Rafikbhai Ishakbhai Kumbhar vs State Of Gujarat
2024 Latest Caselaw 1545 Guj

Gujarat High Court

Rafikbhai Ishakbhai Kumbhar vs State Of Gujarat on 20 February, 2024

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       R/CR.A/2749/2023                                      ORDER DATED: 20/02/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 2749 of 2023

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                           RAFIKBHAI ISHAKBHAI KUMBHAR
                                       Versus
                             STATE OF GUJARAT & ANR.
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Appearance:
MS TASNIM A ZABUAWALA(10756) for the Appellant(s) No. 1
MR CHIRAG B AYDI(13146) for the Opponent(s)/Respondent(s) No. 2
MR. MAULIK M SONI(7249) for the Opponent(s)/Respondent(s) No. 2
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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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 appellant accused has prayed to release him on anticipatory bail in the event of their arrest in connection with the FIR being C.R. No.11993006231173 with Gandhidham "A" Division Police Station.

2. Learned advocate for the appellant submits that considering the nature of allegations, role attributed to the appellant, the appellant may be enlarged on anticipatory bail by imposing suitable conditions.

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3. Learned Additional Public Prosecutor as well as learned advocate for the complainant appearing on behalf of the respondent-State and respondent complainant respectively have opposed grant of anticipatory bail looking to the nature and gravity of the offence. Upon such submissions, both the learned advocates pray 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 appellant for the following reasons : -

(1) Relevant and essential ingredients under the Atrocities Act are not attracted on prima facie reading of the documents. (2) The impugned FIR is the counterblast to the FIR filed by the petitioner against the first informant. (3) The impugned FIR is delayed by 15 days. (4) Though it is alleged that the first informant was saved by the Gandhidham A Division Police from beating, yet on the spot the FIR is not filed on the fateful day of the incident. However, it is filed after a delay of 15 days.

(5) After the incident, the first informant was taken to the Government Hospital, where also, the first informant has not given any complaint nor has given any history to the doctor about the incident.

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(6) Even, essential ingredients of offence punishable u/s 504 and 506(2) of the IPC are also not made out, as barely, there are words of passing threat of life, nothing more than that. (7) 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.

6. In above consideration, the appellant has 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.

32. As far as the provision of Section 18 - A and anticipatory bail

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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 appellant herein being arrested in connection with the FIR being C.R. No.11993006231173 with Gandhidham "A" Division Police Station, the appellant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that they:

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(a) shall cooperate with the investigation and make himself 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 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the appellant;

(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

9. 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. It is needless to say, the observations made

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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