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2019 DIGILAW 366 (GUJ)

Abhi Dineshbhai Patel v. State of Gujarat

2019-04-10

A.P.THAKER

body2019
ORDER : 1. By way of this appeal filed under Section 14A(2) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) [Amendment] Act, 2018 read with Section 438 of the Code of Criminal Procedure,1973, the appellant-original accused no.4 has prayed to release him on anticipatory bail, in the event of his arrest, in connection with the FIR registered as C.R.No.I131 of 2018 with Vapi Town Police Station, DistrictValsad for the offences punishable under sections 143, 147, 148, 149, 307, 324, 427, 504 and 506(2) of the Indian Penal Code, 1860 (“IPC” for short) and Section 3(2)(v) and 3(2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) [Amendment] Act, 2018 (“Atrocities Act” for short). 2. The appellants herein had approached learned 2nd (adhoc) Additional Sessions Judge, Valsad, for being released on anticipatory bail by filing Criminal Misc. Application No.3646 of 2018, which came to be rejected by the impugned judgment and order dated 13.12.2018. Being aggrieved by the aforesaid order, present appeal is preferred before this Court. 3. The brief facts leading to filing of present application are as under: 3.1 The complainant lodged a complaint, inter alia, alleging that on the day of alleged incident, while he was sleeping in his house, at around 1.30 a.m., he heard shouts/voices of some persons and hence, he came out of his house. He saw that 2 cars were parked near the road and around 10 persons were standing carrying sticks, baseball and hockey sticks in their hands and they were shouting. It is further alleged that thereafter, said persons were damaging the Scorpio car parked in the compound of one Chetanbhai Mohanbhai Kamli Patel by stones. Out of the said persons, apart from accused no.1 to 3, there were two persons i.e. present appellant and one Umesh Dori, whereas others were unknown persons. Thereafter, he has asked the accused no.1 as to what happened to which the said accused no.1 told him as to why they wanted to beat the son of Subhash Tiwari. He further alleges in the complaint that thereafter, all the accused started abusing him, administered threats and beaten him, on account of which he sustained injuries and as such some persons gathered on the spot, he was rescued from further beating. He further alleges in the complaint that thereafter, all the accused started abusing him, administered threats and beaten him, on account of which he sustained injuries and as such some persons gathered on the spot, he was rescued from further beating. Meanwhile, police personnel came to the place of incident, accused nos.1 to 3 were caught by the public, whereas other persons fled from the spot. Thereafter, he was taken to a private hospital, wherein after availing primary medical treatment, he went to the police station and lodged the FIR against 5 named and 5 unknown persons. 4. Mr.E.E.Saiyed, learned advocate appearing with Mr.Nasir Saiyed, learned advocate for the appellant has submitted that the appellant is young boy and he is not involved in the incident. He has not used any abusive language against the caste of the complainant and there is no prima facie case made out against the appellant herein for commission of any offence under the Atrocities Act. The entire case is false one and he has been falsely implicated. 4.1 Learned advocate for the appellant has contended the same facts which are narrated in the appeal memo and contended that there is no prima facie case of commission of offence under the Atrocities Act and whatever role was played in the incident was played by other co accused and present appellant accused has not played any active role in the incident. It is also contended that the complainant got primary treatment at the relevant point of time, and therefore, no case under Sections 307 and 342 of the IPC would be made out. He has also contended that there is no criminal antecedent of the appellant. 4.2 Learned advocate for the appellant has submitted that so far the role attributed to the present appellant is concerned, there is absolutely no whisper whatsoever with regard to any of the alleged offence. Thus, it is crystal clear that there is in fact no role attributed to the present appellant in the entire case papers and hence, case of the appellant may kindly be considered for anticipatory bail as the appellant's alleged role is absolutely nothing. 4.3 Learned advocate for the appellant has submitted that other coaccused have been granted bail, and therefore, on the ground of parity, he may be released on anticipatory bail. 4.3 Learned advocate for the appellant has submitted that other coaccused have been granted bail, and therefore, on the ground of parity, he may be released on anticipatory bail. 4.4 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 would be available during the course of investigation and will not flee from justice. In view of the above, the appellant may be granted anticipatory bail. Learned advocate for the appellant states that the appellants is ready and willing to abide by all the conditions which may be imposed by this Court while enlarging him on bail. 4.5 In support of his submissions, learned advocate for the appellant has relied upon the decision of the Apex Court in the case of Champa Lal Dhakar vs. Naval Singh Rajput & Ors, passed in Criminal Appeal No.1931 of 2009 dated 04.01.2019 and decision of this Court in the case of Solanki Ravibhai Dipubhai Vs. State of Gujarat, reported in GLR19921631. 