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Gujarat High Court · body

2018 DIGILAW 976 (GUJ)

Alpesh Shaharbhai Rabari v. State of Gujarat

2018-08-10

P.P.BHATT

body2018
JUDGMENT AND ORDER : P.P. Bhatt, J. Leave to amend the prayer clause. 2. These appeals are filed by the appellants under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity, 'the Atrocity Act') against orders dated 17.04.2018 passed by the learned 3rd (Ad hoc) Additional Sessions Judge, Sabarkantha, Idar in Criminal Misc. Application Nos. 280 of 2018 and 249 of 2018 respectively for Anticipatory Bail under Section 438 of the Criminal Procedure Code, 1973 (for brevity, 'the Code') in connection with FIR registered at C.R. No. I-26 of 2017 with Kheroj Police Station, District: Sabarkantha for the offences punishable under Sections 302 and 114 of the Indian Penal Code, 1860 (for short, 'the IPC') and Sections 3(2)(v) of the Atrocity Act, which came to be rejected. 2. Heard, Mr. A. D. Shah, the learned advocate for the appellant in Criminal Appeal No. 458 of 2018 and Mr. Ekant Ahuja, the learned advocate for the appellant in Criminal Appeal No. 459 of 2018 and the learned Additional Public Prosecutors for the respondent State as well as Ms. Megha Jani, the learned advocate for the original complainant, in the respective appeals. 2.1 The learned advocates for the appellants submit that the appellants are innocent persons, however, they have been falsely implicated in the crime in question. It is submitted that the appellants are police personnel, one being Police Sub Inspector and other being Police Constable and they had been performing their legitimate duty. They submitted that, in fact, the deceased fall in bathroom due to ill health and sustained injuries and the said fact can be substantiated by the statements witnessing inmates and thus, it cannot be termed or treated as custodial death. Besides, other persons, who had been interrogated by the appellants during the course of investigation, have stated that the deceased was not beaten by the police. They have categorically stated that they were threatened but never beaten. It is also submitted that the complaint is in question also lodged belatedly. The learned advocates for the appellants submitted that even before the learned Magistrate when the accused were produced after police remand, there was no complaint made before the learned Magistrate about any such ill-treatment accorded during police custody. It is submitted that father and two sons were in police custody and it is doubtful that only father complains about such beating. It is submitted that father and two sons were in police custody and it is doubtful that only father complains about such beating. It is submitted that the deceased was suffering from high blood pressure and diabetes and the said fact is also substantiated by the entry on record as well as from the statement of the witnesses. He submitted that Section 3(2)(5) of the Atrocity Act would not come into play in case of accidental death, which in present case is applied and it comes into play only when it is homicidal death. The learned advocates for the appellants further submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the appellants are police personnel and are available during the course of investigation and will not flee from justice. In view of the above, the appellants may be granted anticipatory bail. In support, learned advocate Mr. Shah referred and relied upon a decision in the case of Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and Another. 2.2 The learned advocates for the appellants, on instructions, states that the appellants will abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for remand. They would further submit that upon filing of such application by the Investigating Agency, the right of appellants to oppose such application on merits may be kept open. 2.3 The learned advocates for the appellants further, on instructions, submit that without prejudice to their rights and contentions in the case, the appellants are ready and willing to deposit a sum of Rs. 5 lakh and Rs. 2 lakh respectively in CR.A Nos. 458 and 459 of 2018 and the appellants have no objection if the said amount is disbursed to the family of the deceased, however, they request that, for deposit, some time may be given. They also request that the aforesaid may not be construed as admission of guilt on the part of the appellants. 3. 458 and 459 of 2018 and the appellants have no objection if the said amount is disbursed to the family of the deceased, however, they request that, for deposit, some time may be given. They also request that the aforesaid may not be construed as admission of guilt on the part of the appellants. 