Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 761 (GUJ)

Vaghela Dilipbhai Gulabsang v. State of Gujarat

2019-07-31

UMESH TRIVEDI

body2019
JUDGMENT : Umesh Trivedi, J. 1. This Appeal under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act") is preferred by the appellants challenging the order passed by the learned 8th Additional Sessions Judge, Ahmedabad (Rural) Mirzapur dated 24.06.2019 in Criminal Miscellaneous Application No. 1977 of 2019 rejecting the prayer for anticipatory bail of the appellants. 2. The appellants are facing FIR for an offence punishable under Sections 302, 364 and 114 of the Indian Penal Code (herein after referred as "IPC") as also under Section 3(2) (v) of the Act filed by respondent No. 2 herein. 3. Shri Bhargav Bhatt, learned Advocate for the appellants submits that not only the appellants but no accused could have been prosecuted for the offence under the Act as the deceased, against whom an offence is committed, as alleged in the FIR, belongs to Scheduled Tribe of State of Rajasthan. He has drawn the attention of the Court to the FIR where the first informant - wife of the deceased made it clear that she herself is of Scheduled Caste of Gujarat State and her husband is of Scheduled Tribe, who is native of State of Rajasthan. 3.1. He drew the attention of the Court to Section 2(c) of the Act, which defines Scheduled Castes and Scheduled Tribes as under:- "2(c) Scheduled Castes and Scheduled Tribes" shall have the meanings assigned to them respectively under clause (24) and clause (25) of Article 366 of the Constitution;" Elaborating further, Shri Bhatt, learned Advocate for the appellants has drawn the attention to Clause (24) and Clause (25) of Article 336, which defines Scheduled Castes and Scheduled Tribes respectively. Clause (24) of Article 366 defines "Scheduled Castes" as such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution." Clause (25) of Article 366 defines "Scheduled Tribes" as such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution." However, according to Shri Bhatt, the caste, races or tribes etc. are deemed to be Scheduled Caste for the purpose of the Constitution under Article 341 as defined under Clause (24) of Article 366 of the Constitution of India. Under Article 341 by a public notification, after consultation with the Governor of the State or Union Territory, President is empowered to specify the caste, races or tribes or parts of or groups within such caste, races or tribe, which shall for the purpose of this Constitution be deemed to be Scheduled Caste in relation to that State or Union Territory as the case may be. Similar is the provision of Scheduled Tribe under Article 342 of the Constitution of India. He submitted that therefore the declaration of Scheduled Caste or Scheduled Tribe is State specific. He has further submitted that the person of either that caste or tribe, so long as they are resident of the State of origin, can be conferred with rights, privileges or benefits. According to him, if they migrate from their State of origin, they lose their right, privileges or benefits because of the caste, which is declared as Scheduled Caste or Scheduled Tribe in the State of origin. He has drawn the attention of the Court to Article 366 as also Articles 341 and 342 and contended that notifying Scheduled Caste or Scheduled Tribe is for the purpose of this Constitution, and that too, in relation to that State. In short, his submission is that a person, who is notified to be of Scheduled Caste or Scheduled Tribe, may not be having the very same rights, benefits or privileges in the State of migration wherever he goes, and therefore, according to him, in the present case, the deceased, who is declared to be Scheduled Tribe in the State of origin, being Rajasthan, cannot be said to be of Scheduled Tribe in the State of Gujarat, and therefore, no offence under Section 3(2)(v) of the Act can be said to have been committed against the accused of the present case. 3.2. Shri Bhargav Bhatt, learned Advocate for the appellants, has relied on the decision of the Hon'ble Supreme Court in the case of Bir Singh v. Delhi Jal Board reported in (2018) 10 SCC 312 , more particularly, paragraph Nos. 30 to 36 wherein various decisions of Hon'ble Supreme Court have been considered. 3.2. Shri Bhargav Bhatt, learned Advocate for the appellants, has relied on the decision of the Hon'ble Supreme Court in the case of Bir Singh v. Delhi Jal Board reported in (2018) 10 SCC 312 , more particularly, paragraph Nos. 30 to 36 wherein various decisions of Hon'ble Supreme Court have been considered. He has further relied on the decision of this Court in the case of Girdhar C. Koru v. Managing Director, Gujarat State Handloom Development Corporation & Ors reported in 2000 (3) GLH 795 for the proposition that the person of a Scheduled Caste or Scheduled Tribe, on migration, cannot carry any special right or privilege attributed to him or granted to him in his original State specified for their State or area or part there of. 4. Shri Bhatt, learned Advocate for the appellants further contended that the penal statute has to be interpreted strictly by adopting literal rule of interpretation. For the purpose, he has relied on the decision of the Hon'ble Supreme Court in the case of Zuari Cement Limited v. Regional Director, E.S.I.C, Hyderabad reported in 2015 (7) SCC 690 , more particularly, paragraph 14 wherein the judgment in the case of Babu Verghese and Others v. Bar Council of Kerala and Others reported in (1999) 3 SCC 422 is referred to, more particularly, paragraph 31 of that judgment, which reads as under:- "31 It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (45 LJCH 373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 , who stated as under":- "[Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all"] Shri Bhatt, learned Advocate for the appellants has relied on the decision of the Hon'ble Supreme Court in the case of B. Premanand v. Mohan Koikal & Ors reported in 2011 (4) SCC 266 , more particularly, paragraph Nos. 13 to 19 on the literal rule of interpretation. 