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2019 DIGILAW 381 (GUJ)

Dinesh Muljibhai Bagada v. State of Gujarat

2019-04-11

A.P.THAKER

body2019
ORDER : 1. At the time of dictation, learned advocate Mr. Ashish M. Dagli for the appellant No.1 submits that he does not press the appeal qua appellant No.1- Dinesh Muljibhai Bagada. Hence, the appeal stands disposed of qua appellant No.1. Notice is discharged. Now, this appeal is restricted only qua appellant No.2-Kiritbhai @ Mama Vallabhbhai Kalariaya. 2. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as “the Atrocity Act” for short) at the instance of the appellants-original accused for anticipatory bail in connection with the FIR being C.R. No.I-02 of 2019 registered with Jamkandorna Police Station, Rajkot (Rural) for the offences punishable under Sections 306 and 114 of the Indian Penal Code, Sections 40 and 42(d) of the Money Lending Act and Section 3(2)(5) of the Atrocity Act. 3. It is the case of the appellants that complainant Virabhai Keshubhai Parmar alleged that on 31.12.2019, at about 8.30, the complainant was at his work place, his father was was not present and at about 2 O'clock, in the afternoon, the complainant got call that his father was not well and was admitted in Sukhwala doctor at Gondal and on such information being received, he went to the said place and found that his father has passed away. It is alleged that thereafter, the deceased was taken to the Government hospital at Jamkandorna for postmortem. It is alleged that one Manish told the complainant that at about 2 O'clock, his father was sitting near the tree and he was unconscious and from the dickey of the motorcycle, a chit was found wherein his father had noted that because of financial crisis, he has taken this step and one Dinesh and Kirit have taken the benefit of his father and therefore, he had taken this step. 3.1. It is stated in the FIR that his father was earlier residing in a rented premise of one Dineshbhai and due to that they came in contact and afterwards, the father of the complainant and Dineshbhai had worked together for construction work and they had worked together in partnership. It is also contended that both were doing the business together and bank account was also opened in SBI Bank and RDC Bank at Rajkot. It is also contended that both were doing the business together and bank account was also opened in SBI Bank and RDC Bank at Rajkot. It is also contended that the father of the complainant was also running a society in the name of Balaji Madh wherein his father was President and the complainant was Secretary. 4. It is contended by the appellants that they have preferred anticipatory bail application before the Sessions Court, Dhoraji, being Criminal Misc. Application No.27 of 2019, which has been rejected by learned Sessions Judge, Dhoraji on 8.2.2019. 5. It is contended that the appellants are falsely implicated and they have not committed any offence as alleged in the complaint. It is also contended that appellant Dineshbhai who is proprietor of D.M. Construction at Ambedkarnagar, Rajkot, has participated in so many tender proceedings and agreements were done for construction work with the Deputy Engineer, R&B Department and the deceased was working on some occasion wherein the D.M. Construction received an order as sub-employee. It is also contended that Kiritbhai is not in any way related to any affairs of the deceased. It is also contended that there was no transaction between the petitioner No.2 and the deceased. They have also contended that they are ready and willing to give full cooperation to the investigating agency and in fact custodial interrogation of the appellants may not be warranted and on all these grounds they have prayed to enlarge them on anticipatory bail. 6. The complainant- respondent No.2 has filed affidavit-in-reply, wherein he has opposed the appeal on the ground that due to harassment of the appellants with regard to finance, his father has committed suicide. It is also contended that though his father had paid all the amounts borrowed from the appellants with interest, they demanded the amount with some oblique motive. It is also contended that the appellants have taken much more interest and benefit from his father and they are responsible to put his life at stake and due to instigation on the part of the appellants, his father as a last resort committed suicide. He has also contended that before two days of the incident, the appellant No.1 with some headstrong persons came to his house and called his father outside the house and they they were threatening his father. He has also contended that before two days of the incident, the appellant No.1 with some headstrong persons came to his house and called his father outside the house and they they were threatening his father. It is also alleged that the appellants were demanding more money and therefore, his father remained in stress and due to which, he has consumed poison. He has ultimately prayed to reject the bail application. 7. Heard learned advocate Mr. Ashish M. Dagli for the appellants, learned Additional Public Prosecutor Ms. Moxa Thakkar for the respondent No.1- State and learned advocate Mr. Manoj Danak for the respondent No.2- original complainant. Perused the material placed with the present appeal. 