Ishwarbhai Kabhaibhai Chauhan vs State Of Gujarat
2023 Latest Caselaw 6600 Guj

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    R/CR.A/1821/2023                             ORDER DATED: 08/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL APPEAL NO. 1821 of 2023
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               ISHWARBHAI KABHAIBHAI CHAUHAN
                               Versus
                        STATE OF GUJARAT
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Appearance:
MR JIGAR D DAVE(6528) for the Appellant(s) No. 1
MR VINODKUMAR M MAKWANA(9530) for the Appellant(s) No. 1
MS FALGUNI D.TRIVEDI(3912) for the Opponent(s)/Respondent(s) No. 2
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                          Date : 08/09/2023
                           ORAL ORDER

[1.0] Present appeal under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") challenging the judgment and order dated 08.07.2023 passed by the learned 4th Additional District Judge & Special Atrocity Judge, Kheda, at Nadiad (hereinafter referred to as "learned Special Judge") in Criminal Misc. Application No.442 of 2022 whereby the learned Special Judge rejected the application filed by the present appellant under Section 438 of the Code of Criminal Procedure, 1973 seeking anticipatory bail in connection with FIR being C.R. No.11204025230407 of 2022 registered with Kheda Town Police Station, District Kheda for the offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 and sections 3(1)(r), 3(1)(a), 3(2)(va) of the Atrocity Act.

[2.0] Learned advocate for the appellant submitted that the appellant is not involved in commission of the offence as alleged

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in the FIR and the allegations leveled in the FIR against the present appellant are nothing but evasive and no offence is made out under Sections 3(1)(r), 3(1)(a) and 3(2)(va) of the Atrocity Act and no injury is caused to the complainant. Further, the present FIR is nothing but a counterblast as son of the present applicant had resolved a dispute between the husband of the complainant, who is drunkard and headstrong person, and one Hiteshbhai and the husband of the complainant is using his wife as a tool to settle the score and the present FIR is filed with political vendetta as present applicant is the Sarpanch of village Shetra. Further, the applicant has joined the investigation and now, nothing is required to be recovered or discovered from the present applicant. Hence, he has requested to allow the present application.

[3.0] Per contra, learned APP appearing for the respondent - State has vehemently opposed the present appeal and stated that in an offence under the Atrocity Act, this Court should not exercise the jurisdiction as prima facie offence is made out and the offence took place about the some quarrel nearby school gate which is a public place and husband of the complainant was misbehaving and then he was also beaten up and complainant also sustained injury. She has also taken treatment in Gayatri Hospital at Matar. Considering the said fact also prima facie offence is made out.

[4.0] Learned advocate appearing for the original complainant

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has raised objection that the present offence is serious one. The present applicant is headstrong and has great influence over the villagers and he remained absconded and there is strong possibility that if the applicant accused is released on bail then he would try to tamper with the evidence and cause harm to the complainant. Even today the complainant is afraid that the applicant will put pressure on her to withdraw the complaint. Hence, she has requested to dismiss the present application.

[5.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. The allegation in the FIR against the applicant is for the offence under the Atrocity Act. It is true that there is bar under Section 18A of the Atrocity Act to entertain anticipatory bail however, there is no bar to examine if prima facie offence is not made out or it appears that the offence has taken place in public view or if it does not clarify or satisfy the ingredients of offence then the discretion may be exercised in view of the decision of the Hon'ble Apex Court in the case of Prathvi Raj Chauhan vs. Union of India reported in (2020)4 SCC 727. In view of the above, if the merits and documentary evidences on record are examined, it appears that present applicant is a Sarpanch who has joined the investigation and the applicant is not having any criminal antecedents.

[5.1] Going through the investigation papers, it appears that on the fateful day of the incident, members of NFHS Team came from Delhi in the village for health service and at that time, the

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husband of the complainant had started abusing one Asha Worker, whose statement is also recorded and has not supported the case of prosecution. Even other members of NFHS Team have also not supported the case of prosecution. On the contrary, it reveals from the record that the present applicant had resolved the issue between the husband of the complainant and NFHS team members and advised the husband of the complainant to behave in proper manner and not to abuse anyone. Considering this aspect as well as the statements recorded during the investigation by the Investigating Officer, it appears that this is a fit case to exercise discretion as the applicant has already joined the investigation and now, there remains nothing to be recovered or discovered from the present applicant - accused. This Court has considered the medical certificate and the fact that injuries were simple bruise injuries. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40.

[6.0] Considering the aforesaid aspects and 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 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present appeal.

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[7.0] Hence, the present appeal is allowed. The appellant is ordered to be released on anticipatory bail in the event of his arrest in connection with FIR being C.R. No.11204025230407 of 2022 registered with Kheda Town Police Station, District Kheda on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the appellant shall;

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

(b) shall remain present at the concerned Police Station on 21/09/2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;

(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;

(f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and

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(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;

[8.0] 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. 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.

[9.0] 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.

[10.0] Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR, J.)

Ajay