4.1. 13 to 19 on the literal rule of interpretation. 4.1. He has further relied on the decision of this Court in the case of Dinesh @ Dilo Bhalubhai Tharukiya v. State of Gujarat rendered in Criminal Appeal No. 1058 of 2003 wherein it is held in paragraph Nos. 5 and 6 as under:- "5. A heavy burden was cast upon the prosecution before the provisions of the Atrocities Act could be invoked, inasmuch as, the very opening words of Section 3 of the Atrocities Act, which is reproduced herein makes it eloquent that the victim must be and the offender must not be member of scheduled caste or scheduled tribe. "3. Punishment for offences of atrocities. (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,(1) (xi) assaults or uses force to any woman belonging to a Scheduled Caste or Scheduled Tribe with intent to dishounour or outrage her modesty." (emphasis supplied) 6. In absence of the evidence on above lines, we are of the considered opinion that the learned trial Judge was in serious error in convicting the appellant under the provisions of the Atrocities Act and sentencing him on that basis for life imprisonment." 4.2. In the case of Dinesh @ Buddha v. State of Rajashtan reported in (2006) 3 SCC 771 drawing attention to paragraph Nos. 14 and 15 of the decision, it is submitted that sine qua non for application of Section 3(2)(v) of the Act is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe, and therefore, according to him, unless it is shown by the prosecution, at the threshold, that the deceased is either of Scheduled Caste or Scheduled Tribe and any contemporaneous record is produced, no FIR could have been registered under the Act. 4.3. Shri Bhatt, learned Advocate for the appellants has further contended that the first informant has failed to state that the accused are not members of Scheduled Caste or Scheduled Tribe. Drawing the attention to the opening part of Section 3 of the Act, he submitted that for commission of offence under the Act, it has to be first shown that the accused is not a member of Scheduled Caste or Scheduled Tribe and then only he can be said to have committed an offence under the Act. 4.4. Drawing the attention to the opening part of Section 3 of the Act, he submitted that for commission of offence under the Act, it has to be first shown that the accused is not a member of Scheduled Caste or Scheduled Tribe and then only he can be said to have committed an offence under the Act. 4.4. Shri Bhatt, learned Advocate for the appellants relying on the decision of the Hon'ble Supreme Court in the case of Gorige Pentaiah v. State of Andhra Pradesh reported in (2008) 12 SCC 531 submitted that the basic ingredient of Section 3(1)(x) of the Act is that the Complainant ought to have alleged that the accused was not a member of Scheduled Caste or Scheduled Tribe. In the said case, according to him, for non mentioning, in the Complaint by the Complainant, that the accused is not a member of Scheduled Caste or Scheduled Tribe, the Hon'ble Supreme Court has quashed the FIR, and therefore, it is submitted that unless and until it is so stated in the FIR, no offence under the Act could have been registered. 4.5. According to Shri Bhatt, learned Advocate for the appellants, the opening part of Section 3 of the Act and its prerequisite for registering an offence under the Act is that it should be averred in the Complaint that the accused is not a member of Scheduled Caste or Scheduled Tribe. He has submitted that so far as the present case is concerned, there is no whisper about the same in the FIR as also in the papers of the investigation. 4.6. According to Shri Bhatt, learned Advocate for the appellants, in the present case, the basic ingredients of Section 3(2)(v) of the Act is missing as the first informant has not averred in the FIR that the accused - appellants are not members of Scheduled Caste or Scheduled Tribe, which is prerequisite for invoking Section 3(2)(v) of the Act and registering an offence for the same. 4.7. 4.7. Shri Bhatt, learned Advocate for the appellants has drawn the attention of the Court to page 20 of the compilation, which is copy of the order passed by the coordinate Bench of this Court dated 18.02.2019 in the case of Yunuskhan Hayatkhan Malek v. State of Gujarat rendered in Criminal Appeal No. 309 of 2019 wherein relying on the judgment in the case of Gorgie Pentaiah (Supra) and considering the fact that it is a legal requirement on the part of the Complainant to aver that the accused - appellant is not a member of Scheduled Caste or Scheduled Tribe for invoking the provisions under Section 3 of the Act, and therefore, in the said decision this Court has rejected the contention that in view of Section 18A of the Act, no provision of Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code") could be invoked to a case under the Act. The Court has concluded that when mandatory averments are missing in that FIR, it is doubtful whether the provisions of the Act would come into play, and therefore, the Court has passed an order granting anticipatory bail to the accused therein. On similar line, there is another oral order, which is at page 25 of the compilation in the case of Bharatbhai Butabhai Bharvad and Ors. v. State of Gujarat rendered in Criminal Appeal No. 429 of 2019. Drawing attention to paragraph 10.1, after considering statements of objects and reasons and considering the judgment of Hon'ble Supreme Court in the case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra and Another reported in (2008) 12 SCC 531 , this Court has while dismissing the Appeal qua Bharatbhai Butabhai Bharvad -appellant No. 1 has entertained the same qua appellants Nos. 2 and 3. Drawing the analogy therefrom, it is submitted that for an individual accused also applicability of the Act can be determined by the Court. 