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2019 DIGILAW 371 (GUJ)

Dhulabhai Balabhai Khant v. State of Gujarat

2019-04-10

A.P.THAKER

body2019
ORDER : 1. 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 regular bail in connection with the FIR being C.R.No. I - 02/2019 registered with Shamlaji Police Station, District: Arvalli for the offences under Sections 302, 143, 144, 147, 148, 149 of the Indian Penal Code and Section 3(1)(e), and 3(2)(v) of the Atrocity Act. 2. The case of the prosecution in nutshell is that the impugned FIR has been lodged by respondent No.2 against five persons including the present appellants dated 05.01.2019 inter alia stating that on 24.12.2018 his father Punaji Kavaji Bodat was missing and on 25.12.2018, he was informed that his father was in the police station. It is alleged that when he was taking his father back from the police station, during journey, his father told him that he was beaten by the present accused on the assumption that the deceased was thief. It is further alleged that the respondent No.2 and his family has completed the rituals by buried the dead body and, thereafter, he filed the FIR on 05.01.2019 and body was sent for postmortem and, thereafter, the appellants were arrested on 06.01.2019. It is further alleged that the investigation is completed and the charge-sheet has been filed. 2.1 The appellants have submitted that they have preferred regular bail application being Criminal Misc. Application No.316 of 2019 before the District and Sessions Court, Modasa, District: Arvalli, which came to be rejected by learned 2nd Additional Sessions Judge, Modasa, District: Arvalli vide order dated 15.03.2019. 2.2 According to the appellants, they are innocent and they have falsely been implicated in the alleged incident. It is contended that their names are not mentioned in the FIR and there was no intention to kill the deceased. It is also contended that the deceased was found in the police custody and he was happily taken home by respondent No.2 and it might happen that the police have beaten the deceased and subsequently to avoid their liability, the FIR has been lodged against the applicants. It is also contended that the deceased was found in the police custody and he was happily taken home by respondent No.2 and it might happen that the police have beaten the deceased and subsequently to avoid their liability, the FIR has been lodged against the applicants. It is further contended by the appellants that they are in judicial custody since 06.01.2019 and they are not likely to tamper with the evidence and/or to jump the bail and, therefore, they have requested to allow the present appeal and to enlarge them on regular bail. 3. Heard Mr.Hiren Modi, learned advocate for the appellants, Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 and Ms.Kiren Pandey, learned advocate for respondent No.2 at length. Perused the material placed along with the appeal as well as police papers. 4. Mr.Hiren Modi, learned advocate for the appellants has submitted the same facts which are narrated in the appeal memo and has submitted that the entire evidence is of hearsay in nature and concocted story has been created. He has also submitted that from the police papers, it appears that the role attributed to the present appellants is only of giving kick and fist blow and they have not used any weapon in the commission of offence. He has, therefore, prayed to allow the present appeal. 5. Per contra, Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 has vehemently opposed the grant of bail and has relied on the statement of Ushaben Dineshbhai Khant and has submitted that in view of the postmortem note, it is found that there were multiple injuries on the body of the deceased and the accused have changed the pant of the deceased and they have beaten the deceased mercilessly. She has further submitted that the present appellants have taken active part in the alleged incident and, therefore, the present appeal may be dismissed. 6. Ms.Kiren Pandey, learned advocate for respondent No.2 has adopted the arguments advanced by the learned Additional Public Prosecutor and has submitted that there is medical certificate regarding the injury caused to the deceased and the present accused have mercilessly beaten the deceased and, their names appeared in the FIR and, therefore, the present appeal may be dismissed. 7. 6. Ms.Kiren Pandey, learned advocate for respondent No.2 has adopted the arguments advanced by the learned Additional Public Prosecutor and has submitted that there is medical certificate regarding the injury caused to the deceased and the present accused have mercilessly beaten the deceased and, their names appeared in the FIR and, therefore, the present appeal may be dismissed. 7. In response, Mr.Hiren Modi, learned advocate for the appellants has submitted that though, the complainant was knowing fact that his father was beaten by the village people on the day of the incident, he has not filed any complaint till 05.01.2019 and there are delay of twelve days in lodging the complaint, which is not explained. 8. This Court has taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40 . 9. Considering the well settled principles of law coupled with the fact of the present case, it is an admitted fact that the charge-sheet has been filed after investigation. It also reveals from the police papers that the role attributed to the present appellants is of giving kick and fist blow to the deceased and there is no allegation that the present accused have used the weapon in the alleged offence. It also reveals from the police papers that on the day of the incident, the deceased was brought to the police station as one Bharatbhai called the police and there was mob of villagers and they have beaten the deceased on assumption that he was thief. 10. Now considering the fact that the charge-sheet has been filed and considering the role of the present appellants and without discussing the evidence in detail, prima facie this Court is of the opinion that this is a fit case to exercise the discretion under Section 439 of the Criminal Procedure Code and enlarge the appellants on regular bail. 11. Hence, the present appeal is allowed. The impugned order dated 15.03.2019 passed by the learned 2nd Additional Sessions Judge, Modasa, District: Arvalli in Criminal Misc. Application No.316 of 2019 is hereby quashed and set aside. 11. Hence, the present appeal is allowed. The impugned order dated 15.03.2019 passed by the learned 2nd Additional Sessions Judge, Modasa, District: Arvalli in Criminal Misc. Application No.316 of 2019 is hereby quashed and set aside. The appellants are ordered to be released on regular bail in connection with I - C.R.No. I - 02/2019 registered with Shamlaji Police Station, District: Arvalli on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand Only) each with surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c) surrender passports, if any, to the lower Court within a week; (d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; (e) mark presence before the concerned Police Station on alternate Monday of every English calendar month between 11.00 a.m. and 2.00 p.m., for a period of six months or till the conclusion of the trial, whichever is earlier; (f) furnish the present address of their residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; 12. The authorities will release the appellants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 13. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 14. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the appellants on bail. 15. The appeal is disposed in the aforesaid terms. Direct Service is permitted.