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2019 DIGILAW 291 (GUJ)

Mahmedbhai Jalalbhai Shaikh v. State Of Gujarat

2019-04-02

A.P.THAKER

body2019
JUDGMENT : A.P. THAKER, J. 1. Admit. Ms.Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of admission for respondent No.1 and Mr.Nilesh Jani, learned advocate waives service of notice of admission for respondent No.2. 2. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocity Act” for short) at the instance of the appellants original accused for the anticipatory bail in connection with the FIR being C.R.No. I - 42/2012 registered with Vankaner City Police Station, District: Rajkot Rural for the offences under Sections 143, 186, 504, 506(1) of the Indian Penal Code, Section 3(1) of the Prevention of Damages to the Public Properties Act, 1984 and Section 3(1)(x) of the Atrocity Act. 3. Brief facts of the present appeal are that respondent No.2, who was Taluka Development Officer (TDO) has filed the complaint on 02.09.2012, at 17.15 hours for the incident of 27.08.2012 alleging that on that day, the appellants and other persons met the TDO for sanctioning payment of water pipeline for Village : Tithava, some altercation was initiated and during that altercation, the present appellants have used derogatory language to his caste and abused him and threaten him and damage the public property and thereby committed the said offence. 3.1 It is alleged by the appellants that the complaint has been filed after 7 days and at the relevant time, appellant No.1 was sarpanch of Village : Tithava and appellant No.2 was the member of Tithava Gram Panchayat, whereas, appellant No.3’s wife was President of Vankaner Taluka Panchayat and appellant No.3 was sitting MLA from Vankaner Constituency and appellant No.5 is local leader of Village : Tithava and as there was crises of drinking water and payment was not made by the TDO under political pressure though pipeline has been laid. There was agitation done and protest march was carried out to the office of the TDO, which was not sanctioning the payment for water pipeline despite resolution being passed by Vankaner Taluka Panchayat approving the said project. It is further alleged that as per the complaint, the complainant has filed the complaint after discussion with higher officers and from 29.08.2012 to 01.09.2012, the complainant was busy in various government programmes and, therefore, the complainant filed the complaint, thereafter. It is further alleged that as per the complaint, the complainant has filed the complaint after discussion with higher officers and from 29.08.2012 to 01.09.2012, the complainant was busy in various government programmes and, therefore, the complainant filed the complaint, thereafter. It is further alleged by the appellants that at the relevant time, the complainant has filed Special Criminal Application for quashing of the said complaint and this Court protected the appellants by directing respondents not to take coercive actions against the appellants and while hearing aforesaid petition, it was withdrawn and the interim protection was continued till 21.12.2018. 3.2 It is alleged that the trial Court has failed to appreciate that there is no prima facie material to substantiate the charge under the Atrocity Act, what was stated in the complaint is that the accused have asked him why he was serving here being people from Scheduled Caste and Scheduled Tribe. It is alleged that there is no allegation of giving abuse pertaining to his caste. It is further alleged that the complainant is a Class II gazetted officer and he has taken 7 days time in filing the complaint and it has been filed intentionally and under political pressure with a view to damage the reputation of the appellants. It is further alleged that the trial Court has failed to appreciate the decision of the Supreme Court, wherein it has also held that bar to grant anticipatory bail is not absolute and applies only when prima facie case of commission of offence under Act of 1989 is made out and if the allegations of offence are found to be prima faice motivated and false, exclusion of Section 438 of the Criminal Procedure Code would not apply. According to them, there is no prima facie case relating to disclosure of the offence under the Atrocity Act and, therefore, the Court has ample power under Section 438 of the Criminal Procedure Code for granting anticipatory bail. 3.3 It is further alleged that the appellants are not likely to run away and are not likely to temper or hamper with the investigation and considering the decision of this Court in the case of Pankaj D. Suthar Vs. State of Gujarat, (1992) 1 GLR 405 and decision of the Apex Court in the case of Dr. Subhash Kashinath Mahajan Vs. State of Gujarat, (1992) 1 GLR 405 and decision of the Apex Court in the case of Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and another, (2018) AIR SC 1498, the appellants have prayed to allow this appeal and enlarged them on bail. 4. Heard Mr.B. T. Rao, learned advocate for the appellants, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 and Mr.Nilesh Jani, learned advocate for respondent No.2. I have perused the papers made available by the prosecution as well as annexed with the memo of appeal. 5. Mr.B. T. Rao, learned advocate for the appellants has submitted the same facts which are narrated in the memo of appeal and has also submitted that the allegations made against the appellants are general in nature and there is no specific allegation which may constitute the offence under the Atrocity Act. He has submitted that at the relevant time, on the date of incident, the complainant is Class II gazetted officer and he has not filed the complaint immediately and waited for seven days and that too, after discussion with higher officers, he has filed the present complaint only with a view to harass the appellants. He has further submitted that there was mob of 400-500 persons in the office and when there is no prima facie case under the Atrocity Act, then the provision of Section 438 of the Criminal Procedure Code will be applicable and the Court has discretion to grant anticipatory bail in such case. For this proposition, he has relied upon the decision of the Apex Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra and another, (2018) AIR SC 1498 wherein the decision of this Court in the case of Pankaj D. Suthar Vs. State of Gujarat, (1992) 1 GLR 405 has been approved. He has urged to allow the present appeal and enlarged the appellants on bail on appropriate conditions. 6. Per contra, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 has vehemently submitted that the delay for filing the complaint has been clearly explained in the FIR itself. She has submitted that the word narrated in the complaint amounts to atrocity upon the complainant. 