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2005 DIGILAW 102 (GUJ)

RAJAJI HEGOLJI THAKORE v. STATE OF GUJARAT

2005-02-18

A.L.DAVE

body2005
A. L. DAVE, J. ( 1 ) RULE. Learned Additional Public Prosecutor, Mr. Pujari, waives service of notice of Rule on behalf of the respondent-State. With the consent of learned Advocates for the parties, the matter is taken up, today, for final hearing. ( 2 ) THE petitioners are accused of having committed offences punishable under Sections 143, 342, 395, 323, 504 and 506 (2) of the Indian Penal Code and Section 3 (1) (10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("atrocities Act" for short), by virtue of an F. I. R. lodged with Bhabhar Police Station at C. R. No-I-73 of 2004. They have, therefore, moved this petition under Article 226 read with Articles 14, 16 and 21 of the Constitution making following prayers :-" (A) This Honble Court be pleased to issue a writ of mandamus and/or any other writ, order or direction in the nature of mandamus or any other appropriate writ, directing the Investigating Officer to release the petitioners on bail in the event of their arrest in connection with offences registered under I-C. R. No. 73/2004 registered with Bhabhar Police Station, District Banaskantha. (B) In the alternative, this Honble Court may be pleased to permit the applicants to surrender to the custody of the Special Court, Banaskantha and the petitioners may be permitted to prefer an application for Regular Bail under the provisions of Sec. 439 of Cr. P. C. the learned Special Court may be directed to decide the said application on the same day and that the petitioners may be deemed to be treated in the custody of the Special Court till the final disposal of the said application. (C) Pending admission, hearing and/or final disposal of this application, this Honble Court may be pleased to direct the Investigating Officer of I-C. R. No. 394/2004 registered with the Bhabhar Police Station, District Banaskantha, not to arrest the petitioners. (D) Such other and further reliefs as this Honble Court may deem fit and proper be granted to the petitioners. " ( 3 ) LEARNED Advocate, Mr. H. K. Patel, appearing for the petitioners submitted that the petitioners are sought to be falsely implicated and they, therefore, may be granted protection in terms of the prayers made in the petition, in exercise of extraordinary jurisdiction under Article 226 of the Constitution. " ( 3 ) LEARNED Advocate, Mr. H. K. Patel, appearing for the petitioners submitted that the petitioners are sought to be falsely implicated and they, therefore, may be granted protection in terms of the prayers made in the petition, in exercise of extraordinary jurisdiction under Article 226 of the Constitution. He submitted that, prima facie, offence under the Atrocities Act is not made out and, therefore, powers may be exercised. He also submitted that the petitioners are not seeking anticipatory bail, but they are seeking a direction on the Investigating Officer to release them on bail in the event of their arrest in connection with the said offence or, in the alternative, they seek protection of this Court to surrender to the custody of the Special Court, Banaskantha, with a further permission to prefer an application for regular bail under Section 439 of the Code of Criminal Procedure and a direction to the Special Court to decide the said application on the same day and the petitioners may be treated to be in deemed custody of the Court till final disposal of the said application. Learned Advocate, Mr. Patel, has relied on certain orders passed by co-ordinate Benches of this Court and submitted that, likewise, this Court may exercise discretion in favour of the petitioners. ( 4 ) THE petition is opposed to by learned Additional Public Prosecutor, Mr. Pujari. He submitted that, in light of the provisions contained under the Atrocities Act, persons accused of the offences punishable under the said Act are not entitled to prefer anticipatory bail as the applicability of the said provision of the Code of Criminal Procedure has been specifically barred by Section 18 of the Act. He submitted that, in light of the Apex Court decision in Sunita Devi v. State of Bihar and Another, (2005) 1 SCC 608 , for entertaining an application under Section 439 of the Code of Criminal Procedure, the accused is supposed to be in custody and, therefore, the relief sought in this petition may not be granted. Mr. Pujari further submitted that when the decisions relied upon by the learned Advocate for the petitioners were rendered by co-ordinate Benches, the Apex Courts decision in the case of Sunita Devi (supra) was not rendered and, therefore, the orders may not be of any help to the petitioners. He, therefore, urged that the petition may be dismissed. Mr. Pujari further submitted that when the decisions relied upon by the learned Advocate for the petitioners were rendered by co-ordinate Benches, the Apex Courts decision in the case of Sunita Devi (supra) was not rendered and, therefore, the orders may not be of any help to the petitioners. He, therefore, urged that the petition may be dismissed. ( 5 ) UNDISPUTEDLY, this is a petition under Article 226 of the Constitution, praying for exercise of extraordinary writ jurisdiction by this Court for the reliefs sought in the petition. IT is a settled proposition of law that where ordinary law of the land contains a provision under which relief can be sought, extraordinary powers of issuing writ are ordinarily not to be exercised. It has been held by this Court in Harivallabh Parikh v. State of Gujarat, 1997 (1) GLR 638 that a petition under Article 226 of the Constitution seeking direction not to arrest the petitioner not to be entertained as alternative remedy under Section 438 of the Code of Criminal Procedure is available. IT is also a settled proposition of law that extraordinary writs can be issued to supplement the rule of law and not to circumvent a specific provision of law. Writ powers are not to be exercised against a specific provision of a statute to protect an individual right unless vires