JASHUBHAI MAJDAN GADHAVI v. STATE — 1992 DIGILAW 171 (GUJ)

K. J. VAIDYA, J. ( 1 ) RULE Mr. S. T. Mehta, Ld. APP appearing for the respondent-State waives service of the Rule. Heard Mr. Harin P. Raval and Mr. S. T. Mehta, learned APP appearing for the respective parties. 1. Whether in cases wherein, when any person who is accused of having committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Atrocities Act) is specifically barred from having the benefit of anticipatory bail u/sec. 438 of the Criminal Procedure Code, 1973 (for short the Code) by virtue of an express provision as contained in Section 18 of the said Atrocities Act, and yet relying upon the decision in case of Pankaj Suthar v. State of Gujarat, reported in 1992, (1) Gujarat Law Herald, p. 86, makes an application for such anticipatory bail which if the court is not inclined to grant the same, whether at this stage, such an aggrieved person simultaneously, by way of an alternative remedy can be permitted to invoke the provisions contained in Section 439 of the Code to get himself released on regular ordinary bail, though he is not arrested by the Police ? This in short, is the simple but at the same time the question of quite some importance arising in this Misc. Criminal Application. ( 2 ) ). In short, the petitioner Jasubhai Mojdan Gadhvi, apprehending his arrest at the hands of Police in connection with Cr. No. 68 of 1992 registered at Becharaji Police Station, for the alleged offence punishable u/secs. 504, 506 (2), 114 of the Indian Penal Code and u/sec. 3 (I) (X) of the Atrocities Act, has by this Misc. Criminal Application moved this Court for getting himself released, in the first instance on an anticipatory bail u/sec. 438 of the Code and failing which in the alternative, on ordinary regular bail u/sec. 439 of the Code. ( 3 ) ). Few relevant facts: According to the complainant Harijan Vankar Mohanbhai Devabhai, the incident in question took place on 22-4-1992 at 18-00 hours near his house at Village Edala, Ta. 438 of the Code and failing which in the alternative, on ordinary regular bail u/sec. 439 of the Code. ( 3 ) ). Few relevant facts: According to the complainant Harijan Vankar Mohanbhai Devabhai, the incident in question took place on 22-4-1992 at 18-00 hours near his house at Village Edala, Ta. Chanasma, when the petitioner alongwith three other persons namely: (i) Gadhvi Vishnubhai Jasubhai (armed with dharia), (ii) Gadhvi Bharatdan Kanubhai, and (iii) Gadhvi Navaldan Hingaldan, picking up the quarrel, gave abuses to him saying, to quote sala dhedo fati gaya chhae meaning thereby these untouchables have gone beyond control. The case of the complainant further in detail is to the effect that on the aforesaid date, time and place, some boys of Gadhvis were playing with a ball in the street which accidently bumped into the street near the house of the complainant which was taken away by the complainant. It further appears that thereafter, despite the fact that the ball was returned to the said Gadhvi boys, Gadhvi Vishnubhai Jasubhai came out from his house and picked up the quarrel, as stated above. On the complainant requesting Vishnubhai Jasubhai not to give abuses, he got infuriated and continued giving further abuses. In the meantime, the petitioner and other two accused persons appeared on the scene of the incident and joined Vishnubhai in giving abuses and threats by saying, to quote dhedaone jivata raheva deva nathi, janthi mari nakho meaning thereby the dhedhas (untouchables ) are not to be allowed to remain alive, kill them. Thereafter, Vishnubhai went inside the house and came out with a dharia. As all these four accused were about to beat him, the complainant and his family members hurriedly went inside the house. Even thereafter, the accused persons were uttering threats saying, to quote tenughar sargavi muko ane bahar nikare to dhedane janthi mari nakho meaning thereby burn his house and in case he comes out kill him. On the basis of these allegations, on 23-4-1992 at about 0. 30 hours Harijan Vankar Mohanbhai Devabhai filed a complaint before Becharaji Police Station for the alleged offences, which as stated above, came to be registered as C. R. No. 68 of 1992. It is under these circumstances, as stated above, that the petitioner apprehending his arrest has rushed to this Court for getting himself released either on an anticipatory bail u/sec. It is under these circumstances, as stated above, that the petitioner apprehending his arrest has rushed to this Court for getting himself released either on an anticipatory bail u/sec. 438 of the Code or in the alternative u/sec. 439 of the Code on regular bail. ( 4 ) ). Mr. Harin Raval, the learned Advocate appearing for the petitioner while trying hard to make out the case for anticipatory bail submitted that the complainant has filed totally false, frivolous and vexatious complaint against the petitioner and others only because of the political rivalry arising out of the recent Panchayat Elections held in the month of January 1992. Mr. Raval further ubmitted that the complainant has deliberately