The Gujarat High Court has observed that anticipatory bail can be granted in SC/ST Act if no abuse is hurled and case reeks of falsification.
In one such instance, the single-judge bench of Justice BN Karia observed that there was no absolute bar against the grant of anticipatory bail in cases under the Atrocities Act if no prima facie case was made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
The Learned Counsel for the appellant had argued that appellant is falsely roped in the present offence and nothing to do with the said offence. The FIR, to this regard no any ingredients of Section 3(2)(5-a) of Atrocities Act are made out as it can clearly be seen that no any abusive words are used by the appellant or other persons regarding the caste of the complainant as appellant was not aware about the caste of the complainant. He contended that appellant has no any criminal antecedent as per the affidavit of Investigating Officer.
Learned APP on the other hand opposed the petition and stated that prosecution is very right in pressing the charges. He submitted that the appellant being a government servant, has committed this offence along with other coaccused persons, which is clearly established from the contents of the complaint itself lodged before the police authorities. It is further submitted that prima facie, appellant is involved in the present offence and therefore, no lenient view can be taken by this court in favour of the present appellant.
The Court relied on the contents of the FIR which revealed that no any abusive words were used by the present appellant or any other persons in respect of the caste of the complainant as appellant was not at all aware about the caste of the complainant.
The Court found that as per the reports Police was requested/ instructed to add Section 3(2) (5-a) of the Atrocities Act after the complainant disclosed his identity
It referred to SC Rulings in Dr. Subhash Kashinath Mahajan Vs The State of Maharashtra and ANR., 2018 Latest Caselaw 191 SC, wherein the Hon'ble Supreme Court has held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(2)(5)(a), 3(g),3(p),3(r),3(s)(z)(c)& u/s. 8 of the Atrocity Act, the Court had observed.
In UNION OF INDIA vs. STATE OF MAHARASHTRA, 2019 Latest Caselaw 887 SC and Gorige Pentaiah v. State of Andhra Pradesh and Ors.
In consideration of the above rulings, and of the facts of the police papers produced on record which states that there are no averments or allegations made by the Respondent to attract any provisions of the Atrocities Act, the Court accepted the appeal.
However, the Court left it open to the discretion of 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 also notred that the order is in no prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. 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.
The Court instructed that the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellant on bail.
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