The Gujarat High Court while rejecting anticipatory bail to a man accused of forcefully converting religion of 37 Hindu families and 100 Hindus, noted that prima facie there are signs of attempt and allure.
The single-judge bench of Justice BN Karia observed that granting anticipatory bail is a matter of discretion and it involves imposing special conditions depending on the facts of the case.
The present appeal has been filed under Section 14(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 challenging special court ordern denying bail.
The Applicant was booked for offences under Sections 4 of Freedom of Religion Act and Section 120B, 153(B)(1)(c), 506(2) of the Indian Penal Code. It was also alleged that the Applicant hurt sentiments of the Hindu community and when other persons wanted to revert to Hinduism, they were threatened with dire consequences by the Applicant. In view of this, Investigating Officer filed a report adding Sections 466,467,468 and 471 of IPC and Sections 3(2)(5-A) of the Atrocities Act.
The bail plea is opposed with contention that many co-accused were absconding and that releasing the Applicant would further prejudice the investigation.
The Counsel for the appellant inter-alia pointed out that no specific allegations were made against the appellant. It was submitted that the appellant has received phone calls and several times, has extended cooperation to the investigation. It was further averred that the other accused persons, who are named in the impugned FIR, have preferred quashing petition before the Court, wherein notice was issued to the State. It was contended that no previous sanction was obtained under Section 6 of the Freedom of Religion Act by the prosecution.
He denied the allegations made by the Investigating Officer in his affidavit that the appellant had facilitated financial assistance to the convertees and given religious sermons/takrirs demeaning Hindu religion, as completely false and bogus.
Pointing out that under Section 3A of the Freedom of Religion Act, FIR can be filed by the aggrieved person or persons related to him by blood, he submitted that no prosecution can be initiated except with the previous sanction of the District Magistrate.
It was thus contended that the appellant is made as an accused by the Investigating Officer without any complaint made by the respondent no.2, and therefore, he cannot be prosecuted for the allegations in the FIR as the same is violative of the mandate of Section 3A of the Freedom of Religion Act.
He has rendered the allegations made in the FIR as baseless and submitted the points below:
-The appellant is an Islamic scholar and he is given sermons across the country exercising his fundamental right to speech and expression.
-The respondent no.2 himself has voluntarily converted to Islam by way of his own affidavit in the year 2018 and thereafter, applied before the Gujarat Government to change his name from Vasava Pravinbhai Vasantbhai to Patel Salman Vasantbhai and the same was published in gazette.
-Respondent no.2 himself has converted his religion and no one has forcefully insisted him to convert his religion as the same is declared on oath in the year 2018.
Placing reliance on Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) & ANR., 2018 Latest Caselaw 381 SC, he submitted that the offences as alleged against the appellant are not even prima facie made out and therefore, there is no bar and/or legal impediment in granting anticipatory bail to the appellant
High Court's Analysis
The Court at the outset remarked that whether to grant anticipatory bail or not is a matter of discretion.
"Anticipatory bail would depend on the conduct and behaviour of the accused, continue after filing of the chargesheet till end of trial and order of anticipatory bail does not in any matter limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail."
The Court opined that material placed on record shows the involvement of the appellant, beyond reasonable doubt and therefore it is not inclined to accept the prayer of the appellant to enlarge the appellant on bail or to exercise the discretion wasted with the Court, and therefore, the judgment relied upon by the appellant would not apply in the facts of the present case.
Commenting on the conduct of the appellant, the Court stated that the Applicant and other accused had provided air-cooler, water cooler, lories, chatai for Namaz and other articles to various families to allure them for conversion. There were other accused who also provided medical help and helped convert persons and there were a number of derogatory statements as well as threats issued to persons from another community, it added.
The petition was thus dismissed.
Case Title: VARYAVA ABDUL VAHAB MAHMOOD Versus STATE OF GUJARAT
Case Details: R/CRIMINAL APPEAL NO. 92 of 2022
Coram: Justice BN Karia
Read Order Here:
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