and maliciously manipulated to allege this particular offence under Section 3 (I) (X) of the Atrocities Act against the petitioner only with an ulterior motive to see that he is deprived of the reasonable benefit of anticipatory bail u/sec. 438 of the Code in view of Section 18 of the Atrocities Act. This has been precisely done with a view to see that the petitioner is harassed by the police and because of his arrest, his image is tarnished in the society. Mr. Harin Raval further submitted that taking into consideration the fact that the complainant has maliciously applied and misused the provisions of the Atrocities Act, this was one of the fittest case wherein the petitioner deserves to be released on bail. In support of this contention, Mr. Raval has placed reliance upon the decision rendered by this Court in case of Pankaj Suthar v. State of Gujarat, reported in 1992 (1) GLH page 86. In the alternative, Mr. Raval further submitted that if he failed to convince this Court to grant anticipatory bail to the petitioner, then in that case, without entering into the merits of the petitioners case of getting released on anticipatory bail, he in the alternative would like to invoke the provisions contained in Section 439 of the Code pertaining to the special power of the High Court for releasing the petitioner on regular ordinary bail. Mr. Raval submitted that the petitioner is very much present in the Court room and is ready and willing to surrender himself to the jurisdiction and custody of this Court for any direction and/or order that this Court may ultimately pass including that of the rejection of bail application after hearing him. Mr. Raval submitted that the petitioner is very much present in the Court room and is ready and willing to surrender himself to the jurisdiction and custody of this Court for any direction and/or order that this Court may ultimately pass including that of the rejection of bail application after hearing him. ( 5 ) ). As against the above, Mr. S. T. Mehta, the Ld. APP. appearing for the State submitted that on perusal of the complaint, at this stage, the petitioner cannot be permitted to baldly assert and contend that he has been falsely implicated because of the alleged political rivalry. The Ld. APP. further submitted that the political rivalry in fact is a double-edged weapon which cuts both ways and hence what ought we know that may be cause of the said political rivalry only that the petitioner and others were tempted to commit the alleged offence against the complainant Under the circumstances, according to the Ld. APP, prima facie no case was made out for the petitioner hereby he can derive of the benefit of decision reported in the case of Pankaj Suthar v. State of Gujarat (supra ). Coming next to the alternative argument of the learned Advocate Mr. Raval that the petitioner should be released on regular ordinary bail u/sec. 439 of the Code, Ld. APP. vehemently submitted that this also should not be granted for the simple reason that if such devices are lightly permitted to be adopted, then the same would be just tantamount to permitting the accused alleged of the offences punishable under the Atrocities Act to indirectly circumvent, slight and brush aside the provisions u/sec. 18 of the Atrocities Act which clearly prohibits application of Section 438 of the Code to such offences. Mr. Mehta still further submitted that the petitioner has kept himself at the safe distance out of the reach of Police and has not been arrested so far,and in that view of the matter also, no question of releasing him on bail arises as without he being taken into custody, his bail application is quite premature for any consideration. On the basis of the above submissions, Mr. Mehta, Ld. APP finally urged that the present application of petitioner for anticipatory bail u/sec. 438 as well as for the ordinary bail u/sec. 439 of the Code having no merits deserves to be rejected outright. ( 6 ) ). On the basis of the above submissions, Mr. Mehta, Ld. APP finally urged that the present application of petitioner for anticipatory bail u/sec. 438 as well as for the ordinary bail u/sec. 439 of the Code having no merits deserves to be rejected outright. ( 6 ) ). In reply to the above submissions of the Ld. APP Mr. Raval, Ld. Adv. for the petitioner submitted that for the time being, he without entering into the merits of the case as to whether the petitioner can be released on anticipatory bail or not in the light of the decision of this Court rendered in the case of Pankaj Suthar v. State of Gujarat (supra), he first of all wants to contend that the petitioner was legally entitled to obtain alternative relief of regular bail u/sec. 439 of the Code. Mr. Raval further contended that the regular bail u/sec. 439 of the Code cannot be denied to the petitioner merely because as contended by the Ld. APP he is not arrested so far by the police or as apprehended by him that to release the petitioner on regular bail u/sec. 439 of the Code at this stage would be tantamount to circumventing Section 18 of the Atrocities Act. Mr. Raval, in