6. Per contra, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 has vehemently submitted that the delay for filing the complaint has been clearly explained in the FIR itself. She has submitted that the word narrated in the complaint amounts to atrocity upon the complainant. She has submitted that earlier also, Section 18 of the Atrocity Act was applicable and in the present case, the office has been ransacked by the appellants and they were also in mob and there is specific allegation made against them. She has submitted that six witnesses have supported the version of the complaint and this is not a case wherein discretion could be exercised when there is bar under Section 18 of the Atrocity Act. She has also submitted that before the present appeal, the other appeal which has been preferred by different accused, this Court has rejected the prayer of anticipatory bail relying upon Section 18(A) of the Atrocity Act. She has urged to dismiss the present appeal. 7. Mr.Nilesh Jani, learned advocate for respondent No.2 has adopted the arguments made by learned Additional Public Prosecutor and has submitted that there is prima faice case of commission of offence under the Atrocity Act and whatever stand taken by the present appellants needs judicial scrutiny and it can be decided during the trial. He has submitted that the word, which is used by the accused persons, has been narrated in the complaint, is painful word for the complainant. He has, therefore, urged to dismiss the present appeal. 8. In response, Mr.Rao, learned advocate has submitted that there was scarcity of the water in the area and, therefore, the representatives were gone to appraise the authority and that there is no prima facie material to substantiate the charge of the atrocity and the entire complaint has been lodged after due deliberation of the higher authority. He has, therefore, submitted to allow the present appeal. 9. This Court in the case of Pankaj D. Suthar Vs. State of Gujarat (supra) has considered the scope of Section 438 of the Criminal Procedure Code; in the case of offence punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, especially Section 18 therein which specifically provides for exclusion of Section 438 of the Criminal Procedure Code, if no offence is made out under the Atrocity Act. While dealing with both the provisions, this Court has held and observed in paras4 and 5 as under:- 4. Now undoubtedly it is true that the alleged offence under the Atrocities Act is a very serious offence and if indeed the complaint is ultimately found to be truthful and genuine one, there cannot be any two views about the strictest possible view taken in such matter. Not only that but if the complaint is also found to be prima facie dependable one that is to say, free from doubt, then as a warranted under Section 18 of the Atrocities Act, even the anticipatory bail to such accused has got to be refused. In fact, the Parliament in its utmost wisdom has rightly evidenced great concern and anxiety over the atrocities which are going on unabatedly on S.Cs. & S.Ts. by inserting the provisions under Section 18 of the Atrocities Act disability the accused from obtaining the anticipatory bail under Section 438 of the Code. This indeed is a welcome step and in accordance with the axiomatic truth, viz., ‘the disease grown desperately must be treated desperately else not’. The disease of commission of offences by way of atrocities against the members of S.Cs. and S.Ts. are unabatedly going on since last hundreds of years and in the recent past have become alarmingly increasing and has become so rampant, breath taking and has reached such a desperate pass that it indeed needed a very stringent and desperate legislation which could help save the situation by effectively providing the legal protection to such cursed, crushed and downtrodden members of S.Cs. & S.Ts. communities. Under such circumstances, it is equally the paramount duty of every Court to see that it responds to legislative concern and call and ensure effective implementation of the Atrocities Act, by seeing that the provisions enshrined in the said Act are duly complied with. But then, what according to this Court is the most welcome step by way of collective wisdom of the Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreck some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are-Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent? The very same fundamental question arises in the facts and circumstances of this case also, viz., ‘whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?’ The answer to this question is undoubtedly and obviously ‘No’. Under such circumstances, if the Courts are to apply such provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinising and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice. Virtually, it would be tentamount to abdicating and relegating its judicial duty, fanction of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the rules made thereunder are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of ‘judicial consideration-discretion’ and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial function-duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision. 5. Now reverting to the contents of the complaint and attending circumstances high lighted by Mr. 5. Now reverting to the contents of the complaint and attending circumstances high lighted by Mr. Pardiwala, the learned Advocate for the petitioner-accused, the same prima facie clearly demonstrates that at this stage the story revealed by the complainant docs not appear to be free from doubt. If that is so, very applicability of the Atrocities Act is rendered doubtful. If that is the situation, then to refuse the anticipatory bail on mere accusations and assumptions that the petitioner-accused has committed an offence under the Atrocities Act would be absolutely illegal, unjudicious, unjust and ultimately a travesty of justice. No Court can ever embark upon such hazards of refusing anticipatory bail on mere doubtful accusations and assumptions that Atrocities Act is applicable. No Court could and should be permitted to be ‘spoon-fed’ by the complainant whatever he wants to feed and swallow whatever he wants the Court to gulp down to attain and secure his unjust mala fide motivated ends. Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but it does not and it certainly cannot whisk away the right of any Court to have a prima facie judicial scrutiny of the allegations made in the complaint. Nor can it under its hunch permit provisions of law being abused to suit the mala fide motivated ends of some unscrupulous complainant. In this case also if indeed this Court been satisfied with the story revealed by the complainant as truthful and genuine, then anticipatory bail would have been surely rejected right forth as a matter of course, but since the submissions of Mr. Pardiwala have considerable force, this Court has no alternative but to accept the same in the larger interests of justice to see that merely on the count of the firsthand prejudice attempted to be caused by allegations in the complaint, the petitioner-accused is not denied his precious right of the anticipatory bail. 10. The aforesaid view of this Court has been upheld by the Supreme Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra (supra). In the said decision, the Supreme Court has held and observed that - “Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. 10. The aforesaid view of this Court has been upheld by the Supreme Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra (supra). In the said decision, the Supreme Court has held and observed that - “Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. It cannot be read as being applicable to those who are falsely implicated for extraneous reasons and have not committed the offence on prima facie independent scrutiny. Access to justice being a fundamental right, grain has to be separated from the chaff, by an independent mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has 59 to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law. Restriction in Section 18 is only at the stage of consideration of matter for anticipatory bail and no such restriction is available while the matter is to be considered for 61 grant of regular bail. Theoretically it is possible to say that an application under Section 438 of the Code may be rejected by the Court because of express restrictions in Section 18 of the Atrocity Act but the very same court can grant bail under the provisions of Section 437 of the Code, immediately after the arrest. There seems to be no logical rationale behind this situation of putting a fetter on grant of anticipatory bail whereas there is no such prohibition in any way for grant of regular bail. It is, therefore, all the more necessary and important that the express exclusion under Section 18 of the Atrocity Act is limited to genuine cases and inapplicable where no prima facie case is made out. 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. The exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the Atrocity Act is made. 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. The exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the Atrocity 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. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest is reiterated. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention. 11. In view of the aforesaid legal provision and on perusal of the material placed on record, it transpires that the incident is alleged to have taken placed on 27.08.2012 at 11.30 p.m., and the FIR for the same is lodged on 02.09.2012 at 17.15 hours. Thus, it appears that there is delay in lodging the FIR. Of course, there is averments in the FIR that due to some government functions and as he has to discuss with the higher officer, there is delay in filing the complaint. But the facts remain and it reveals from the record that on the date of incident, the TDO himself has called the police at his office, but he has not lodged the complaint for any offence. It also reveals from the statements of the witnesses relied on by the prosecution that the statements of police, who have reached the place of occurrence, are based on hearsay evidence. So far as the statements of eye witnesses are concerned, on perusal of the same, it appears that there is narration that the accused were using filthy language against the TDO. So far as the statements of eye witnesses are concerned, on perusal of the same, it appears that there is narration that the accused were using filthy language against the TDO. There is no iota of evidence of any word or narration by these eye witnesses to the effect that the accused used derogatory language and were abusing the complainant on the basis of his castes. It is pertinent to note that those statements were recorded on the very next day i.e. on 03.09.2012, after filing of the complaint. It prima facie appears that the allegations of commission of offence under the provision of the Atrocity Act is doubtful. The genuineness of the allegation made in the complaint also creates doubt in view of the statements of the eye witnesses. 12. Now, it is well settled that the Court has to decide every case on facts and circumstances of each case and if in a given case, the Court is declined to exercise discretion under Section 438 of the Criminal Procedure Code wherein prima facie material is available to show that there was commission of offence under the Atrocity Act then it does not mean that if in another case, it is found that there is no prima facie material to substantiate the allegation under the Atrocity Act then the Court, has no discretion to allow the anticipatory bail. 13. In the present case, the alleged office is committed prior to the amendment of the Atrocity Act. The Act being substantive and penal in nature, the provision of law prevailing on the date of occurrence of offence would govern the same. Further, considering the material available on record, it clearly appears that there is no prima facie case to substantiate the alleged allegation of the Atrocity Act. Considering these peculiar facts and circumstances of the case, the present appeal deserves to be allowed. 14. In the result, the present appeal is allowed by directing that in the event of appellants herein being arrested pursuant to FIR registered as C.R No.I-42/2012 before Vankaner City Police Station, District: Rajkot Rural, the appellants shall be released on bail on furnishing a personal bond of Rs. 14. In the result, the present appeal is allowed by directing that in the event of appellants herein being arrested pursuant to FIR registered as C.R No.I-42/2012 before Vankaner City Police Station, District: Rajkot Rural, the appellants shall be released on bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) each with one surety of like amount on the following conditions that the appellants shall : (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at concerned Police Station on 08.04.2019 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 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 their addresses to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (f) not leave India without the permission of the Court and if having passports shall deposit the same before the Trial Court within a week; and (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; 15. 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. 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. 16. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail.