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2019 DIGILAW 478 (GUJ)

Jivabhai Jethabhai Vankar v. State of Gujarat

2019-04-29

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 anticipatory bail in connection with the FIR being C.R.No. I - 2/2019 registered with Bayad Police Station, District: Arvalli for the offences under Sections 143, 147, 148, 149, 504, 506(2) of the Indian Penal Code, under Section 135 of the Gujarat Police Act and Section 3(1)(g) and 3(2)(va) of the Atrocity Act. 2. The brief facts of the prosecution are that the impugned FIR has been lodged by one Rajnikant Balabhai Vankar on the allegation that he is the owner of the survey No.71 and has grown crop of the potato. That six accused, who are the owners of the neighbouring farm came to his farm and started using abusive language telling him that he had caught their electric connection. That the complainant told them that he did not do so. That due to that, all the persons provoked and one Sushilaben Jivanbhai Vankar came with sickle in her hand and other accused came there to beat the complainant. It is alleged in the complaint that when complainant started walking go back to his home due to apprehension that the accused will beat him. The other accused gave threat the complainant that he should not enter in his farm otherwise, they will kill him. It is also clarified that Gandabhai Raval, Balvantbhai Raval, Amlabhai Raval have not uttered word against the caste of the complainant. 2.1 It is contended that the appellants had preferred Criminal Misc. Application No.91 of 2019 before the Sessions Court, Modasa, District: Arvalli which came to be rejected by the learned 2nd Additional Sessions Judge, Modasa, District: Arvalli vide order dated 21.01.2019. Against the said order, the appellants have preferred the present appeal and stated that there is no any offence made out against them and they are innocent and there is civil dispute between the parties and notice was issued by the complainant earlier for civil dispute and due to that the false complaint has been filed arraigning them as accused. The appellants have prayed to release them on anticipatory bail on suitable terms and conditions. 3. The appellants have prayed to release them on anticipatory bail on suitable terms and conditions. 3. Affidavit-in-reply has been filed by respondent No.2 – original complainant wherein he has stated that the present appellants are headstrong persons of the village and it is prima facie case against them. He has submitted to reject the present appeal. 4. Heard Mr. Amit Chaudhary, learned advocate for the appellants, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 and Ms. Ratna Vora, learned advocate for respondent No.2 – original complainant. Perused the papers made available by the prosecution as well as annexed with the memo of appeal. 5. Mr. Amit Chaudhary, learned advocate for the appellants has submitted the same facts which are narrated in the memo of appeal and has prayed to release the appellants on bail. 6. Per contra, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 has vehemently opposed the grant of bail. Whereas, Ms. Ratna Vora, learned advocate for respondent No.2 has submitted that considering the affidavit-in-reply filed by respondent No.2, the present appeal may be dismissed. 7. 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 . 8. 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.". (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.". 8.1 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. 8.2 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. 8.4 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. 8.5 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. 9. 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. 9. On perusal of the material placed on record, it appears that there is some dispute regarding right of way. It also appears from the FIR that there is doubt as to the commission of the offence under the provisions of the Atrocity Act. Now, considering the material placed on record, this Court is of the opinion that without discussing the evidence in detail and when there is no prima facie case under the Atrocity Act then the power under Section 438 of the Criminal Procedure Code is available to this Court and considering the factual aspects of the present case, the appeal is required to be allowed. 10. In the result, the present appeal is allowed. The impugned order dated 21.01.2019 passed by the learned 2nd Additional Sessions Judge, Modasa, District: Arvalli in Criminal Misc. Application No.91 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 - 2/2019 registered with Bayad Police Station, District: Arvalli, the appellant shall be released on bail on furnishing a personal bond of Rs. Application No.91 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 - 2/2019 registered with Bayad Police Station, District: Arvalli, 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 appellants shall : (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at concerned Police Station on 06.05.2019 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; 11. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. The appellants 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 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. 12. 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. 13. The appeal stands disposed of, accordingly. Direct service is permitted.