3. The learned Additional Public Prosecutors as well as the learned advocate for the original complainant oppose the present appeals and submit that looking to the nature and gravity of offence, present appeals may be dismissed as looking to the FIR and other investigation papers collected by the Investigating Officer, there appears prima facie case against the present appellants. The learned Additional Public Prosecutor submitted that there is oral dying declaration recorded of deceased, which substantiates the fact of the offence against the appellants. Besides, on the aspect of delay in lodging FIR, the learned Additional Public Prosecutor submitted that initially janvajog entry was registered and thereafter, appropriate proceedings have been carried out and accordingly, it cannot be termed as delay in lodging complaint. The learned advocate for the original complainant that the medical officer who has performed post mortem of the deceased has categorically stated at page 84 that these injuries can be caused due to beating by wooden logs. The cause of death is due to injury on head. She took away to page 81 also and submitted that there is prima facie case against the present appellants. She took this Court to the provisions of the Atrocity Act viz. Section 18 of the Act and submitted that the said provisions shall apply automatically. In view of the deposition of doctor, Section 18 of the Atrocity Act would very well apply in the case on hand. She submitted that the sons of the deceased have categorically expressed their fear in not complaining such ill-treatment. She said that in any case, in the appeals, the orders of the lower Court are not challenged and accordingly, technically, these appeals are not maintainable. In any case, the order passed by the learned Court below is well reasoned and accordingly, this Court may not interfere in appeal. 4. She said that in any case, in the appeals, the orders of the lower Court are not challenged and accordingly, technically, these appeals are not maintainable. In any case, the order passed by the learned Court below is well reasoned and accordingly, this Court may not interfere in appeal. 4. Regard being had to the submissions made by the learned advocates for the parties and perusing the papers on record and as well as taking into consideration the facts of the case, nature of allegations, gravity of offence, role attributed to the appellants, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the appellants. 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 has reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., (1980) 2 SCC 565 . This Court has also considered the decision rendered by the Hon'ble Apex Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another, in Criminal Appeal No. 416 of 2018 dated 20.03.2018, more particularly, para 53, 54, 55, 56, 57, 61 and 63. 5. In the result, the present appeals are allowed and the impugned orders, as aforesaid, are hereby set aside. It is directed that in the event of appellants herein being arrested pursuant to the above referred FIR, they shall be released on bail on furnishing the personal bond of Rs. 5. In the result, the present appeals are allowed and the impugned orders, as aforesaid, are hereby set aside. It is directed that in the event of appellants herein being arrested pursuant to the above referred FIR, they shall be released on bail on furnishing the personal bond of Rs. 10,000/- (Rupees Ten thousand only) each with one surety each of like amount on the following conditions: (a) shall cooperate with the investigation and make themselves available for interrogation whenever required; (b) shall remain present at concerned Police Station on 20.08.2018 between 11.00 a.m. and 2.00 p.m.; (c) shall 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 from disclosing such facts to the Court or to any police officer; (d) shall 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) shall at the time of execution of bond, furnish the addresses to the investigating officer and the Court concerned and shall not change residences till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the trial Court within a week; (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; (h) without prejudice to the rights and contentions of the either side, the appellant of Cr.A. No. 458 of 2018 shall deposit Rs. 5 lakh and the appellant of Cr.A. No. 459 of 2018 shall deposit Rs. 2 lakh before the concerned trial Court within a period of two months and shall not claim refund of the said amount in any case. On such deposit being made, the trial Court concerned shall disburse the said amount to the family of the deceased through original complainant, on proper verification, following due procedure. 6. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the appellants. The appellants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. 6. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the appellants. The appellants shall remain present before the learned Magistrate on the first date of hearing of such application 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 application 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. It is clarified that the appellants, 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. 7. At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. 8. The Court deems it just and proper to consider the victim compensation angle. The State Government has formulated Victim Compensation Scheme under Section 357(A) of the Code so as to provide compensation to the victim who has suffered loss or injury on account of offence against body. The Victim Compensation Scheme is introduced with a laudable object of rehabilitation of the victim/his dependents. Instant is case in which, one person has lost life. Therefore, the Chairman, District Legal Services Authority (DLSA), Sabarkantha, is directed to take necessary steps for providing appropriate compensation to the victim/his family under the Victim Compensation Scheme. It is clarified that the said compensation shall be over and above the aforesaid compensation offered by the appellants. The action taken report be placed before this Court within a period of one month. 9. The appeals are disposed of accordingly. Direct service is permitted. 9.1 A copy of this order be sent to the Chairman, DLSA, Sabarkantha for compliance.