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2019 DIGILAW 372 (GUJ)

Bharatbhai Butabhai Bharwad 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) Amendment Act, 2015 (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 - 18/2018 registered with Chandkheda Police Station, District: Ahmedabad City for the offences under Sections 323, 324, 294(b) and 114 of the Indian Penal Code, Section 135(1) of the Gujarat Police Act and Section 3(2), 5(b), 3(1)(r) of the Atrocity Act. 2. It is contended that the alleged FIR has been lodged by Amratbhai Motibhai Vaghela on 14.01.2019 at about 3.30 in the noon hours, when he was present at his house and his son-in-law Tulsibhai and son Harishbhai was flying kites. It is contended that at the relevant time, Bharatbhai Bharwad started abusing the son and son-in-law of the complainant about his caste in filthy language and at that time, he was having stick in his hand and Vinodbhai was having stick and Dhariya in his hands and at that time, during the quarrel Vinodbhai had given blow on right hand thumb of the complainant and Bharatbhai had given stick blow on the head of the complainant. It is further contended that the wife of the complainant and other family members have tried to intervene, however, they were also beaten by the accused persons. 2.1 Upon the said offence, FIR came to be lodged and the appellants herein apprehending of their arrest, they have preferred Criminal Misc. Application No.197 of 2019 before the learned Sessions Judge, Gandhinagar under Section 438 of the Criminal Procedure Code for anticipatory bail, which came to be rejected by the learned 3rd Additional (Ad-hoc) Sessions Judge, Gandhinagar vide order dated 08.02.2019. 2.2 It is further contended by the appellants that they are innocent and have not committed any offences as alleged. It is contended that the appellants and the complainant are residing in the same vicinity since more than 20 years and no such incident was ever occurred. It is contended that there is no basic ingredients of the offence under the Atrocity Act and they have wrongly arraigned as accused. It is further contended that the alleged incident was occurred in hit and spur of the movement and custodial interrogation is not required. It is contended that there is no basic ingredients of the offence under the Atrocity Act and they have wrongly arraigned as accused. It is further contended that the alleged incident was occurred in hit and spur of the movement and custodial interrogation is not required. It is also contended that the present FIR is counter-blast FIR filed by the accused side. It is contended that the appellants are ready and willing to abide by all the conditions which may be imposed, while enlarging them on anticipatory bail. 3. Affidavit-in-reply has been filed by the original complainant – respondent No.2 wherein he has stated that the learned Sessions Judge has rightly rejected the bail application. It is further stated that the accused persons have abusive filthy language amongst the caste and also used dharia and stick and inflicted injury on his head and he was seriously injured and he has taken treatment in the Civil Hospital, Ahmedabad. It is further stated that if the appellants are released on anticipatory bail, there will be serious injustice to the complainant and there are all chances to misuse the liberty and there will be great hardship to investigating agency. It is further stated that considering the seriousness of the injuries as well as the facts narrated in the affidavit, the present appeal may be dismissed. Along with the affidavit-in-reply, the complainant has produced certain documents which includes the objection filed before the trial Court, medical certificate. 4. Heard Mr. Rutvij Oza, learned advocate for the appellants, Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 – State and Mr.Vishal Mehta, learned advocate for respondent No.2 – original complainant. Perused the papers made available on record and annexed with the memo of appeal. 5. Mr.Rutvij Oza, learned advocate for the appellants has submitted that the accused and the complainant are neighbour and the incident has taken place on the occasion of utarayan. He has submitted that there is cross complaint filed by the present accused against the complainant. He has submitted that there is no serious injury and no allegation of atrocity against the appellants is made out and, therefore, he has prayed to allow the present appeal. 6. Per contra, Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 – State has submitted that during the quarrel, five persons were injured and serious injuries were sustained by the complainant and others. 6. Per contra, Ms.Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 – State has submitted that during the quarrel, five persons were injured and serious injuries were sustained by the complainant and others. She has also submitted that the eye witnesses have specifically attributed the active role on the part of Bharatbhai, who has used derogatory language towards the caste of the complainant. She has further submitted that Section 326 of the Indian Penal Code is added on 16.03.2019 and custodial interrogation is required and the weapons are required to be recovered from the accused. She has prayed to dismiss the present appeal. 