4.8. He has drawn the attention of the Court to the decision of this Court in the case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja v. State of Gujarat and Another rendered in Criminal Miscellaneous Application No. 15188 of 2014, more particularly, paragraph Nos. 7 and 10. 4.8. He has drawn the attention of the Court to the decision of this Court in the case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja v. State of Gujarat and Another rendered in Criminal Miscellaneous Application No. 15188 of 2014, more particularly, paragraph Nos. 7 and 10. This Court has recorded that sine qua non is that the victim should be a person, who belongs to Scheduled Caste or Scheduled Tribe and that the offence under the IPC is committed against such victim on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In absence of such ingredients, no offence under Section 3(2)(v) of the Act can be said to be committed. Lastly he has referred to a decision in the case of Kamlesh Krashnakant Modi & Ors v. State of Gujarat and Ors rendered in Criminal Miscellaneous Application No. 8421 of 2008 contending that the case of Gorige Pentaiah (Supra) is relied on in the case and considering two other decisions of the Hon'ble Supreme Court in the case of Asmathunnisa v. State of A.P reported in AIR 2011 SC 1905 and in the case of Ashabai Machindra Adhagale v. State of Maharashtra & Ors. reported in (2009) 3 SCC 789 , this Court has concluded that the Complainant is required to allege that the accused is not a member of Scheduled Caste or Scheduled Tribe, then only on fulfilling other ingredients of an offence under Section 3(1)(x) of the Act can be said to have been committed. In short, on that ground, for non-disclosure of the fact that the accused is not a member of Scheduled Caste or Scheduled Tribe, the FIR came to be quashed. 4.9. Shri Bhargav Bhatt, learned Advocate for the appellants has further submitted that the case of Gorgie Pentaiah (Supra) has been followed by various Benches of this Court. According to him, the Division Bench of this Court in the case of Mohammadbhai Valibhai Agariya & Ors v. State of Gujarat reported in 2017 (2) GLR 1363 has accepted, as settled position, the principle contained in the case of Gorgie Pentaiah (Supra). He drew the attention of the Court to paragraph 12.49 from the judgment, which reads as under; "12.49. Section 3 of the Atrocity Act, can be applied if the accused are not the members of Scheduled Castes/Scheduled Tribes. He drew the attention of the Court to paragraph 12.49 from the judgment, which reads as under; "12.49. Section 3 of the Atrocity Act, can be applied if the accused are not the members of Scheduled Castes/Scheduled Tribes. There is nothing on record to show that the accused persons are not the members of Scheduled Castes/Scheduled Tribes. It is settled legal position that in absence of such averments in 3 the Complaint, the Complaint can be quashed and thus the case devoid of such averments and/or proof cannot be entertained. The accused are, therefore, acquitted of the charges under Section 3(2)(v) of the Atrocity Act." 4.10. According to Shri Bhatt, learned Advocate for the appellants, in order to attract the provisions of Section 3(2)(v) of the Act, the offence in question committed by the accused must be the one under IPC, which is punishable with sentence of 10 years or more. He has submitted that in the present case, though the offence is registered under Section 302 of the IPC, prima facie, the same is not attracted in the facts and circumstances of the case alleged in the FIR. According to him, it is layman's interpretation that every death resulting in consequence of injuries is homicide amounting to murder punishable under Section 302 of the IPC. However, its Lawman's duty to find out from the context of facts that which Section spelled from Sections 299 to 333 is applicable in the facts and circumstances of the case. He has further submitted that in the present case the injuries caused to the deceased was with a view to restore the properties belonging to accused No. 1 - Lalbha. He has further submitted that as the injuries caused to the deceased was on non vital parts of the body and there is no opinion to the effect that any specific injury is sufficient to cause death. According to him, the injuries found on the body is not sufficient to cause death. He has submitted that the cause of death assigned is "vasovagal shock" resulting into death of the deceased. Elaborating it further, he submitted that vasovagal shock is not considered as direct result of causing injuries and is considered as cardiac arrest. He has further submitted that the injuries were caused to the deceased with a view to restore the property i.e. money lent to him. Elaborating it further, he submitted that vasovagal shock is not considered as direct result of causing injuries and is considered as cardiac arrest. He has further submitted that the injuries were caused to the deceased with a view to restore the property i.e. money lent to him. In his submission, in the facts and circumstances of the present case, the injuries caused to the deceased is amounting to offence either under Section 330 or Section 331 of the IPC, and therefore, he submitted that neither Section 330 nor Section 331 of the IPC is having minimum punishment of 10 years or more, and therefore, though the offence alleged is Section 302 of the IPC, prima facie reading of the FIR discloses that the offence is either under Section 330 or Section 331 of the IPC. He has relied on following decisions of different High Courts for making good his submissions; (i) decision of Allahabad High Court in the case of Manish v. State of U.P and connected Appeals, being Criminal Appeal No. 7757 of 2009 and Other Appeals; (ii) decision of Madras High Court in the case of Muniammal v. State rendered in Criminal Appeal No. 892 of 2012; (iii) decision of Madhya Pradesh High Court in the case of Mahila Guddan v. The State of Madhya Pradesh rendered in IA No. 21445 of 2017. 