Rajput Hamirji Khodabhai vs State Of Gujarat
2024 Latest Caselaw 578 Guj

Gujarat High Court

Rajput Hamirji Khodabhai vs State Of Gujarat on 23 January, 2024

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       R/CR.A/2797/2023                                      ORDER DATED: 23/01/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 2797 of 2022

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                            RAJPUT HAMIRJI KHODABHAI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR NC THAKKER MS ROMA I FIDELIS(3529) & NIKET N MODI(9498) for
the Appellant(s) No. 1
MS.DILBUR CONTRACTOR(6388) for the Opponent(s)/Respondent(s) No. 2
HKP PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                     Date : 23/01/2024

                                      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.11195050220879 of 2022 with Tharad Police Station for the offences punishable u/s 467, 468, 471, 120B, 143, 447, 504, 506(2) of the IPC and u/s 3(1)(f), 3(1)(g), 3(1)(r), 3(1)(s), 3(2)(va) of the Atrocities Act.

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 advocate Ms. Dilbur Contractor for the complainant would submit that the transaction was taken place on Rs.3.5 stamp and that document is yet to be recovered by the investigation. She would further submit that the investigation is going on at snell's pace. She would further submit that though NA permission was granted, such order has been challenged by the complainant before the higher Revenue Officer and the revenue proceedings are going on. She would further submit that the complainant is still in possession of the land till date. Thus, she requests to dismiss the appeal.

3.1. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has 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) The petitioner is 90 years old. Though revenue proceedings are going on between the parties, but the NA permission at this

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juncture shows that the appellant is in possession of the land in dispute and the plotting have also been made on the land in dispute.

(2) The transaction took place in the year 1975, which was never challenged up til now.

(3) There are various proceedings taken place at the level of the Collector and all the documents are placed before the Collector/Revenue Officer/Stamp Officer and that can be collected during investigation.

(4) On perusal of the FIR, necessary ingredients of Atrocities Act are missing.

(5) 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) The role of the present petitioner is to be the purchaser of the land in question. The said transaction has been rectified by the concerned revenue officers, whereby the appellant was directed to pay the deficit the stamp duty, which the appellant has already paid.

(7) The status of the land in question is of trible land, which cannot be sold as bar u/s 73AA of the Bombay Land Revenue Code. However, the Collector has granted NA permission and the ploting have already been upon the land in dispute and some third parties are also in possession of the land in dispute. (8) The co-accused has been enlarged on regular bail by this Court, wherein, in para 5 of order dated 8.12.2023 passed in Criminal Misc. Application No.2527 of 2023, this Court has observed thus:-

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"5. Having heard the learned counsels for the parties and having perusing the record of the case, so also 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) From the record it appears that the land in question was purchased from one Bhil Bhikhabhai Khengarbhai in the year 1975. It also appears that the sale agreement was executed on the stamp paper of Rs.3.50/-, but, the same was not registered. However, later on, the same was ratified by the Deputy Collector, as per AnnexureF to this application, whereby, the present petitioners was directed to pay the amount of stamp duty, which was duly paid. It further appears that the proceedings under Section 73AA of the relevant Code were initiated qua the said transaction, as it appeared that the tribal land was sold to a non-tribal person.

It, however, appears from the document at Annexure-D to this petition that the said proceedings came to be decided in favour of the present appellants by the concerned Revenue Court, after recording the presence and objections of the first informant. It may be noted that the appellants was also granted NA permission, which was approved by the concerned Collector, as per the document produced as Annexire-I to this petition. Thus, from the above it appears that a civil transaction is being given the colour of an offence. It also appears that the first informant was never in possession of the land in question, but only for the purpose of filing the present FIR, he stated that he is in possession of the disputed land. From a perusal of the documents annexed with the present application, it becomes clear that the present appellants has purchased the land in question and (2) Relevant and essential ingredients under the Atrocities Act are not attracted on prima facie reading of the documents;

(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', reported in (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 is issued by this Court shall be followed;

(4) There is no MLC certificate to indicate that the victim has received any injury;

(5) 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; (6) Even, after considering what is stated in the FIR alleged to

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have attracted the offence under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 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.

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

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with the FIR being C.R. No.11195050220879 of 2022 with Tharad 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:

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

(b) shall remain present at the concerned Police Station on 31.1.2024 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

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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.

9. 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.

10. 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 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