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2019 DIGILAW 302 (GUJ)

Banubibi v. State Of Gujarat

2019-04-04

A.P.THAKER

body2019
JUDGMENT : A P THAKER, J. 1. By way of this appeal filed under Section 14A(2) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, the appellant accused has prayed to release her on anticipatory bail in case of her arrest in connection with the FIR registered as C.R.No.I-31 of 2017 with Dediyapada Police Station, District-Narmada for the offences punishable under sections 143, 147, 149, 323, 504, 506 (2) of IPC, Section 135 of the Gujarat Police Act and Section 3(1)(r)(f) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 2. The appellant herein had approached learned Special Judge, Narmada at Rajpipla for being released on anticipatory bail by filing Criminal Misc. Application No.58 of 2019, which came to be rejected by the impugned judgment and order dated 1.3.2019. Being aggrieved by the aforesaid order, present appeal is preferred before this Court. 3. Learned advocate for the appellant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the appellant is available during the course of investigation and will not flee from justice. In view of the above, the appellant may be granted anticipatory bail. 3.1 Learned advocate for the appellant submitted that the appellant is a lady and is bed-ridden sing long and she is mentally retarded. He further submitted that entire story as narrated in the complaint is false and got up with an intention to harass the appellant and respondent no.2 has filed present complaint as a counter-blast to the FIR filed by the appellant side. He further submitted that present appellant had filed a quashing petition before this Court, wherein this Court was pleased to direct that no coercive steps may be taken against the present appellant. Therefore, the trial against the present appellant is pending while it is concluded in respect of other accused and all of them are acquitted from all the charges. 3.2 Learned advocate for the appellant on instructions states that the appellant is ready and willing to 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. He would further submit that upon filing of such application by the Investigating Agency, the right of appellant accused to oppose such application on merits may be kept open. 4. He would further submit that upon filing of such application by the Investigating Agency, the right of appellant accused to oppose such application on merits may be kept open. 4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. 5. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order. 6. Having heard the learned advocate for the parties and perusing the investigating papers and as well as taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, this Court has considered following aspects:- (i) Accused-present appellant is a lady. (ii) Only allegation against the present appellant is that she was present with other accused at the time of commission of offence. (iii) The alleged offence is of 12.6.2017, which is prior to the amendment of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. This being a substantive and penal law, provisions prevailing as on the date of the offence will apply. Without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the appellant. 7. Learned APP appearing for the State has heavily relied upon the amended Section 18(A) of the Atrocity Act, which has been added by the legislature by Amendment Act of 2018. The said Section reads as under:- “18A. (1) For the purposes of this Act,- (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”. 7.1 For inserting this new provision of Section 18(A), the statement of objects and reasons thereof is necessary to be carved out. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”. 7.1 For inserting this new provision of Section 18(A), the statement of objects and reasons thereof is necessary to be carved out. The statement of objects and reasons, which has been appended with the said Bill No.140 of 2018, is as under:- STATEMENT OF OBJECTS AND REASONS The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (said Act) was enacted with a view to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes and to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. The said Act was amended in 2015 with an objective to deliver greater justice to members of the Scheduled Castes and the Scheduled Tribes. 2. In a recent judgment, the Supreme Court has held that a preliminary enquiry shall be conducted by a Deputy Superintendent of Police to find out whether allegations make out a case under the said Act before registering a First Information Report relating to commission of an offence and the approval of an appropriate authority shall be obtained before arrest of any person in connection with such offence. 3. However, the provisions of the Code of Criminal Procedure, 1973 provide that every information relating to commission of an offence, if given, shall be recorded and where the investigating officer has reason to suspect the commission of an offence, he can arrest a person and there is no requirement of conducting a preliminary enquiry before recording of any such information or obtaining of an approval from any authority before arresting any person. Moreover, such preliminary enquiry and approval would only delay the filing of a charge sheet. 4. The principles of criminal jurisprudence and section 41 of the Code of Criminal Procedure, 1973 as interpreted in several judgments, implies that once the investigating officer has reasons to suspect that an offence has been committed, he can arrest an accused. This decision to arrest or not to arrest cannot be taken away from the investigating officer. 5. 4. The principles of criminal jurisprudence and section 41 of the Code of Criminal Procedure, 1973 as interpreted in several judgments, implies that once the investigating officer has reasons to suspect that an offence has been committed, he can arrest an accused. This decision to arrest or not to arrest cannot be taken away from the investigating officer. 5. In view of the above, it is expedient in the public interest that the provisions of the Code of Criminal Procedure, 1973 be made applicable in respect of registration of First Information Report relating to commission of an offence or arrest of any person without any preliminary enquiry or approval of any authority, as the case may be. 6. The Bill seeks to achieve the above objects. 7.2 In view of the statement of objects and reasons for the amendment of the Atrocity Act, it appears that due to the recent judgment of the Supreme Court holding that preliminary inquiry shall be conducted by Deputy Superintendent of Police to find out whether the allegations made out a case under the said Act before registering an FIR relating to the commission of an offence and approval of appropriate authority shall be obtained before arrest of any person in connection with such offence, this amendment is carried out in the Atrocity Act by inserting Section 18A thereof. It also appears from the statement of objects and reasons coupled with the provisions made in sub-Section (2) of Section 18(A), that this provision of sub-section (2) has been inserted only with a view counter to the directions issued by the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another in Criminal Appeal No.416 of 2018 dated 20.3.2018, wherein in conclusion at para 83, the Apex Court has held as under:- “83. Our conclusions are as follows: (i) Proceedings in the present case are clear abuse of process of court and are quashed. (ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. (ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); (iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. (iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. (v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective.” 7.3 Thus, so far as the conclusion of para 83(i) and (ii) is concerned, there is no object and reason given for nullifying those observations. 7.4 It is also pertinent to note that the Union of India has also preferred review petition against the aforesaid judgment, being Review Petition (Criminal) of 2018 (Diary No.12243 of 2018) in Criminal Appeal No.416 of 2018, wherein, review has been sought for the conclusion at para 83(i) to (v). But, during the course of argument, the Supreme Court has considered only the directions at para (iii) to (v) of the original decision. Thus, even on reading of the amended provision of Section 18(A) coupled with the statement of objects and reasons for such amendment, it is apparent that the legislature has only made this amendment regarding nullifying the conclusion of the Apex Court in para 83(iii) to (v). Therefore, in a given case, no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide, then in that case, there is no absolute bar against grant of anticipatory bail in cases under the Atrocity Act. 8. Therefore, in a given case, no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide, then in that case, there is no absolute bar against grant of anticipatory bail in cases under the Atrocity Act. 8. In the result, the present application is allowed and the impugned order dated 1.3.2019 passed in Criminal Misc. Application No.58 of 2019, by Special Judge, Narmada at Rajpipla, is quashed and set aside and it is directed that in the event of appellant herein being arrested pursuant to FIR registered as C.R.No.I-31 of 2017 with Dediyapada Police Station, District-Narmada, the appellant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees ten thousand only) with one surety of like amount on the following conditions: (a) shall cooperate with the investigation and make herself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 12.04.2019 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 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) 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; 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; 9. 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. 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. 11. Accordingly, this appeal is allowed. Direct service is permitted.