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2019 DIGILAW 17 (GUJ)

MAHESHKUMAR RAVIDAN MOD v. STATE OF GUJARAT

2019-01-11

S.H.VORA

body2019
JUDGMENT S H VORA, J. 1. Admit. Learned APP Ms. CM Shah waives service of notice of admission for the respondent State and learned advocate Ms. Bhoomi Thakore waives service of notice of admission for respondent No.2 - original complainant. 2. Vide order dated 31.12.2018, the learned Sessions Judge, Gandhinagar rejected the application of the appellant being Criminal Misc. Application No.2036 of 2018 filed u/s 438 of the Code of Criminal Procedure, 1973 to enlarge the appellant on anticipatory bail in the event of his arrest on account of offence being registered vide I C.R. No.55 of 2018 for the offences punishable u/s 324, 326, 506(2), 114, 120B, 143, 147, 148, 149 of the Indian Penal Code and also u/s 3(2)(5) and 3(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "SC/ST Act"). 3. Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14A of the SC/ST Act. 4. Brief facts as stated in the FIR in sum and substance are like this:- 4.1 The complainant is a social worker and having post of President of Stall Union of Gandhinagar. The complainant is having Auto Garage, namely, Brahmadi situated at Sector 22 near G-6 and owns an Auto Rikshaw bearing No.GJ-18-AU3463. That on 19.4.2018 at about 1:45 pm near G-6 Circle from where the complainant had reached his garage, and when the complainant was on his way to his home, one black motorcycle was following him and suddenly that motorcycle came in the way of complainant's auto rickshaw and asked the complainant to stop the auto and three persons had come to the complainant with knife and had knife blow near the left side of waist and when the complainant tried to escape, two accused had blown knife in the neck of the complainant and had run away. After this incident, the complainant himself went to the Civil Hospital for medical treatment and from the Hospital, present FIR came to be lodged. 5. Having considered the rival submissions, it appears that the provisions of SC/ ST Act have been invoked against the appellant with the charge u/s 324, 326, 506(2), 114 and 120- B, 143, 147, 148 and 149 of the Indian Penal Code. 5. Having considered the rival submissions, it appears that the provisions of SC/ ST Act have been invoked against the appellant with the charge u/s 324, 326, 506(2), 114 and 120- B, 143, 147, 148 and 149 of the Indian Penal Code. However, necessary averment that the accused person is not the member of the SC/St for invoking provisions of section 3 of the SC/ST Act is missing in the FIR. In similar circumstances, in Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in, (2008) 12 SCC 531 , the FIR itself was quashed. Thus, in absence of such averment, principally, the case against the appellant is rested on 324, 326, 506(2), 114, 120B, 143, 147, 148, 149 of the Indian Penal Code. It appears that the appellant was not present at the scene of offence, but he is charged with the offence punishable u/s 120-B of the Indian Penal Code. There is no any evidence available on record to show that any conspiracy is hatched, wherein the appellant was party to it. But, reliance has been made on the statement of accused persons recorded after arrest is of no use. 6. Learned advocate Ms. Thakore for the respondent No.2 objected the appeal on the premise that if some important details, more particularly, with respect to requirement under the provisions of the SC/ST Act is missed or not stated may not be a ground to doubt the contents of the FIR and for such purpose, she has placed reliance in case of Latesh @ Dadu Baburao Karlekar Vs. State of Maharashtra reported in, (2018) AIR SC 659. Reliance placed on the judgment is misplaced. In matter under the provisions of the SC/ST Act, the averment to the effect that the accused person is not the member of SC/ST is mandatory and therefore, submission of report by the police authority to add provisions of SC/ST Act on premise that the appellant belonged to general caste cannot dispense with the requirement of law. Similarly, learned advocate appearing on behalf of the respondent No.2 placed reliance on the amended provision u/s 18A so as to contend that section 438 of the Code would not apply to a case under SC/ST Act. Similarly, learned advocate appearing on behalf of the respondent No.2 placed reliance on the amended provision u/s 18A so as to contend that section 438 of the Code would not apply to a case under SC/ST Act. In case on hand, when required mandatory averments are missing in the FIR itself, the provisions of SC/ST Act would not come into play and therefore, amended provisions u/s 18A will not help the respondent No.2. 7. It also appears that the appellant has also lodged one FIR being I C.R. No.79 of 2017 against the complainant and others for the offences punishable u/s 504, 506(2) and 186 of the Indian Penal Code and therefore, false implication of the appellant cannot be ruled out at this stage. In view of above facts emerging on record, present appeal requires to be accepted and accordingly, it is hereby allowed. 8. In the result, present criminal appeal is allowed and the impugned order dated 31.12.2018 passed by learned 3rd Additional Sessions Judge, Gandhinagar in Criminal Misc. Application No.2036 of 2018 is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs.10,000/- with surety of like amount on the following condition that the appellant shall:- (a) cooperate with the investigation and make available for interrogation whenever required; (b) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer; (c) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (d) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (e) 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; 9. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. 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 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 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. 10. 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.