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2016 DIGILAW 2143 (GUJ)

Hitendra Jagannath Chaudhari v. State of Gujarat

2016-10-21

PARESH UPADHYAY

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JUDGMENT : Paresh Upadhyay, J. This is an application for anticipatory bail. 2. The applicant apprehends his arrest in connection with FIR being CR-I No. 48 of 2016 registered with the DCB Police Station, Ahmedabad, for the offences punishable under Section 306 of the Indian Penal Code and Sections 3(1)(r) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989. The applicant is a Police Inspector, who at the relevant time was working under the Ahmedabad Police Commissionerate and the deceased was his Police Constable. 3. Learned advocate for the applicant has submitted that, the applicant is a Police Inspector and the deceased was a Police Constable working under him. He has taken this Court through the narration in the complaint line-by-line, the time gap between the occurrence and filing of FIR, the sickness/tendency on the part of the deceased of frustration/depression, which led to his unfortunate death. He has extensively referred to and taken this Court through the material on record to contend that, under no circumstances, the applicant could be said to have abetted the suicide committed by the Constable. It is submitted that, this application be allowed on merits. Reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Chitresh Kumar Chopra v. State (G.N.C.T.) of Delhi reported in (2009) 16 SCC 605 . 3.1. Without prejudice to the above, learned advocate for the applicant has further submitted that, the death of the Constable had nothing to do with his caste, and invoking the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989 ('the Atrocity Act' for short) in the present case, is just to make this application not maintainable. It is submitted that, such an application can not mechanically be rejected as not maintainable, since not only it is within the power of the Court, but duty is also cast upon the Court to find out as to whether, prima facie any offence is made out under the Atrocity Act. It is submitted that, such an application can not mechanically be rejected as not maintainable, since not only it is within the power of the Court, but duty is also cast upon the Court to find out as to whether, prima facie any offence is made out under the Atrocity Act. On the aspect of maintainability of this application, heavy reliance is placed by the learned advocate for the applicant on the decisions of Hon'ble the Supreme Court of India in the case of Vilas Panduranga Pawar v. State of Maharashtra reported in (2012) 8 SCC 795 and in the case of Gorige Pentaiah v. State of Andhra Pradesh reported in (2008) 12 SCC 531 . Reliance is also placed on the judgment of this Court in the case of Hareshbhai Dhirubhai Danger and others v. State of Gujarat and another recorded on Criminal Misc. Application No. 12577 of 2016 and cognate matters dated 10.10.2016 ( 2017 (3) GLR 1919 ). It is submitted that, this application be considered and allowed on merits. 4. Learned Additional Public Prosecutor and learned advocate for the complainant both have contested this application on maintainability and also on merits. It is submitted that, in view of the bar of Section 18 of the Atrocity Act, this application need not be considered on merits at all. It is further submitted that, even on merits, the application needs to be rejected. 5. Learned Additional Public Prosecutor has made available to this Court, the material gathered during the course of investigation so far, to contest this application, inter alia on the ground that, the applicant is working as a Police Inspector. He has antecedents to his discredit, including brow-bitting his superiors. It is submitted that, the applicant had entered into a transaction of accepting bribe from a bootlegger, through the deceased, to show some favour. It was the case of the deceased that even then the said bootlegger was not favoured and the Inspector was not returning money either. It is submitted that, the Constable could not repay that amount, nor could he withstand the pressure either from the said antisocial element and/or from the Police Inspector (the applicant). It is submitted that, there is material with the investigating agency to support this theory. The said material is made available to this Court for perusal. It is submitted that, this application be dismissed on merits. 6. It is submitted that, there is material with the investigating agency to support this theory. The said material is made available to this Court for perusal. It is submitted that, this application be dismissed on merits. 6. Two issues crop up for consideration. Whether, on merits, the applicant should be granted anticipatory bail or not. However before that, the issue is, whether, in view of the provision of Section 18 of the Atrocity Act, this application can at all be considered on merits, since the provisions of the Atrocity Act are also invoked in the FIR in question. 7. So far the maintainability of this application is concerned, this Court finds as under. 