagdhirbhai Ishwarbhai Rabari and seeks

permission to withdraw this appeal qua appellant No.1.

Permission as sought for, stands granted.

Present appeal stands disposed of as withdrawn qua appellant

No.1.

Present appellant Nos. 2 & 3 filed Criminal Misc. Application

No. 1172 of 2021 before the Court of learned 7 th Additional District

& Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad u/s

438 of the Code of Criminal Procedure, 1973 requesting to enlarge

the appellants on anticipatory bail in the event of their arrest on

account of offence being registered vide C.R. No.Part-A-

      R/CR.A/548/2021                                 ORDER DATED: 24/03/2022



11191020210150 of 2021             with         Vastrapur Police Station,

Ahmedabad          for the offence punishable u/s. 324, 337, 294(B), 114

of the Indian Penal Code and under Section 135(1) of the G.P.Act as

well as u/s.3 (1)(r), 3(1)(s), 3(2)(5-a)of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short

"the Atrocity Act") wherein, the learned 7th Additional District &

Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad

rejected the said application vide order dated 8.4.2021.

Feeling aggrieved by the said order, the appellant Nos. 2 and 3

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 Nos. 2 and 3 has submitted

that the appellant Nos. 2 and 3 are innocent persons and are falsely

implicated in the alleged offence. That, bare perusal of the

impugned FIR which is filed by the applicant No.1 against the

complainant and other two persons reflect that the incident has been

occurred on behest of complainant and not by the present accused

persons, in fact, it appears that it is a case of self defence but, said

aspect has been not considered at the time of rejecting the bail

R/CR.A/548/2021 ORDER DATED: 24/03/2022

application. That, accused persons have filed the impugned FIR prior

in time with the Vastrapur Police Station despite that the police has

not registered at relevant point of time. Hence, it was requested by

learned advocate for the appellants to enlarge the present appellants

on anticipatory bail in the event of their arrest.

From the other side, learned APP for the respondent -State as

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

prayer made by the appellant No. 2 and 3 and submitted that both

the appellants have abated accused No.1 Lagdhirbhai Ishwarbhai

Rabari. That, appellant- Lalabhai had assaulted the complainant

and injured him on the left shoulder. That appellant- Anilbhai also

thrown a stone lying nearby him which caused injuries on the

forehead of the complainant. Therefore, bleeding was also oozing.

Thereafter, 2nd time, stone was thrown by appellant -Anilbhai to the

cousin namely Chetanbhai who is also injured right leg. That,

serious injuries was caused to the complainant and he was referred to

Civil Hospital, at Sola for his treatment. Thereafter, it was opined to

refer further treatment at Civil Hospital, Asarwa. That, prima facie

involvement of both the appellants are proved by the prosecution

and no liberty can be shown by granting anticipatory bail to the

R/CR.A/548/2021 ORDER DATED: 24/03/2022

present appellants. Therefore, it was requested by learned APP for

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

dismiss the 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

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 appellants 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

R/CR.A/548/2021 ORDER DATED: 24/03/2022

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

to humiliate in a place within public view.

Having considered the facts of the case, police papers and

submissions made by learned advocate appearing for the respective

parties as well as learned APP for the respondent-State, it appears

that FIR was registered against the present appellants with

Vastrapur Police Station on 29.3.2021. It further appears that

accused No.1 namely Lagdhirbhai Rabari has also filed one FIR

R/CR.A/548/2021 ORDER DATED: 24/03/2022

against the complainant and two other persons alleging that incident

has been occurred on behest of the complainant and not by the

appellants. As per submission of the appellant No.2 and 3, it is the

case of self defence but the said aspect was not considered by the

trial Court and rejected the bail application preferred by the present

appellant No.2 and 3. Further it appears that present appellants have

filed their impugned FIR prior in time with the Vastrapur Police

Station despite that police has not registered the complaint at

relevant point of time . Further attract provision of Section u/s.3 (1)

(r), 3(1)(s), 3(2)(5-a) Atrocity Act in this case also appears to be

doubtful, as there is no clear allegations made in the complaint filed

by the respondent No.2 to involve the present appellant Nos. 2 and 3

in the offence. It appears that both the parties have filed cross-

complaint against each other.

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 place within public

R/CR.A/548/2021 ORDER DATED: 24/03/2022

view.

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

out as alleged against the present appellants. Therefore, considering

the decision rendered in the aforesaid citations, present appeal

deserves consideration.

In the result, present Criminal Appeal is allowed qua

appellant No. 2 and 3 and the impugned judgment and order dated

8.4.2021 passed in Criminal Misc. Application No. 1172 of 2021

by learned 7th Additional District & Sessions Judge, Ahmedabad

(Rural), Mirzapur is hereby quashed and set aside qua appellant

Nos. 2 & 3. The appellant Nos. 2 & 3 are ordered to be enlarged on

bail in the event of their arrest on furnishing a bond of Rs. 10,000/-

(each) with surety of like amount on the following conditions that

the appellant Nos. 2 and 3.

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

(b) shall remain present at concerned Police Station on 30.3.2022 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






     R/CR.A/548/2021                                       ORDER DATED: 24/03/2022

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 Nos. 2 and 3. The appellant Nos. 2 and 3 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 Nos. 2 and 3,