Gujarat High Court
Pathan Hanifkhan Pirkhan vs State Of Gujarat on 20 February, 2024
NEUTRAL CITATION
R/CR.A/156/2024 ORDER DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 156 of 2024
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PATHAN HANIFKHAN PIRKHAN & ORS.PATHAN HANIFKHAN PIRKHAN
Versus
STATE OF GUJARATSTATE OF GUJARAT & ORS.
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Appearance:
MR SS SAIYED(3690) for the Appellant(s) No. 1,2,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/02/2024
ORAL ORDER
1. The present appeal is filed under Section 14A of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short "Atrocities Act") read with Section
438 of the Code of Criminal Procedure, 1973, the appellants
accused have prayed to release him on anticipatory bail in the
event of their arrest in connection with the FIR being C.R. No.I -
C.R. No.46 of 2018 with Ankleshwar City Police Station.
2. Learned advocate for the appellants submits that
considering the nature of allegations, role attributed to the
appellants, the appellants may be enlarged on anticipatory bail
by imposing suitable conditions.
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3 Learned Additional Public Prosecutor appearing on behalf
of the respondent-State would submit that looking to the nature
and gravity of the offence. Upon such submissions, he prays to
dismiss the appeal.
4. Heard the learned Advocates for the respective parties and
perused the papers.
5. Having heard the learned counsel for the parties and
perusing the record of the case and taking into consideration the
facts of the case, nature of allegations, role attributed to the
accused, without discussing the evidence in detail, at this stage,
I am inclined to exercise discretion in favour of the appellants for
the following reasons : -
(1) The respondent No.2 - complainant has expired.
(2) From reading of the FIR on its face does not indicate any
intention on the part of the appellants to lower down or hamper
the complainant regarding his caste.
(3) The case is otherwise for offence punishable u/s 504 and
506(2) of the IPC and none of the offences have maximum
punishment of more than seven years. Thus, in that
circumstances, guidelines issued in the case of Arnesh Kumar
v/s. State of Bihar [(2003 (8) SCC 273] reiterated in the case of
Md. Asfak Alam Vs. The State of Jharkhand and another
reported in 2023 INSC 660 and pursuant to which, Circular
No.C.2703/81 issued by this Court shall be followed.
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R/CR.A/156/2024 ORDER DATED: 20/02/2024
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(4) Even, after considering what is stated in the FIR alleged to
have attracted the offence under the provisions of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
and it does not constitute casteist slur and derogated to a
particular caste or said to have been spoken into public place.
(5) Learned advocate for the appellants assures the Court that
the applicant will cooperative with the investigation, as and
when presence of the applicant is required.
6. In above consideration, the appellants have made out
prima facie case to get the anticipatory bail. This Court is
conscious that statutory bar is operating while granting
anticipatory bail under the provisions of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act. But
looking to the above reasons along with prima facie case, nature
and gravity of the accusation and severity of the punishment as
well as absence of flight-risk character, behaviour, means and
position of the accused as well as non-likelihood of the offence
being repeated and taking assistance of the judgment of the
Hon'ble Apex Court in the case of Prithviraj Chauhan vs Union of
India, reported in (2020) 4 SCC 727, this is a fit case to exercise
jurisdiction. The relevant para is para 11, 32 and 33, which
reads as under:-
"11. Concerning the applicability of provisions of Section 438
CrPC, it shall not apply to the cases under the 1989 Act. However,
if the complaint does not make out a prima facie case for
applicability of the provisions of the 1989 Act, the bar created by
Sections 18 and 18-A(i) shall not apply. We have clarified this
aspect while deciding the review petitions.
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R/CR.A/156/2024 ORDER DATED: 20/02/2024
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32. As far as the provision of Section 18 - A and anticipatory bail
is concerned, the judgment of Mishra, J. has stated that in cases
where no prima facie materials exist warranting arrest in a
complaint, the court has the inherent power to direct a pre-arrest
bail.
33. I would only add a caveat with the observation and emphasise
that while considering any application seeking pre-arrest bail, the
High Court has to balance the two interests: i.e. that the power is
not so used as to convert the jurisdiction into that under Section
438 of the Criminal Procedure Code, but that it is used sparingly
and such orders made in very exceptional cases where no prima
facie offence is made out as shown in the FIR, and further also
that if such orders are not made in those classes of cases, the
result would inevitably be a miscarriage of justice or abuse of
process of law. I consider such stringent terms, otherwise
contrary to the philosophy of bail, absolutely essential, because a
liberal use of the power to grant pre-arrest bail would defeat the
intention of Parliament."
7. 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.
8. In the result, the present appeal is allowed by directing
that in the event of appellants herein being arrested in
connection with the FIR being C.R. No.I - C.R. No.46 of 2018
with Ankleshwar City Police Station, the appellants shall be
released on bail on furnishing a personal bond of Rs.10,000/-
(Rupees Ten Thousand Only) each with one surety of like
amount on the following conditions that they:
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(a) shall cooperate with the investigation and make
themselves available for interrogation whenever
required;
(b) shall remain present at the concerned Police Station
on 12.3.2024 and 13.3.2024 between 11.00 a.m. and
1.00 p.m. and the IO shall ensure that no unnecessary
harassment or inconvenience is caused to the
appellants;
(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 their 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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9. At the trial, the Trial Court shall not be influenced by the
prima facie observations made by this Court while enlarging the
appellants on bail. It is needless to say, the observations made
hereinabove are only tentative in nature and the trial Court shall
not be influenced by the aforesaid observation.
Direct service is permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
