Natwarbhai @ Kalu Mahadevbhai ... vs State Of Gujarat
2022 Latest Caselaw 4548 Guj

    R/CR.A/715/2021                                ORDER DATED: 02/05/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 715 of 2021

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               NATWARBHAI @ KALU MAHADEVBHAI PATEL
                              Versus
                       STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
NOTICE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
MS MH BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 02/05/2022

                                ORAL ORDER

The appellant has filed Criminal Misc. Application No. 2516 of 2021 before the Court of learned 9th Additional Sessions Judge, Surat 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. I-11214042210398 of 2021 registered with Olpad Police Station, Dit: Surat Rural for the offence punishable under Sections 323. 324, 326(A), 504, 506(2) and 114 of the Indian Penal Code and Sections 3(1)(r)

(s) and 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned Special Judge (Atrocity) and 9 th

R/CR.A/715/2021 ORDER DATED: 02/05/2022

Additional Sessions Judge, Surat rejected the said application on 12.05.2021.

Feeling aggrieved by the said order, the appellant preferred present appeal u/s 14A of the Atrocities Act.

Heard learned advocate for the appellant and learned APP for the respondent No.1-State.

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, the allegations made in the complaint do not disclose any prima facie case against the present appellant who is falsely implicated into the alleged offence in question. That, there is no iota of evidence against the appellant to even remotely suggest any role whatsoever played by him or connect the appellant with the alleged offence in question. That, the basis ingredients of the offence are missing in the complaint and no offence under the Atrocity Act has been committed by the present appellant. That, specific role of the present appellant was not disclosed in the complaint. That, present appellant is unnecessarily dragged into the present offence. Hence, it was requested by learned advocate for the appellant to allow present appeal.

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From the other side, learned APP for the respondent No.1-State has strongly opposed the prayer made by the appellant and submitted that from the further statements of the witnesses, involvement of the present appellant is clearly made out by the prosecution. It was further submitted that abusive words spoken by the present appellant insulting the witnesses of the offence and prima facie involvement of the present appellant is established by the prosecution. That Section 18A of the Act clearly bars to grant of anticipatory bail as prayed by the present appellant. That, the appellant is involved in the serious offence and therefore, no leniency view can be taken in favour of the appellant. Ultimately, learned APP for the respondent no.1-State has requested to dismiss the present appeal.

However notice was duly served to the respondent no.2, he was not appeared before this court to content this appeal since long, as the matter was time to time adjourned by this court.

Having considered the facts of the case, police papers and submissions made by learned advocate for the appellant as well as learned APP for the respondent No.1-State, it appears from the complaint that on 12 03 2021, the complainant had gone to his work and had returned home at about 2.30 pm and

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thereafter, he along with his wife Bhavnaben had gone to agricultural field at about 4 pm and had returned at 7.30 pm. When the complainant was at the place of Dhirajbhai Maisunya his son Krunal had telephoned him at about 8 30 pm and informed the complainant that when he was coming back from tuition towards home and while he was passing through home of accused no.1 Kamuben, she hurled abusive language and told him as to why he is passing through her house and then the complainant went back home. Thereafter the complainant along with his wife Bhavnaben and son Krunal as also one Dharmendrabhai Vasava and Sukiben Rameshbhas Vasava had gone to the house of accused no.1 to talk. At about 8.45 p.m., Kamuben was asked to come out of her home where accused nos.2 and 3 were also present and when she was asked as to why she hurled abusive language to Krunal they all started quarreling and hurling abusive language. During this time, accused no.1 came with Acid bottle at her door and threw acid on the complainant who got injured on chest part and acid drops also fell on left eye and left finger. Moreover, Bhavnaben also got injured with acid as also Dharmendrabhai and Sukiben and accused no.3 gave a stick blow to Bhavnaben on head part and she fell down with bleeding. That, accused no.2 also gave fist cuffs to complainant and then other intervened and all were separated and then the complainant

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and his wife and 2 others were treated. It further appears that before about 3 months, the accused persons had a dispute with brother of Dharmendrabhai over goat grazing which was settled among them and thus, out of grudge of that dispute, the accused persons have committed the present offence and thus, upon the aforesaid allegation, a police complaint came to be registered. From the contents of the complaint, it appears that the name of the accused persons were disclosed in the FIR. Accused persons were arrested and as per submissions of learned advocate for the appellant, they are released on regular bail by the competent court. From the statements of the witnesses, the name of the appellant came to be disclosed by way of improvement and thereafter, the investigation officer has made a report on 15.03.2021 before the trial court seeking addition of charges of Sections 3(1)(r)(s) and 3(2)(v) of the Atrocity Act, which was ordered to be kept with FIR vide order dated 15.03.2021 by the trial court. If we consider the allegations made in the FIR, prima facie, there is no disclosure against the present appellant making any allegations. There is no suggestion even that prima facie appellant is involved in the offence. The findings of the trial court that acid was thrown by the present appellant and other co-accused persons, injury was caused to the injured persons by the appellant appears to be erroneous. From the statement of the witnesses, provisions of

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atrocities were added by the Investigating Officer later on. From the facts of the case and submissions made by learned advocate for the appellant as well as learned APP for the respondent no.1 State, there is no specific allegations against the present appellant to attract any provisions of the Atrocity Act.

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 Sections 3(2) (5)(a), 3(g), 3(p), 3(r), 3(s)(z)(c) & u/s. 8 of the Atrocity Act.

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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 to humiliate in a place within public view.

Considering the facts and allegations made by the complainant as well as police papers produced on record, judicial discretion is required to be exercised in favour of the present appellant.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 12.05.2021 passed in

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Criminal Misc. Application No. 2516 of 2021 by learned learned 9th Additional Sessions Judge, Surat 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 9th May 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 till further orders;

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(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, 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.

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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.

Registry is directed to send a copy of this order to the concerned Police Station as well as learned Sessions Court concerned through fax or email forthwith.

(B.N. KARIA, J) K. S. DARJI