4.11. Shri Bhargav Bhatt contends that if the deceased has died of vasovagal shock, it cannot be attributed to the injuries and that shock might have been caused because of cardiac arrest. He has also relied on the material downloaded from wikipedia in respect of "Reflex Syncope ". He has relied on the following passage from that material:- "Reflex syncope is divided into three types: vasovagal, situational, and carotid sinus. Vasovagal syncope is typically triggered by seeing blood, pain, emotional stress, or prolonged standing. Situational syncope is often triggered by urination, swallowing, or coughing. Carotid sinus syncope is due to pressure on the carotid sinus in the neck. The underlying mechanism involves the nervous system slowing the heart rate and dilating blood vessels resulting in low blood pressure and therefore not enough blood flow to the brain." 4.12. He has also drawn the attention to the passage from the book titled as the Penal Law of India authored by Dr. Hari Singh Gour. The underlying mechanism involves the nervous system slowing the heart rate and dilating blood vessels resulting in low blood pressure and therefore not enough blood flow to the brain." 4.12. He has also drawn the attention to the passage from the book titled as the Penal Law of India authored by Dr. Hari Singh Gour. The commentary below Section 330 of book under the head "Intention negativeing homicide", which reads as under:- "Sometimes persons thus subjected to maltreatment succumb to their injuries. The Lower Courts sometimes construe the case to be then one of culpable homicide, but it is forgotten that a person who tortures another to confess never intends the other to die, nor can he be presumed to know that death is likely. His object is to make him admit his guilt and this object he cannot secure if he knowingly kills the sufferer. Where, therefore, the beating, however, violent, was clearly to extort a confession from the sufferer and the latter dies in consequence of the assault, the appropriate Section, for punishment of the crime is either this or the next Section." According to him, persons who cause hurt to secure restitution of their property may or may not be Officer of the Police. For a creditor or a rightful owner may just as well cause hurt for that purposes as any other person interested in the investigation of crime. 4.13. Making good his submission, he has relied on the decision in the case of Harit Ishwarbhai Andhariya and Anr v. State of Gujarat reported in 2000 (1) GLH 496 . Relying on paragraph 6 of the reported decision, he submitted that since there was no fracture found anywhere on the body of the deceased and the deceased fell down because of force used by the accused, considering the nature of injury, in that case, it is concluded that "this is not the case wherein it can be even inferred that the accused or any of them must have tried to "inflict" grievous hurt. To sustain grievous injury is something different than to inflict grievous injury." In the said case, the Court has concluded that at the most, accused can be tried for; offence punishable under Section 323 of IPC and not under Section 302 of IPC. To sustain grievous injury is something different than to inflict grievous injury." In the said case, the Court has concluded that at the most, accused can be tried for; offence punishable under Section 323 of IPC and not under Section 302 of IPC. Over and above that, since there was a case under the Atrocities Act, the alleged push given by the accused not on account of the fact that the victim was a member of Scheduled Caste, since the Investigating Authority did not find it fit to apply Section 3(2)(v) of the Act, it is concluded, then under the same set of facts charge under Section 3(1)(x) of the Act ought not to have been applied and framed against the accused, and therefore, the Court has also quashed the charge for an offence under Section 3(1)(x) of the Act along with charge under Section 302 of the IPC. He has also relied on the case of Rohit Babuji Thakor v. State of Gujarat rendered in Criminal Revision Application No. 21 of 2010 wherein this Court ordered to discharge the accused in that case for an offence under Section 307 and Section 333 of the IPC concluding that in all cases injury caused is not conclusive of the fact whether an offence under Section 307 of the IPC is made out and it is the intention or knowledge to cause injury, which if had caused death, person would be guilty of murder which is of importance. Such an intention or knowledge can be culled out from the attendant circumstances. It is further contended that this Court in the aforesaid case, relying on the decision of the Hon'ble Supreme Court, for the purpose of Section 307 of the IPC, stated that what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The Section clearly contemplates an act, which is done with an intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder, and therefore, he has submitted that there was neither an intention nor knowledge on the part of the accused to commit murder of the deceased. The intention or knowledge of the accused must be such as is necessary to constitute murder, and therefore, he has submitted that there was neither an intention nor knowledge on the part of the accused to commit murder of the deceased. As a necessary corollary it is argued that at best offence under Sections 330 or Section 331 of the IPC can be said to have been committed, which prescribes no minimum punishment of 10 years as is required