7.1. Section 18 of the Atrocity Act stipulates restriction on entertaining an application for anticipatory bail in exercise of powers under Section 438 of the Code of Criminal Procedure, 1973. The scope and ambit thereof fell for the consideration of Hon'ble the Supreme Court of India in various decisions. One of such decisions, which holds the field is Vilas Pandurang Pawar (supra). Para 9 of the said decision reads as under. "9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail." 7.2. Following the above ratio, and other orders of the Coordinate Benches of this Court, this Court has, in the case of Hareshbhai Dhirubhai Danger (supra), held that, in the cases where the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are alleged to have been violated, before rejecting an application for anticipatory bail as not maintainable, it is the duty of the Court and therefore the Court has to see as to whether an offence under Section 3 of the said Act has prima facie been made out or not. For this limited inquiry also, very strict standards should be applied by the Court against the accused and in favour of the complainant/victim. For this limited inquiry also, very strict standards should be applied by the Court against the accused and in favour of the complainant/victim. After applying such standard, if on facts it is found that the offence under the Atrocities Act is prima facie not made out, then such an application needs to be considered on merits. It may happen that, on merits, the applicant may not be entitled to anticipatory bail, but even to reject such an application on merits, such an application has to be accepted as maintainable first. It is this exercise which needs to be undertaken by the Court as mandated by the Supreme Court of India, as noted above. 7.3. If the facts of the present case are examined, keeping in view the above proposition of law, and the parameters and safeguards indicated by Hon'ble the Supreme Court of India in the case of the Sidhdharam Satllingappa Mhetre v. State of Maharashtra reported in (2011) 1 SCC 6942, this Court finds that, even if the say of the deceased (as emerging from the so-called suicide note and/ or the script of the audio-video clippings) and also the say of the complainant - wife is accepted on its face value, no offence is made out under the Atrocity Act. It needs to be noted that, the very foundation of the complaint is that the dispute was the settlement of account of bribe received by the applicant (Police Inspector) through the deceased (Police Constable) from a bootlegger. The theory of the prosecution is that, the applicant had accepted bribe from a bootlegger, through the deceased, to show some favour. It was the grievance of the deceased that, even then the said bootlegger was not favoured and the Inspector was not returning money either. The deceased - constable could not repay that amount, nor could he withstand the pressure either from the said anti-social element and/or from the Police Inspector (the applicant). What has happened is unfortunate, but it has nothing to do with the caste of the deceased. This application therefore needs to be considered on merits, independent of the provisions of the Atrocity Act. 8. Having held that this application needs to be considered on merits, the next question is as to whether, on merits the applicant needs to be granted protection under Section 438 of the Code of Criminal Procedure, 1973. This application therefore needs to be considered on merits, independent of the provisions of the Atrocity Act. 8. Having held that this application needs to be considered on merits, the next question is as to whether, on merits the applicant needs to be granted protection under Section 438 of the Code of Criminal Procedure, 1973. Having heard learned advocates for the respective parties and having considered the material on record and which is made available to this Court by the learned Additional Public Prosecutor, this Court finds that, though the deceased was not a saint, as the case pleaded on his behalf is pertaining to the settlement of account of bribe received by the Police Inspector through him from a bootlegger, there is material to indicate that if the effective questioning of the applicant is not permitted to the investigating agency, it would send wrong signals to the society on the whole. Further, there is also antecedent to the discredit of the applicant of brow-bitting his superior police officers and even registration of FIR in that regard. The material gathered during the course of investigation, as made available to this Court, supports the theory of the prosecution that there is substance in the allegations made against the applicant. Considering the totality, this Court finds that, it would be imprudent for this Court, in the facts of this case, to exercise discretion in favour of the applicant. This application therefore needs to be dismissed. 9. For the reasons recorded above, this application is dismissed. Rule is discharged. 10. At this stage, learned advocate for the applicant has submitted that, the interim protection which is operating in favour of the applicant, be continued for some time. This request is opposed by the contesting parties. Considering the totality, it is ordered that, interim protection granted earlier by this Court, in favour of the applicant, shall continue for a period of four weeks from today.