Bhavin Jadavaji Bhai Satapara vs State Of Gujarat
2024 Latest Caselaw 804 Guj

Gujarat High Court

Bhavin Jadavaji Bhai Satapara vs State Of Gujarat on 31 January, 2024

                                                                                     NEUTRAL CITATION




       R/CR.A/2754/2023                                ORDER DATED: 31/01/2024

                                                                                      undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 2754 of 2023

                                        With
                          R/CRIMINAL APPEAL NO. 2792 of 2023
==========================================================
                           BHAVIN JADAVAJI BHAI SATAPARA
                                       Versus
                                 STATE OF GUJARAT
==========================================================
Appearance:
MR JAL S UNWALA, SR. ADVOCATE with MR VISHWAS K SHAH(5364) for
the Appellant(s) No. 1
MR JM BAROT(143) for the Opponent(s)/Respondent(s) No. 2
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                   Date : 31/01/2024

                                    ORAL ORDER

1. The present appeals are 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.11198015231670 of 2023 with Bortalav Police Station.

2. Learned Senior Counsel 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.

NEUTRAL CITATION

R/CR.A/2754/2023 ORDER DATED: 31/01/2024

undefined

3. Learned advocate Mr. JM Barot for the original complainant while opposing the bail application after referring to the impugned order passed by the learned Sessions Court, would submit that the learned Session Judge in categorical terms has observed that the deceased has committed suicide soon after telephonic talk with the petitioners. He would further submit that the petitioners have scolded the deceased and therefore, the deceased committed suicide. Thus, he submits to dismiss the petition.

3.1 Joining the hands of learned advocate for the complainant, learned Additional Public Prosecutor appearing on behalf of the respondent-State would submit that looking to the nature and gravity of the offence. He would further submit that transcript of the talk between the deceased and the petitioners reflects that the petitioners have scolded the deceased, which ultimately lead to committal of suicide by the deceased and therefore, prima facie, ingredients of offence u/s 306 of the IPC are attracted 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 : -

NEUTRAL CITATION

R/CR.A/2754/2023 ORDER DATED: 31/01/2024

undefined

(1) If the FIR is considered to be gospel truth, no case of abetment is made out. The only allegation made in the FIR is scolding the deceased by the petitioners and nothing more than that. By no means, that can be considered as instigation to commit the suicide. Hence, ingredients of section 207 of the IPC are missing, as there cannot be clear instigation, which left the deceased in a situation only to commit suicide. (2) It is not on record that the deceased has ever told to his wife that he was under constant threat from the petitioners. (3) 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. (4) At this juncture, I may refer to decision in case of Mohit Singhal & Anr. vs. The State of Uttarakhand & Ors., rendered in Criminal Appeal No.3578 of 2023 by the Hon'ble Apex Court in regards to allegation of committal of suicide for demanding money and for the offence under Section 306 of the IPC following view is taken by the Hon'ble Apex Court. Paragraph 7 to 10 reads thus:

"9. In the facts of the case, secondly and thirdly in Section 107, will have no application. Hence, the question is whether the appellants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide.

NEUTRAL CITATION

R/CR.A/2754/2023 ORDER DATED: 31/01/2024

undefined

10. In the present case, taking the complaint of the third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that purpose. The said incident allegedly happened more than two weeks before the date of suicide. There is no allegation that any act was done by the appellants in the close proximity to the date of suicide. By no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide. The deceased has blamed the third respondent for landing in trouble due to her bad habits."

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.

NEUTRAL CITATION

R/CR.A/2754/2023 ORDER DATED: 31/01/2024

undefined

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 appeals are allowed by directing that in the event of appellants herein being arrested in connection with the FIR being C.R. No.11198015231670 of 2023 with Bortalav 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:

NEUTRAL CITATION

R/CR.A/2754/2023 ORDER DATED: 31/01/2024

undefined

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

(b) shall remain present at the concerned Police Station on 12.2.2024 and 13.2.2024 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

(g) it would be open to the Investigating Officer to file an

NEUTRAL CITATION

R/CR.A/2754/2023 ORDER DATED: 31/01/2024

undefined

application for remand if he considers it proper and just and the learned Magistrate would decide it on merits.

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