5. Per contra, Ms.Monali Bhatt, learned APP for the respondent-State has vehemently opposed the grant of anticipatory bail by submitting that the name of the present appellant original accused no.4 is there in the FIR and the statement of his mother viz. Tejalben Wd/o. Dineshbhai Chimanbhai Patel contains the fact that the vehicle, which was parked at the relevant time, was of her ownership (mother of the present appellant). This car was brought by the accused no.1 from the house of the appellant accused. Learned APP has also relied upon the statements of eye witnesses, who have alleged that as to what happened at the time of incident. She has also relied upon the statement of one Shahnawaz Ahmed Shaikh. He is the witness of other incident which has occurred prior to the date of present incident. On these grounds, she has prayed to reject the anticipatory bail application of the appellant herein. 6. Though notice was duly served to the respondent no.2original complainant, he did not chose to remain present before the Court either in person or through an advocate. 7. On these grounds, she has prayed to reject the anticipatory bail application of the appellant herein. 6. Though notice was duly served to the respondent no.2original complainant, he did not chose to remain present before the Court either in person or through an advocate. 7. Against the submissions made by the learned APP for the respondent-State, Mr.Saiyed, learned advocate for the appellant has submitted that no FIR has been lodged against the present appellant for the so called earlier incident and the present appellant has not played any active role in the present incident and only his name is mentioned in the FIR. 8. Heard Mr.Saiyed, learned advocate for the appellant and Ms.Monali Bhatt, learned APP for the respondent-State. Perused the materials placed on record and police papers made available. 9. This Court has taken into consideration the law laid down by the Apex Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharastra, reported in AIR 2018 S.C. 1498 . 9.1 During the course of submissions, reliance is placed 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.". 9.2 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.". 9.2 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. 9.3 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 subsection (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. State of Maharastra, reported in AIR 2018 S.C. 1498 , 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 nonpublic 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. “ 9.4 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. 9.5 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. 10. 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. 10. On perusal of the material available on record, it reveals that there is no role attributed to the present appellant regarding use of abusive language against the caste of the complainant. It appears that there was a mob of 10 persons and the present appellant was present in that mob. The main role is attributed qua original accused nos.1 to 3 only. It also reveals that so far earlier incident is concerned, there is no FIR lodged against the present appellant. 11. Considering the totality of the facts and circumstances of the case and without entering into the merits of the case, this Court finds that this is a fit case, wherein discretion under Section 438 of the Code is required to be exercised, as there is no prima facie case against the present appellant-accused. 12. In the result, the present application is allowed and the impugned order dated 13.12.2018 passed in Criminal Misc. Application No.3646 of 2018, by the learned 2nd (adhoc) Additional Sessions Judge, Valsad 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.I131 of 2018 with Vapi Police Station, Dist:Valsad, the appellant shall be released on bail on furnishing a personal bond of Rs. Application No.3646 of 2018, by the learned 2nd (adhoc) Additional Sessions Judge, Valsad 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.I131 of 2018 with Vapi Police Station, Dist:Valsad, 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 16.04.2019 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 their addresses 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; 13. 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. 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. 14. 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. 15. Accordingly, this appeal is allowed. Direct service is permitted.