for an offence under Section 3(2)(v) of the Act. 5. Drawing attention to Section 3(2)(v) of the Act, Shri Bhargav Bhatt, learned Advocate for the appellants submitted that one of the necessary ingredients of the Section is that if a person commits an offence under the IPC where punishment provided is for a term of 10 years or more against a person or property knowing that such person is a member of Scheduled Caste or Scheduled Tribe shall be punishable with imprisonment of life and fine. Elaborating it further, he submits that unless and until the caste of the person against whom an offence is committed is known to the offender, no offence as such under Section 3(2)(v) of the Act can be said to have been committed. When his attention was drawn to Section 8(c) of the Act, he has submitted that even the personal knowledge of the victim or his family cannot be inferred but it has to be proved. He submitted that for invoking presumption, conditions therein has to be proved. He has submitted that presumption, as provided under Section 113(B) of the Indian Evidence Act, 1872, is alike as Section 8(c) of the Act. Elaborating the contentions he submitted that all essential requirement to invoke the presumption is to be strictly followed as decided by the Hon'ble Supreme Court in the case of Bakshish Ram and Another v. State of Punjab reported in 2013 (4) SCC 131 . Reading the FIR as a whole, there is nothing to confer knowledge upon the accused so as to constitute necessary ingredient to invoke Section 3(2) (v) of the Act. Reading the FIR as a whole, there is nothing to confer knowledge upon the accused so as to constitute necessary ingredient to invoke Section 3(2) (v) of the Act. He has further submitted that even the victim -respondent No. 2 herein cannot be identified as member of scheduled caste inasmuch as she is using "Jadav" as her surname instead of "Harijan-Vankar", which is her caste, and therefore, he has submitted that even the knowledge about the caste of the deceased cannot be presumed for invoking the provisions of Section 3(2)(v) of the Act. 6. On merit, Shri Bhargav Bhatt, learned Advocate for the appellants has submitted that looking at the affidavit tendered by the Investigating Officer filed before the learned Sessions Court objecting the anticipatory bail of the appellants, it is clear that the only role assigned to the appellants is of catching hold of the deceased and main accused has caused injuries by means of wooden log on hips, thighs and calves. In short, his submission is that other than the main accused, who is already arrested, no accused have caused injuries to the deceased, and therefore, in his submission, the appellants, who are not part of assault on the deceased and are ready and willing to co-operate with the investigation and in view of the judgment of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in 2011 (1) GLH 11 , more particularly in paragraph 128, the appellants be directed to join the investigation and only when the accused does not co-operate with the investigating agency, then only the accused be arrested. He has further submitted that the appellants have not committed any crime nor their description is given by any of the witnesses and since they are ready and willing to participate in the TI Parade, they be granted an order of anticipatory bail. 7. As against that, Ms Kruti Shah, learned Advocate for respondent No. 2, submitted that Section 18 of the Act specifically bars entertaining any application under Section 438 of the Code. Section 18 of the Act says that nothing under Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. Section 18 of the Act says that nothing under Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. According to her, once any accusation is levelled against any person, where it involves arrest of him, in that case, provisions of Section 438 of the Code cannot be invoked by the accused. She has further submitted that considering the insertion of Section 18A to the Act, it is clear that 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, and therefore, she has submitted that it has been specifically inserted with a view to restore the provisions of Section 18 of the Act, and therefore, she has submitted that this Appeal seeking order of anticipatory bail may not be entertained. 7.1. She has further submitted that not only the deceased was of Scheduled Tribe, the first informant, who is also the victim as defined under Section 2(ec) of the Act, is of Scheduled Caste of State of Gujarat, and therefore, she has submitted that the provisions of the Act is rightly invoked in the present case. It is further submitted that the FIR is not an encyclopedia. Non production of caste certificate will not preclude the Police from registering an offence under the Act. It is further submitted that the averments in the FIR clearly discloses threat of dire consequences administered to her as and when accused No. 1 used to visit her house for the purpose of recovery of amount. Thus, first informant being the victim, it is asserted that in view of Section 8(c) of the Act, the caste of the deceased as also of the first informant should be presumed to be within the knowledge of accused No. 1 so invoking the provisions of the Act in the FIR cannot be found fault with. She has further submitted that the appellants, who are abettor to the crime are equally responsible for the act committed by accused No. 1. According to her, since there are eye witnesses to the incident, the very fact that the appellants have come forward seeking anticipatory bail, their involvement in the crime is very clear. She has further submitted that the appellants, who are abettor to the crime are equally responsible for the act committed by accused No. 1. According to her, since there are eye witnesses to the incident, the very fact that the appellants have come