8. Learned advocate Mr. Ashish M. Dagli for the appellants has submitted the same facts narrated in the memo of appeal and has contended that the complaint has been lodged after 10 days and the deceased was the contractor of supplying labourers. It is also contended that the appellant No.1 and the deceased are of the same community and therefore, the offence under the Atrocity Act cannot be made applicable to the appellant No.1. While referring to the documents placed with this appeal, he has submitted that there was no such financial transaction between the deceased and the present appellants and there is no criminal antecedent of the appellants and there is no need of any custodial interrogation. He has also contended that there is no abetment of suicide by the present appellants. He has also contended that the appellant No.2 is not known to the deceased and his name has been given only due to he being the friend of the appellant No.1. He has prayed to allow the appeal. 9. Per contra, learned Additional Public Prosecutor Ms. Moxa Thakkar for the State has vehemently opposed the appeal and has stated that the deceased has committed suicide due to the harassment given by the present appellants. She has also stated that the suicide note was sent to FSL for confirmation of handwriting of the deceased and it is found that the handwriting of the suicide note is of the deceased. She has also stated that custodial interrogation of the appellants is required as there are certain documents to be recovered from them. She has prayed to reject the appeal. 10. Learned advocate Mr. She has also stated that custodial interrogation of the appellants is required as there are certain documents to be recovered from them. She has prayed to reject the appeal. 10. Learned advocate Mr. Manoj Danak for the respondent No.2 has also stated that the Atrocity Act is applicable in case qua the other accused. He has also contended that on whats-up one document has been sent by the appellants to the complainant. He has also contended that there were business transactions and threat was given on whats-up to the complainant. He has also contended that the present appellants are money lenders and they have recovered more interest from the deceased and due to that, he has committed suicide. He has also stated that custodial interrogation of the appellants is required and therefore, the present appeal should be dismissed. 11. In re-submission, learned advocate Mr. Dagli for the appellants has submitted that the custodial interrogation or remand cannot be granted for recovery or discovery of any document. But, in this case, there is no need of any custodial interrogation. According to him, even if there is any need of custodial interrogation, then necessary conditions may be imposed while enlarging the appellants on bail. 12. The 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 , in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in (2008)12 SCC 531 and in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another reported in AIR 2018 SC 1498 . 12.1. 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.". 12.2. 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. 12.3. 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 18(A) 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 to counter the directions issued by the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another (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. (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. 12.4. 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. 12.5. 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, if 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. 13. Therefore, if 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. 13. Considering the material placed on record, it transpires that there is prima facie material appears against the appellant No.2 for the alleged offence of the Atrocity Act. Considering the overall facts and circumstances of the case, without discussing the material on record, it prima facie appears that the discretionary power under Section 438 of the Code of Criminal Procedure is required to be exercised in his favour. 14. Therefore, the appeal qua appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya is allowed. The impugned order dated 8.2.2019 passed in Criminal Misc. Application No.27 of 2019 by learned Additional Sessions Judge, Rajkot at Dhoraji is hereby quashed and set aside qua appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya. It is directed that in the event of appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya being arrested pursuant to FIR registered being C.R. No.I-02 of 2019 registered with Jamkandorna Police Station, Rajkot (Rural), he shall be released on bail on furnishing a personal bond of Rs. It is directed that in the event of appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya being arrested pursuant to FIR registered being C.R. No.I-02 of 2019 registered with Jamkandorna Police Station, Rajkot (Rural), he shall be released on bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) 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 18.04.2019 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 his 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 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; 15. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya. Appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya 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 No.2, 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 appellant No.2- Kiritbhai @ Mama Vallabhbhai Kalariaya on bail. Direct service is permitted.