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2019 DIGILAW 382 (GUJ)

Charansingh Omprakash Yadav v. State of Gujarat

2019-04-11

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 be referred to as “the Atrocity Act” for short) at the instance of the appellant-original accused for anticipatory bail in connection with the FIR being C.R. No.I-07 of 2019 registered with B-Division Police Station, Gandhidham, Kutch (East) for the offences punishable under Sections 354 and 504 of the Indian Penal Code read with Sections 3(2)(5)(a), 3(1)(R)(S), 3(1)(w)(ii) of the Atrocity Act. 2. It is contended that apprehending his arrest, the appellant preferred Criminal Misc. Application No. 40 of 2019 before the Special Judge and Additional Sessions Judge, Gandhidham, Kutch, which was dismissed vide order dated 4.2.2019. 3. The case of the prosecution, in brief, is that one FIR came to be filed by the respondent No.2 inter alia alleging that the complainant has been working as MTS Lady Security Guard in Special Economic Zone, Kandla and the appellant is working as Security Officer on contract basis. It is alleged that when the complainant was present on the check-post, at that time, the present accused had made indecent demand and she had refused for the same and therefore, the appellant is alleged to have been trying to harass her on one or the other pretexts. It is also contended that some bad words were also spoken by him. It is alleged that initially, the accused sent her on duty at Lal Gate, where there was no provision of washroom facility and at that point of time, for getting fresh, she had gone and the accused had made indecent demand and when she did not accept, the accused was harassing her and had issued memo to her. It is also contended that she was transferred to the main Gate of DC office where she was having duty from 2.00 p.m. to 10.00 p.m., whereas after 6.00 p.m., when all staff used to go away, then due to fear, she used to keep her husband present at the place. It is also contended that the accused was also used to use bureaucratic words against her case and also giving threat to terminate her from service and he used to give threat to get her transferred to some other place. It is also alleged that she had discussed all these facts to her husband and ultimately has filed the complaint. It is also contended that the accused was also used to use bureaucratic words against her case and also giving threat to terminate her from service and he used to give threat to get her transferred to some other place. It is also alleged that she had discussed all these facts to her husband and ultimately has filed the complaint. 4. It is contended by the appellant that when he joined the service with KASEZ Kandla in the year 2015, there were more than 50 security guards, out of which 44 male guards were there and 6 female guards were there and thereafter, 2 have retired and 1 had passed away and 2 have left the job. It is also contended that the complainant was working as Safai Karamchari in the office of Development Commissioner and later on, she was absorbed as Multi Tasking Services (MTS). It is also contended that the complainant has filed one complaint on 14.9.2017 against the present appellant and one security guard Ashok Sarvaiya @ Hasmukh Sarvaiya, for which Sexual Harassment Committee was constituted, wherein statements of 9 persons were recorded, which included the complainant and the present appellant. It is also contended that the Committee has ruled out the allegation of sexual harassment and has observed that there are some administrative harassment and therefore, he was censured for it. It is stated that the complainant is being misguided by someone and perhaps that is the reason that she has filed the complaint. 4.1. It is also contended that the appellant has preferred Special Criminal Application No.319 of 2019 before this Court for quashing the FIR, which is pending and in the meanwhile, he has preferred the anticipatory bail application before the Trial Court, which has been rejected. 4.2. The appellant has contended that there is no case made out under the provisions of the Atrocity Act and therefore, anticipatory bail could be granted. It is also contended that this is not a case of sexual harassment or alleged atrocity to the complainant. He has contended that the present appellant has issued memo on 5.9.2017 and the appeal was filed before the department on 14.9.2017, whereas the FIR was lodged on 7.1.2019. He has also contended that he is a retired Army Personnel, where caste, religion and such kind of feeling is not at all there. He has contended that the present appellant has issued memo on 5.9.2017 and the appeal was filed before the department on 14.9.2017, whereas the FIR was lodged on 7.1.2019. He has also contended that he is a retired Army Personnel, where caste, religion and such kind of feeling is not at all there. While referring to the judgment of the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another reported in AIR 2018 SC 1498 , he has prayed to allow the present appeal and enlarge him on anticipatory bail. 5. Heard learned advocate Mr. Ramnandan Singh for the appellant and learned Additional Public Prosecutor Ms. Moxa Thakkar for the respondent No.1- State. Nobody has appeared for the respondent No.2. 6. Learned advocate Mr. Ramnandan Singh has stated the same facts which are stated in the memo of the appeal and has prayed for enlarging the appellant on anticipatory bail. 7. Per contra, learned Additional Public Prosecutor Ms. Moxa Thakkar for the State has vehemently opposed grant of anticipatory bail to the appellant and has stated that considering the Committee's report, it has been observed that there was some malafide intention on the part of the appellant and from the statements recorded, there is prima facie material found against the present appellant and therefore, the appeal should be rejected. 8. 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 (supra). 9. Amended Section 18(A) of the Atrocity Act, which has been added by the legislature by Amendment Act of 2018, 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.". 9.1. 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. 9.2. 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 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. 9.3. 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. 9.4. 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, 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. 10. 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. 10. Now, on perusal of the papers, it appears that the present complaint has been filed on 7.1.2019 for the alleged offences during the period from 7.6.2017 to 7.1.2019. It also appears from the record that the alleged offence was of June 2017 when there was departmental inquiry held against the present appellant by the Committee and from the report, it appears that the offence of sexual harassment was not found to have been committed and only administrative lapse was found against the present appellant. It also appears that due to such report of the committee, the complainant has filed this belated complaint. It also appears that prima facie, there is no material to show that the offence under the Atrocity Act is committed. In absence of prima facie material as to occurrence of the offence under the Atrocity Act, the provisions of Section 438 of the Code of Criminal Procedure will be applicable. 11. Considering the material placed on record, without entering into the minute details, it appears that the case deserves to be considered for anticipatory bail under Section 438 of the Code of Criminal Procedure. 12. In the result, the present appeal is allowed and the order dated 4.2.2019 passed in Criminal Misc. Application No.40 of 2019 by the Special Judge and Additional Sessions Judge, Gandhidham, Kutch is quashed and set aside and it is directed that in the event of appellants herein being arrested pursuant to FIR registered as C.R. No.I-07 of 2019 registered with B-Division Police Station, Gandhidham, Kutch (East), the appellant 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 the appellant 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 their addresses 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; 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. 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. The appeal stands disposed of, accordingly. Direct service is permitted.