forward seeking anticipatory bail, their involvement in the crime is very clear. It is submitted that whether accused No. 1 has committed an offence under Section 302 of the IPC or not and whether it would fall under Section 330 or Section 331 of the IPC cannot be considered at this stage as investigation is at a crucial stage. It is further submitted that unless and until what Section is applicable to the act committed by the accused is determined either by the competent Court or on conclusion of the investigation by the investigating Authority, at the time of deciding bail, that too, anticipatory bail, it is not permissible. She has further submitted that apart from the eye witnesses to the incident, as mentioned by the Investigating Officer in his affidavit opposing anticipatory bail application filed before the learned Sessions Court, statement of accused No. 1, which is recorded during the course of investigation can also be looked into at the stage of deciding bail application, pending investigation. For the purpose, she has relied on and referred to oral orders passed by this Court in different proceedings in the case of Mohmed Salim Abdul Rasid Shaikh v. State of Gujarat rendered in Criminal Miscellaneous Application No. 1669 of 2001; Devjibhai Muljibhai Khimsuriya v. State of Gujarat rendered in Criminal Miscellaneous Application No. 11490 of 2008; Dharmeshbhai Kirtikumar Shah v. State of Gujarat rendered in Criminal Miscellaneous Application No. 2548 of 2014 and in the case of Jigneshkumar @ Shreepalsinh S/o. Ghanshyamsinh Gohil v. State of Gujarat rendered in Criminal Miscellaneous Application No. 9028 of 2019. She has further submitted that even during pendency of this Appeal, through relatives, the accused, who is already in custody, is trying to induce the first informant for settlement and if not then threatening her of dire consequences, and therefore, this application for an order of anticipatory bail may not be entertained. Vide affidavit, affirmed on 12.07.2019, the first informant has submitted reply in this Appeal, which is taken on record wherein she has produced the caste certificate of herself, and therefore, Ms. Vide affidavit, affirmed on 12.07.2019, the first informant has submitted reply in this Appeal, which is taken on record wherein she has produced the caste certificate of herself, and therefore, Ms. Kruti Shah, learned Advocate for respondent No. 2 - first informant has requested to reject this Appeal refusing anticipatory bail to the appellants. 8. Ms. Jirga Jhaveri, learned Additional Public Prosecutor, appearing for respondent No. 1 - State over and above adopting the arguments canvassed on behalf of the first informant submitted that the investigation is at a crucial stage and there are eye witnesses to the incident, as disclosed in the affidavit, by which prima facie involvement of the appellants is found on record. This Appeal seeking prayer for an order of anticipatory bail, which is specifically barred under Section 18 and Section 18A of the Act, it may not be entertained. She has produced the papers of the investigation for the perusal of the Court. 9. Heard the learned Advocates appearing for the parties. 10. Considering the argument canvassed by the learned Advocate for the appellants that since the deceased against person of whom the accused is said to have committed an offence, is of Scheduled Tribe in the State of Rajasthan, when offence is committed in State of Gujarat, no provisions of the Act can be invoked. As such, conferring the status of the Scheduled Caste or Scheduled Tribe is by Presidential notification, after consultation with the Governor for the purpose of Constitution of India, be deemed to be Scheduled Caste or Scheduled Tribe in relation to that State. When caste of a person is declared to be Scheduled Caste or Scheduled Tribe, may be for the purpose of constitution, in relation to that State, the status of caste does not get changed, on migration, within India. Though in a migrated State such person may not be entitled to reap any rights, benefits or privileges in respect of reservation in education or service under the Constitution, neither the caste nor the status attached to a person gets vanished. Though in a migrated State such person may not be entitled to reap any rights, benefits or privileges in respect of reservation in education or service under the Constitution, neither the caste nor the status attached to a person gets vanished. The person of that caste or tribe may not be entitled for the benefits under the Constitution in education or service in a migrated State but for invoking the provisions of the Act, which is conferring the dignity to the person it cannot be taken away only because he is declared deemed to be Scheduled Castes/Scheduled Tribe in his State of origin. Since such downtrodden Castes/Tribes are subjected to various offences, humiliation and harassment, to prevent that, the Act has been introduced in the year 1989. The Act is a special legislation to check the crimes committed against the Scheduled Castes and Scheduled Tribes and to achieve this objective the Act has been enacted. The Legislature was conscious enough to make special central legislation like this, which is applicable throughout India except the State of Jammu & Kashmir and despite that definition, Section 2(c) is incorporated in it, as it is defined under Clause (24) and (25) of Article 366 of the Constitution of India. If the Legislature wanted to restrict the applicability of the offence committed against a person in his State of origin only it would have made it very clear and loud expressly. The caste is conferred on a person by birth. It remains with him wherever he goes. The Act does not confer any right or privilege to a person either of Scheduled Caste or Scheduled Tribe but it confers respect and dignity to them. Though, on