7. Mr.Vishal Mehta, learned advocate for respondent No.2 – complainant has referred to the contents of the affidavit-in-reply filed by the complainant and submitted that specific allegations are made in the FIR and there is injury certificate showing that the complainant has received serious injury and the accused are absconding since then. It is further submitted that the custodial interrogation is necessary and, therefore, at this stage, the anticipatory bail may not be granted. 8. In response, Mr.Rutvij Oza, learned advocate for the appellants has submitted that the injured are discharged from the hospital and they are unaware about addition of Section 326 of the Indian Penal Code and the accused are availing remedy as per the law and they cannot be say that they are absconding. He has, therefore, urged to enlarge the appellants on anticipatory bail. 9. 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 , Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra and another reported in AIR 2018 SC 1498 and Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in (2008) 12 SCC 531 . 10. Learned advocate for the complainant 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. State of Andhra Pradesh and others reported in (2008) 12 SCC 531 . 10. Learned advocate for the complainant 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.". 10.1 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. 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. 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. 10.2 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 (supra), wherein in conclusion at para 83, the Apex Court has held as under:- 83. Subhash Kashinath Mahajan Vs. The State of Maharashtra (supra), 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. 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. 10.4 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. 10.5 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). 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. 11. On perusal of the papers made available by the prosecution along with the statements of various witnesses, it emerges that there was some fight between two groups and at the time of incident, out of three accused, Bharatbhai Butabhai Bharwad has used derogatory language towards the caste of the complainant, whereas, the other two accused have not uttered any words in that regard. Therefore, so far as Bharatbhai Butabhai Bharwad is concerned, there is prima facie material available on record to substantiate the charge under the provision of the Atrocity Act, and appeal qua Bharatbhai Butabhai Bharwad – appellant No.1 is required to be dismissed. 12. However, so far as appellant No.2 – Vinod Butabhai Bharwad and appellant No.3 – Rakesh Bhagwati Prasad Maurya are concerned, it appears that they have not used any derogatory language abusing the caste of the complainant. Therefore, there is no material against them to substantiate the charge under the provision of the Atrocity Act and merely because they were present at the time of offences, they cannot be roped under Section 114 of the Indian Penal Code and under the provision of the Atrocity Act. 13. Considering the factual aspects of the case, without discussing the evidence in detail, it is found that appellant No.2 – Vinod Butabhai Bharwad and appellant No.3 – Rakesh Bhagwati Prasad Maurya are required to be enlarged on anticipatory bail on suitable conditions. 14. In the result, the present appeal is partly allowed. 14.1 Resultantly, the appeal qua appellant No.1 - Bharatbhai Butabhai Bharwad is dismissed. Notice is discharged. Interim relief granted qua appellant No.1 - Bharatbhai Butabhai Bharwad stands vacated forthwith. 14.2 The impugned order dated 08.02.2019 passed by the learned 3rd Additional (Ad-hoc) Sessions Judge, Gandhinagar in Criminal Misc. 14. In the result, the present appeal is partly allowed. 14.1 Resultantly, the appeal qua appellant No.1 - Bharatbhai Butabhai Bharwad is dismissed. Notice is discharged. Interim relief granted qua appellant No.1 - Bharatbhai Butabhai Bharwad stands vacated forthwith. 14.2 The impugned order dated 08.02.2019 passed by the learned 3rd Additional (Ad-hoc) Sessions Judge, Gandhinagar in Criminal Misc. Application No.197 of 2019 is hereby quashed and set aside qua appellant No.2 – Vinod Butabhai Bharwad and appellant No.3 – Rakesh Bhagwati Prasad Maurya. It is ordered that in the event of appellants No.2 and 3 herein being arrested pursuant to FIR registered as C.R.No. I - 18/2018 registered with Chandkheda Police Station, District: Ahmedabad City, the appellant No.2 – Vinod Butabhai Bharwad and appellant No.3 – Rakesh Bhagwati Prasad Maurya 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 appellants No.2 and 3 shall : (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at concerned Police Station on 16.04.2019 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 address 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 No.2 and 3. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellants No.2 and 3. The appellants No.2 and 3 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 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. 17. The appeal stands disposed of, accordingly. Direct service is permitted.