of the provision is challenged and it is held to be ultravires. It has been held by the Apex Court in Karnataka State Road Transport Corporation v. Ashrafulla Khan and Ors. , (2002) 2 SCC 560 that under Article 226, High Court is required to enforce rule of law and, therefore, it cannot pass an order or direction contrary to what has been injuncted by law. ( 6 ) WITH the above settled proposition of law, if the present case is examined, the prayer made in paragraph 17 (a) is virtually a prayer for grant of anticipatory bail. The language in the prayer is virtually borrowed from Section 438 of the Code of Criminal Procedure and, therefore, the relief sought, in substance, is anticipatory bail, although the learned Advocate for the petitioners has canvassed repeatedly that the petitioners have not prayed for anticipatory bail, but they pray only for a direction. The language in the prayer is virtually borrowed from Section 438 of the Code of Criminal Procedure and, therefore, the relief sought, in substance, is anticipatory bail, although the learned Advocate for the petitioners has canvassed repeatedly that the petitioners have not prayed for anticipatory bail, but they pray only for a direction. SECTION 18 of the Atrocities Act specifically bars application of Section 438 of the Code of Criminal Procedure in respect of offences under the said Act. A plain reading of the F. I. R. indicates that the petitioners are facing charges of offenes under the Atrocities Act. It is canvassed by the learned Advocate for the petitioners that, prima facie, offence under the Atrocities Act is not made out. However, if the F. I. R. is read, the utterances imputed to the petitioners, prima facie, cannot be said to be not constituting offence punishable under the Atrocities Act and, therefore, it cannot be said that the bar under Section 18 of the Atrocities Act will not be applicable to the present case. IT is not required of this Court to examine the question at this very primary stage whether offence under Atrocities Act is made out or not. In fact, in light of the decision of the Supreme Court in State of M. P. v. Rustam and Others, (1995) 3 SCC 221 , power under Section 438 cannot be exercised in relation to offence punishable under the Atrocities Act. Therefore, the contention of the learned Advocate, Mr. Patel, in this regard cannot be accepted. IF the contention of learned Advocate, Mr. Patel, in support of prayer 17 (a) is accepted, the result would be that a relief which is specifically prohibited by a statute will be granted by this Court in exercise of extraordinary writ jurisdiction, which proviso is aimed at supplementing the rule of law and not circumventing the provisions of law. If the petition is accepted and prayer for direction as per paragraph 17 (a) is granted in exercise of extraordinary writ powers under Article 226 of the Constitution, it would virtually amount to deletinng the provision contained in Section 18 of the Atrocities Act or rendering it nugatory or ineffective. If the petition is accepted and prayer for direction as per paragraph 17 (a) is granted in exercise of extraordinary writ powers under Article 226 of the Constitution, it would virtually amount to deletinng the provision contained in Section 18 of the Atrocities Act or rendering it nugatory or ineffective. A relief prohibited under a statute cannot be permitted to be obtained under the garb of invoking of powers under Article 226 of the Constitution and, therefore, the relief in prayer 17 (a) cannot be granted. ( 7 ) SO far as the relief sought under prayer clause (b) of paragraph 7 is concerned, it may be stated, at the outset, that no permission is required to be granted by this Court to the applicant for surrendering himself before any authority, including, Special Court, Banaskantha. No permission is required to be obtained from this Court for preferring an application under Section 439 of the Code of Criminal Procedure either, as it is a statutory right. The question of giving any direction to the Special Court also does not arise in absence of any matter before it. No direction is required to be given in anticipation of an action. It may also be noted here that the applicants are not in custody and even if they seek bail under Section 439 of the Code of Criminal Procedure, for entertaining an application under Section 439, they have to be in custody, as has been held by the Apex Court in Sunita Devis case (supra ). Therefore also, no direction can be issued by this Court, which runs contrary to the decision of the Apex Court, which is the law of the land. ( 8 ) IN substance, the petitioners are not entitled to either of the principal reliefs and, therefore, there is no question of granting any interim relief, as prayed for in prayer clause (c) of paragraph 17 of the petition. ( 9 ) THE orders relied upon by learned Advocate, Mr. Patel, rendered by co-ordinate Benches of this Court in various cases, if perused, indicate that they were rendered prior to the decision of the Apex Court in Sunita Devis case. That apart, none of the order settles any absolute proposition of law or lays a ratio decidendi that powers under Article 226 of the Constitution can be exercised dehors the provisions contained in Section 18 of the Atrocities Act. That apart, none of the order settles any absolute proposition of law or lays a ratio decidendi that powers under Article 226 of the Constitution can be exercised dehors the provisions contained in Section 18 of the Atrocities Act. In none of these cases, petition was entertained. Only some observations are made, probably, in facts of the case, while permitting the withdrawal of the petitions. In the instant case, no observations are required to be made by this Court in view of the foregoing discussion. In the opinion of this Court, therefore, these decisions cannot help the petitioners. ( 10 ) IN light of the above discussion, the petition is devoid of merits and powers under Article 226 of the Constitution are not required to be exercised in favour of the petitioners. The petition, therefore, stands dismissed. Rule is discharged. .