migration, person of that caste cannot claim any right or priviledge under the Constitution in respect of education or Employment regarding reservation to disadvantage of person of Scheduled Caste or Scheduled Tribe in that migrated State, however, they do not lose their identity as of that caste. Therefore, the argument advanced by the learned Advocate for the appellants that the person of that caste can invoke the provisions of the Act in their State of origin alone requires outright rejection. Therefore, the argument advanced by the learned Advocate for the appellants that the person of that caste can invoke the provisions of the Act in their State of origin alone requires outright rejection. Considering it hypothetically, if there are two friends, one is of Scheduled Caste or Tribe and another is not of that caste, so long as they are in State of origin of the person of Scheduled Caste or Scheduled Tribe and another person, who is not of that caste commits any offence in that State as defined under the Act, he can be prosecuted. If both of them together migrates to other State and if that non Scheduled Caste or Scheduled Tribe friend does any act, which is an offence under the Act, to his friend of Scheduled Caste or Tribe, he cannot be said to have committed an offence under the Act, if the argument of the learned Advocate for the appellants is accepted. It would bring such an anomalous situation. 10.1. Not only that, the Act provides for Statutory presumptions as to offences. If the Legislature intended its applicability in a particular State for a person of scheduled caste or tribe declared in relation to that State only it would have provided very clearly in the provisions itself. Section 3(2) (v) of the Act prescribes knowledge of the caste of a person against whom an offence is committed as necessary ingredient of it where knowledge can be presumed under Section 8(c) of the Act. Section 8(c) of the Act provides that if the accused is having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim unless contrary is proved. Thus, if the offender is having personal knowledge of the victim, may be a person against whom an offence is committed or who has suffered or experienced physical, mental, physiological, emotional or monetary harm or harm to his property as a result of commission of any offence under the Act, which also includes his relatives, legal guardian and legal heirs, and therefore, in the present case, the first informant is falling within the definition of victim, that knowledge can be presumed. The very fact that accused No. 1 is alleged to have visited the house of first informant frequently for the purpose of recovery of money alongwith the fact that the deceased i.e. her husband was a friend of accused No. 1, coupled with the fact that for lending money he had procured document of title to the property in which the victim resides and the said document came to be seized from the brother of accused No. 1 and not only that, accused No. 1, who is already arrested, in his statement, confirms these things, is more than enough to presume knowledge of caste of the victim. If the statement of the accused cannot be utilized for any purpose other than investigation then also to lend assurance to the facts, which would establish personal knowledge of the victim, it can certainly be considered while deciding the bail application. From the facts, as aforesaid, personal knowledge of the victim by the accused can be established. Once it is established there is a presumption, prima facie, with regard to the knowledge of the caste of the deceased, and therefore, there is no substance in the argument advanced by the learned Advocate Shri Bhatt, on that score. 10.2. It is contended by Shri Bhatt, learned Advocate for the appellants, that it is the precondition to attract the applicability of Section 3(2)(v) of the Act to mention in the FIR that the accused is not a member of Scheduled Caste or Scheduled Tribe as required under Section 3 of the Act and it is imperative to hold that in absence of such averments made in the FIR applicability of the Act is doubtful. Though the said contention appears to be attractive it is misconceived. For such submission, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Gorige Pentaiah (Supra). Various Benches of this Court have taken the very same view as propounded in it. 10.3. If one may have a look at the decision rendered by the Hon'ble Supreme Court in the case of Gorige Pentaiah (Supra), it is clear that the Hon'ble Supreme Court has quashed the FIR for non mentioning about the basic ingredient that the accused is not a member of scheduled caste or scheduled tribe in FIR. 10.3. If one may have a look at the decision rendered by the Hon'ble Supreme Court in the case of Gorige Pentaiah (Supra), it is clear that the Hon'ble Supreme Court has quashed the FIR for non mentioning about the basic ingredient that the accused is not a member of scheduled caste or scheduled tribe in FIR. The case of Gorige Pentaiah (Supra) is decided by two Judge Bench of the Hon'ble Supreme Court whereas larger Bench, being three Judge Bench of Hon'ble Supreme Court, in the case of Ashabai Machindra Adhagale (Supra) has taken a view that for non mentioning in the FIR that the accused is not a member of scheduled caste or scheduled tribe, no FIR can be quashed as it could be investigated during the course of investigation as FIR is not expected to be an encyclopedia. The Hon'ble Supreme Court has said that whether the accused belongs to Scheduled Caste or Scheduled Tribe can be gone into when the matter is being investigated. It is further held that after ascertaining the fact, during the course of investigation, it is open to the Investigating Officer to record that the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. In short, the larger Bench of the Hon'ble Supreme Court