this regard further submitted that in order to obtain regular bail, it is not always and invariably necessary that the accused must be first arrested by police as a condition precedent in order to qualify himself to obtain regular bail from the Court. Mr. Raval further contended that if it sufficient if the accused, though not arrested by the Police, by remaining present before the Court surrenders himself to the jurisdiction and custody of the Court. In support of this contention, Mr. Raval invited attention of this Court to the leading decision of the Supreme Court, rendered in the case of Niranjan Singh and Another v. Prabhakar Rajaram Kharote, reported in AIR 1980 SC 785 , wherein at paras 6, 7, 8, and 9 it has been observed as under: (6) Here, the respondents were accused of offences but were not in custody, argues the petitioner. So no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. So no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when the persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail u/sec. 439 of Criminal Procedure Code unless he is in custody. (7) When is a person in custody, within the meaning of Section 439 of Criminal Procedure Code ? When he is in duress either because he is held by the Investigating agency or other police or allied authority or is under the control having been remanded by judicial order, or having offered himself to the courts jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is indeed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that. . . . . the law has taken control of the person. The equivocatory quibblings and hide and seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but has taken him into formal custody and other like terminological dubiotics are unfair evasions of the straighforwardness of the law. We need not dilate on this shady facets here because we are satisfied that the accused did physically submitted before the Sessions Judge and the jurisdiction to grant bail thus arose. (8) Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail u/section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. (8) Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail u/section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. (9) He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. In the present case,the police officers applied for bail before a Magistrate who refused bail and still the ccused, without surrendering before the Magistrate, obtained an order of stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 Cr. P. C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant or bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different, we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail, but, sitting under Arct. 136, do not feel that we should interfere with a discretion exercised by the two courts below. ( 7 ) ). Now as desired by Mr. Had the circumstances been different, we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail, but, sitting under Arct. 136, do not feel that we should interfere with a discretion exercised by the two courts below. ( 7 ) ). Now as desired by Mr. Raval without going into the vexed question and merits of the case as to whether in the present case, the petitioner could be released on an anticipatory bail or not, in the light of the reported decision in case of Pankaj Suthar v. State of Gujarat (supra), taking into consideration the decision of the Supreme Court rendered in the case of Niranjan Kharote (supra), it appears that the petitioner prima facie is entitled to be released on regular bail under Section 439 of the Code. The petitioner who is very much present before the court, had been duly dentified by the learned Advocate Mr. Raval, who has submitted to the jurisdiction and custody of this court to the extent that he has expressed his readiness and willingness to obey and serve out any direction or order that this Court may pass hereinafter. No doubt, it may give an impressionthat in a given case, the persons accused of such offences may try to circumvent Section 18 of the Atrocities Act and get himself released on regular bail under Section 439 of the Code, as apparently such a situation leaves some crevice or loopole in nature of things which the person accused of offences under the Atrocities Act may successfullyexploit to his best of the advantage, but that by itself does not mean that the decision of thesupreme Court reported in the Code of Niranjan Singh Kharote (supra) is in any way at cross-roadswith Section 18 of the Atrocities Act. Both Section 439 of the Code and Section 18 of the Atrocities Act have their respective fields of independent operation. If incidentally by chance any such legal situation is created which offers an alternative option to the accused alleged to have committed offence under the Atrocities Act, the freedom to exercise such choice either under Section 438 or 439 of the Code is always left to such persons which he may exercise in a way which suits his interest best. If incidentally by chance any such legal situation is created which offers an alternative