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2018 DIGILAW 1058 (GUJ)

Dhankesh v. State of Gujarat

2018-09-05

A.Y.KOGJE

body2018
JUDGMENT & ORDER : A.Y. Kogje, J. This Appeal is filed by the appellant under Section 14(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR registered as C.R. No.II-17/2018 before Gorwa Police Station, Vadodara City for the offences under Sections 504, 506(2) and 114 of the Indian Penal Code and under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Learned advocate appearing on behalf of the appellant would submit that considering the nature of offence, the appellant may be enlarged on anticipatory bail by imposing suitable conditions. 3. On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has opposed this appeal and granting anticipatory bail to the appellant looking to the nature and gravity of the offence. Learned APP submitted that in view of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, anticipatory bail may not be granted. 4. I have heard the learned Advocates appearing for the respective parties and perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the appellant accused and without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the appellant. Considering the judgment of this Court in the case of Hareshbhai Dhirubhai Danger Vs. State of Gujarat & Anr., (2017) 1 GCD 378, wherein it is held that anticipatory bail appeal can be considered in the offence related to Atrocities Act after undertaking exercise as contemplated in the judgment, the appeal deserves consideration. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., (2011) 1 SCC 694 , wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., reported at (1980) 2 SCC 665 . 5. 5. Following aspects are also considered:- (I) Learned Advocate for the appellant submits that the present First Information Report is a malafide complaint and is only an attempt to arm twist as against the complainant, departmental proceedings had been initiated and his services were terminated on 20.11.2017, following which, the complainant has resorted to the proceedings before the Labour Court; (II) Submission of learned advocate for the appellant that the appellant was working as a Manager and therefore, on account of the representation made by the students occupying the hostel regarding the inefficient work of the complainant and his misbehaviour with the students which had compelled the appellant to take departmental action against the complainant; (III) It is submitted that considering this fact situation, possibility of false involvement of the appellant and creating an incident which never occurred cannot be ruled out, more particularly, when the allegations regarding the provident fund and ESI Card are not within the powers of the appellant but are directly the responsibility of the employees; (IV) Submission of learned Advocate for the appellant that even the other employees belonging to the Scheduled Caste and Scheduled Tribe who are employed under the appellant have made representation to the police authorities about the misbehaviour of the complainant; (V) Submission of learned Advocate for the appellant that in the First Information, allegations are made against two accused persons namely the appellant and co-accused Deepak Dahyabhai Parmar. The Sessions Court while considering the application for anticipatory bail for the co-accused Deepak Dahyabhai Parmar has observed in the order the existence of offences under Sections 504, 506(2) and 114 of the Indian Penal Code against the appellant; however, has proceeded to exercise discretion while granting anticipatory bail to the co-accused. It is submitted that the appellant is also facing the same allegations and hence, the Appeal deserves consideration on the ground of parity. (VI) Learned Advocate for the appellant has drawn attention of this Court to the judgment of this Court in the case of Hareshbhai Dhirubhai Danger v. State of Gujarat and Others, (2017) 2 GLH 272 wherein in Paragraph 9, it is observed as under :- "9. (VI) Learned Advocate for the appellant has drawn attention of this Court to the judgment of this Court in the case of Hareshbhai Dhirubhai Danger v. State of Gujarat and Others, (2017) 2 GLH 272 wherein in Paragraph 9, it is observed as under :- "9. In view of above it is held that, in the case where the provision of the Scheduled Castes and the Scheduled Tribues (Prevention of Atrocities) Act, 1989 are alleged to have been violated, before rejecting an application for anticipatory bail is 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. 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." (VII) Learned Advocate for the appellant has also drawn attention of this Court to the judgment of the Supreme Court in the case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Another, (2018) 6 SCC 454 wherein in Paragraphs 55, 56 and 57, it is observed as under :- "55. In the present context, wisdom of legislature in creating an offence cannot be questioned but individual justice is a judicial function depending on facts. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently malafide version is put forward. Courts have inherent jurisdiction to do justice and this jurisdiction cannot be intended to be excluded. Thus, exclusion of Court's jurisdiction is not to be read as absolute. 56. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently malafide version is put forward. Courts have inherent jurisdiction to do justice and this jurisdiction cannot be intended to be excluded. Thus, exclusion of Court's jurisdiction is not to be read as absolute. 56. There can be no dispute with the proposition that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny. Thus, exclusion of provision for anticipatory bail cannot possibly, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. If this interpretation is not taken, it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be black mailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the scenario in a civilized society. Similarly, even a non public servant can be black mailed to surrender his civil rights. This is not the intention of law. Such law cannot stand judicial scrutiny. It will fall foul of guaranteed fundamental rights of fair and reasonable procedure being followed if a person is deprived of life and liberty. Thus, literal interpretation cannot be preferred in the present situation. 57. Applying the above well known principle, we hold that the exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the Atrocities Act is made. On the other hand, if it can be shown that the allegations are prima facie motivated and false, such exclusion will not apply." (VIII) Submission on behalf of the respondent No.2 to the effect that the allegations so far the appellant is concerned, who does not belong to Scheduled Caste and Scheduled Tribe will have to be taken into consideration. Moreover, such allegations are supported by the version given by two independent witnesses namely Sonalben and Binduben. Moreover, such allegations are supported by the version given by two independent witnesses namely Sonalben and Binduben. These witnesses are supporting the case of the prosecution with regard to the threats issued to the complainant by the appellant; (IX) Considering the aforesaid facts and circumstances of the case, the Court is of the view that there is a long delay in registering the First Information Report and that such registration is preceded by a action by the appellant on the basis of the representation regarding the complaints received against the work of the complainant and other attending circumstances. Hence, the Court is of the view that the complaint appears to be a motivated complaint and therefore, the exercise of powers under Section 438 of the Code would be permissible; (X) Even from the allegations in the FIR, no ingredients are made out so as to attract offences under the Atrocities Act and; (XI) Learned Additional Public Prosecutor under the instructions of the IO is unable to bring on record any special circumstances against the appellant. 6. Learned Advocate for the appellant on instructions states that the appellant is ready and willing to abide by all the conditions, including impositions of conditions with regard to the powers of Investigating Agency to file an appeal before the competent court for his remand. He would further submit that upon filing of such appeal by the Investigating Agency, the right of appellant accused to oppose such appeal on merits may be kept open. 7. In the result, the present appeal is allowed by directing that in the event of arrest of the appellant herein in connection with FIR registered as C.R. No.II-17/2018 before Gorwa Police Station, Vadodara City, the appellant shall be released on bail on his furnishing a personal bond of Rs. 7. In the result, the present appeal is allowed by directing that in the event of arrest of the appellant herein in connection with FIR registered as C.R. No.II-17/2018 before Gorwa Police Station, Vadodara City, the appellant shall be released on bail on his furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety of the like amount on the following conditions that he shall: (a) cooperate with the investigation and make himself available for interrogation whenever required; (b) remain present at the concerned Police Station on 11th SEPTEMBER, 2018 between 11.00 a.m. and 2.00 p.m.; (c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer; (d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an appeal for remand if he considers it proper and just and the learned Magistrate would decide the same on merits; 8. Despite this order, it would be open for 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 appeal 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 appeal of the prosecution for police remand. This is, however, without 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. This is, however, without 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. 9. At the trial, the Trial Court shall not be influenced by the prima-facie observations made by this Court while enlarging the appellant on bail. 10. The appeal is allowed in the aforesaid terms. Direct Service is permitted.