in a subsequent decision to the decision of Gorige Pentaiah (Supra) has taken a view that no FIR can be quashed on the ground that it is not mentioned in the FIR whether the accused is a member of scheduled caste or not. Thus, it is neither a precondition nor it is imperative to hold that in absence of averments to the effect that the accused is not a member of Scheduled Caste or Scheduled Tribe in the FIR, invoking the provisions of the Act is doubtful. Since the decision in the case of Ashabai Machindra Adhagale (Supra) is by larger Bench and subsequent to the case of Gorige Pentaiah (Supra), it is binding to all concerned. It appears that the decision in the case of Ashabai Machindra Adhagale (Supra) has never been brought to the notice of various Benches of this Court while deciding the cases relying on the decision in the case of Gorige Pentaiah (Supra). It appears that the decision in the case of Ashabai Machindra Adhagale (Supra) has never been brought to the notice of various Benches of this Court while deciding the cases relying on the decision in the case of Gorige Pentaiah (Supra). Thus, the decision in the case of Ashabai Machindra Adhagale (Supra) is the binding precedent on the point, and therefore, it has to be followed irrespective of the fact that various Benches of this Court have followed the judgment of the Hon'ble Supreme Court rendered in Gorige Pentaiah(Supra). It would not be out of place to mention that the case of Kamlesh Krashnakant Modi State of Gujarat and Ors rendered in Criminal Miscellaneous Application No. 8421 of 2008 considers both the judgments. However, this Court does not find either on facts or on law that Ashabai Machindra Adhagale (Supra) case is not an Authority on the issue, and therefore, challenge to the invocation of the provisions of the act on this ground also fails. 10.4. According to Shri Bhatt, learned Advocate for the appellants, unless and until the accused has committed an offence under the IPC where minimum punishment provided is 10 years or more against a person of Scheduled Caste or Scheduled Tribe, no provisions of Section 3(2)(v) of the Act can be invoked. According to him, since accused No. 1 had caused injuries to the deceased for restoration of property i.e. his lent money, in view of the fact that the deceased died of vasovagal shock, offence at the best would attract the provisions of Section 330 or Section 331 of the IPC. At the same time, according to Shri Bhatt, learned Advocate for the appellants, since there is no intention or knowledge to kill attributed to accused No. 1, considering the weapon used and the injuries found on the body of the deceased, it may be an offence of homicide but not culpable homicide. Making good his submission he submitted that the intention of accused No. 1 may be of only causing injuries to the deceased with a view to restore the properties belonging to the accused. At the same time, since the injuries caused is not on vital part of the body and there is no opinion to the effect that any specific injury is sufficient to cause death, offence would not fall within the definition of Section 299 i.e. culpable homicide. At the same time, since the injuries caused is not on vital part of the body and there is no opinion to the effect that any specific injury is sufficient to cause death, offence would not fall within the definition of Section 299 i.e. culpable homicide. The said submission appears to be misconceived. Looking at the Post Mortem note, the probable cause of death, pending report from FSL as also histopathology lab, is shown to be death due to vasovagal shock due to severe injuries. Though injuries found on the body of the deceased individually may not be sufficient to cause death but considering even the provisional cause of death, injuries collectively has caused the death, may be because of vasovagal shock. In short, the death is because of the injuries found on the body of the deceased, and therefore, injuries has a direct nexus with the death, and therefore, prima facie it cannot be concluded at this stage, that too, pending investigation deciding anticipatory bail, that whether an offence under Section 330 or Section 331 of the IPC is made out or offence under Section 302 of the IPC is made out. Prima facie, if offence falls under Section 302, when it prescribes life imprisonment, the provisions of Section 3(2)(v) of the Act gets attracted, and therefore, arguments advanced by the learned Advocate for the appellants even relying on various decisions of the Hon'ble Supreme Court on that score is not acceptable. Further more, this is not the stage where while deciding anticipatory bail application every minute details in that respect is to be gone into. Suffice it to say prima facie an offence is made out, and therefore, provisions of Section 3(2)(v) of the Act is rightly invoked. Since only because the appellants - accused are not part of assault but they have abetted the assault, as coming out from the record, merely they are ready and willing to cooperate with the investigation, no anticipatory bail can be granted to them, when the offence alleged is under Section 302 of the IPC and provisions of the Act are invoked, the Court is precluded from invoking the provisions of Section 438 of the Code, more particularly, in view of bar under Section 18 and 18A of the Act. Merely because description of the appellants are not given by any witnesses and their readiness to participate in TI Parade will not lead to a conclusion that they are entitled to have an order of anticipatory bail when Section 18 and Section 18A of the Act specifically bars invoking Section 438 of the Code to a case involving the arrest of any person on an accusation of having committed an offence under the Act. Hence, this Court does not find any merit in this Appeal, and therefore, it fails. The Appeal stands dismissed.