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2019 DIGILAW 413 (GUJ)

Ashok Kishorilal Damani v. State of Gujarat

2019-04-15

A.P.THAKER

body2019
ORDER : 1. This is an appeal under Section 14(A) 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 appellant – original accused for the anticipatory bail in connection with the FIR being C.R.No. I - 02/2019 registered with Anandnagar Police Station, District: Ahmedabad for the offences under Section 304 of the Indian Penal Code; Sections 75 and 79 of the Juvenile Justice Act, 2015; Sections 3 and 14 of the Child Labour (Prohibition and Regulation) Act and Section 3(1)(h), 3(2)(v) of the Atrocity Act. 2. The case of the prosecution is that the complainant has alleged that on 03.01.2019 around 9.30 a.m., nephew of the complainant named Mehul Meena who was working in Hotel Platinum INN situated at Anandnagar, Ahmedabad got stuck in the goods lift of the said hotel which resulted in his death. On that basis, the FIR has been alleged. 3. It is submitted by the appellant that he has preferred anticipatory bail under Section 438 of the Criminal Procedure Code before the Sessions Court at Ahmedabad being Criminal Misc. Application No.779 of 2019, which came to be rejected vide order dated 14.02.2019 by the learned 12th Additional Sessions Judge, Ahmedabad (Rural) at Ahmedabad. Against the said order, he has preferred the present appeal for enlarging him on anticipation bail on the contention that he is innocent and is falsely implicated in the offence and he is permanent resident of Bombay and he is the owner of the platinum hotel and the entire management has been given to the management officer/s and he was not involved in the said act. He has contended that he has earlier filed anticipatory bail before the Sessions Judge, Ahmedabad being Criminal Misc. Application No.352 of 2019, which was, at the relevant time, rejected and, therefore, he has preferred an application for anticipatory bail before this Court being Criminal Misc. Application No.2243 of 2019 wherein this Court on 13.02.2019 passed an order of ‘not to arrest’ him, but thereafter, the offence under the Atrocity Act was added by the trial Court on the report of the Investigating Officer dated 20.02.2019, the said application came to be withdrawn with a view to file appropriate application before the appropriate Court. Application No.2243 of 2019 wherein this Court on 13.02.2019 passed an order of ‘not to arrest’ him, but thereafter, the offence under the Atrocity Act was added by the trial Court on the report of the Investigating Officer dated 20.02.2019, the said application came to be withdrawn with a view to file appropriate application before the appropriate Court. According to him, he has preferred fresh application before the trial Court and now, the trial Court has rejected the same and, therefore, he has preferred this appeal. He has requested to enlarge him on bail considering the fact that no prima facie offence under the Atrocity Act is made out and the offence is not serious in nature. 4. The original complainant – Dhuleshwar Ganguji Meena has filed affidavit consenting to allow the present appeal as there is amicable settlement between the parties. 5. Heard Mr.Alak Pandya, learned advocate for the appellant, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 and Ms.Asha Tiwari, learned advocate for respondent No.2. Perused the papers made available on record. 6. Mr. Alak Pandya, learned advocate for the appellant has submitted the same facts which are narrated in the appeal memo and has prayed to allow the present appeal and enlarge the appellant on bail on suitable conditions. 7. Per contra, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 – State has vehemently opposed to the grant of anticipatory bail to the appellant and she has submitted to dismiss the appeal. 8. Ms. Asha Tiwari, learned advocate for respondent No.2 has supported the appellant and submitted that in view of the affidavit filed by the original complainant, the appeal may be allowed. 9. Now, it is well settled that the powers under Section 438 of the Criminal Procedure Code is available to the High Court, even after the amendment of Section 18A of the Atrocity Act, where there is no prima facie material to show that the offence under the Atrocity Act has been committed by the accused. 10. Considering the settled principles of law and on perusal of the material, it appears that there is no prima facie material to show that the ingredients of the offence under the Atrocity Act is made out. Under these circumstances, the powers under Section 438 of the Criminal Procedure Code could be exercised. 11. 10. Considering the settled principles of law and on perusal of the material, it appears that there is no prima facie material to show that the ingredients of the offence under the Atrocity Act is made out. Under these circumstances, the powers under Section 438 of the Criminal Procedure Code could be exercised. 11. Considering the facts of the case and without going into merits and having regard to the affidavit filed by the original complainant, this Court is of the opinion that the powers under Section 438 of the Criminal Procedure Code could be exercised in this case. 12. This order may not be treated as precedent as it is passed in the peculiar facts and circumstances of this case. 13. 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 . 14. 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.". 14.1 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.". 14.1 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. 14.2 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. 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. 14.4 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. 14.5 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. 15. 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. 15. In the result, the present appeal is partly allowed. The impugned order dated 14.03.2019 passed by the learned 12th Additional Sessions Judge, Ahmedabad (Rural) at Ahmedabad in Criminal Misc. Application No.779 of 2019 is hereby quashed and set aside. It is ordered that in the event of appellants herein being arrested pursuant to FIR registered as C.R.No. I - 02/2019 registered with Anandnagar Police Station, District: Ahmedabad, the appellant 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 appellant shall : (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at concerned Police Station on 25.04.2019 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 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; 16. 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. 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 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. 17. 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. 18. The appeal stands disposed of, accordingly. Direct service is permitted.