option to the accused alleged to have committed offence under the Atrocities Act, the freedom to exercise such choice either under Section 438 or 439 of the Code is always left to such persons which he may exercise in a way which suits his interest best. In any case, it is simply unthinkable for this court to shut its eyes to the decision of the Supreme Court rendered in the case of Niranjan Singh (supra) which every Court of India is bound to honour, implement and enforce. Merely because it is somehow apprehended that the aforesaid decision of the Supreme Court may weaken the intended rigour of the Atrocities Act by allegedly bypassing Section 18 of the Atrocities Act, it cannot be said that the petitioners right to liberty to be released on regular ordinary bail under Section 439 of the Code could be denied to him more particularly when the Supreme Court has kept the entry and passage open. And further it is not that every accused alleged to have committed an offence under the Atrocities Act, would not be arrested by the police in time and that he will be submitting himself to the jurisdiction and custody of court to be released on regular ordinary bail under Section 439 of the Code allegedly defeating the object of Section 18 of the Atrocities Act. ( 8 ) ). Mr. Mehta, ultimately realising the difficulty in his way of holding the fort to get bail application of the petitioner rejected, in his last ditch resistance opposing the bail application, submitted that taking into consideration the serious allegations in the complaint against the petitioner and alarmingly increasing cases of such type of offences under Atrocities Act, just to teach the object lesson on the ground of public policy also, the petitioner should not be released on regular bail. Now it is not possible for this Court to agree with the learned APP on this point also for the simple reason that at this stage the prosecution case is at its highest best is at the stage mere allegations which even if ultimately proved the sentence provided is minimum six months and fine. Now it is not possible for this Court to agree with the learned APP on this point also for the simple reason that at this stage the prosecution case is at its highest best is at the stage mere allegations which even if ultimately proved the sentence provided is minimum six months and fine. Now no court these days can ever overlook the fact that trials in the lower courts take considerable time because of the backlog of old cases coupled with increasing incessant spate of litigation and in this view of the hard realities, if the regular bail is refused at this stage, it is very likely that by the time the trial takes place, the petitioner may virtually serve out the minimum sentence provided for the alleged offence. This would indeed be tantamount to a pre-trial punishment on the basis of the allegations only. In fairness to the accused, no court can be a party to impose such a pre-trial imprisonment to teach lesson to offender of such crimes as suggested by the learned APP. One has to be very clear about the fact, namely, that the alleged offence is neither under any preventive detention law where a person can be kept in jail without any trial on the basis of mere allegations, nor this is a case wherein criminal antecedents of like cases are alleged against the petitioner, nor further this is a case wherein the case is serious and the investigation is pending and in progress, nor also this is a case wherein the punishment provided for the alleged offence is more than 10 years, etc. that the Court can justifiably refuse bail of the petitioner. Of course in a way, the Bd. APP is absolutely right when he submitted that these offences are very serious social offences and are alarmingly increasing and therefore quite grim and strictest possible view of the same is required to be taken, but then, this indeed would certainly be a matter for the Trial Court to bear in mind at the end of trial while awarding the sentence. In this case also, at the end of thetrial, this Court is quite sure that the Trial Court depending upon the overall facts and circumstances of the case, available on the record including the case of the accused on the point of sentence, would inflict a sentence which may meet with the ends of justice. But to deny a regular bail to the accused in such type of cases, at this stage, would be simply dancing to the tunes of some allegations and motives of the complainant which are yet to be tested on oath and to stand the fire of cross-examination acquiring the certificate of proof to be safely acted upon. Till then, it would be simply illegal, unjust and unfair to deny the bail. Thus, taking into consideration the overall facts and circumstances of the case, this Court is of the view that the petitioner deserves to be released on regular bail u/sec. 439 of the Code. ( 9 ) ). In the result, this Bail Application is allowed. Petitioner is ordered to be released on regular bail in sum of Rs. 2,000. 00 (Rupees two thousand) and a surety of like amount. Rule made absolute. (RPV) Application allowed. .