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2020 DIGILAW 381 (GUJ)

Nanjibhai Meramanbhai Vaniya v. State of Gujarat

2020-03-02

B.N.KARIA

body2020
ORDER : 1. The appellant has filed Criminal Misc. Application No. 60 of 2020 before the court of learned 10th Additional Sessions Judge, Anjar, District Kutchh u/s 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail in the event of his arrest on account of offence being registered vide C.R. No. 11993001200003 with Samakhiyai Police Station for the offence punishable u/s. 325, 323, 504, 506(2), 114 of Indian Penal Code and u/s. 3(1)(R), 3(1)(S), 3(1)(5-A) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short “the Atrocity Act”) as well as u/s. 135 of the Gujarat Police Act wherein, the learned 10th Additional Sessions Judge, Anjar, District Kutchh rejected the said application on 24.1.2020. 2. Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14(A)(2) of the Atrocity Act. 3. Heard learned advocates for the respective parties and learned APP for the respondent-State. 4. However, notice was served to respondent No. 2, he was not present to contest this appeal. An affidavit of service is filed by the present appellant, on record, wherein he has declared that he has served the notice to respondent No. 2 namely Babubhai Devrajbhai Budhiya on 22nd February, 2020 and obtained signature on the original. From the papers, thumb impression of Babubhai Devrajbhai Budhiya was affixed officially. It was served through Deputy General of Police, SC/ST Cell, Kutchh East, Gandhidham. 5. Learned advocate for the appellant has submitted that order passed by the learned Sessions Court is erroneous, without giving any cogent reasons and without appreciating evidence of witnesses. That, the appellant is aged 51 years and he is sole bread winner in his family That, the appellant is belonging to Meghvar Community which falls under Schedule Caste and hence, the allegations against the present appellant for the offence punishable under the provision of Atrocities Act is not made out. That, even in the affidavit filed by the Investigating Officer, it reveals that CCTV has recorded the incident which occurred with the complainant and even in the CCTV footages, only two persons had come out from car and there were quarreled with the complainant. That, even from the CCTV footage, presence of the preset appellant is not established. That, even in the affidavit filed by the Investigating Officer, it reveals that CCTV has recorded the incident which occurred with the complainant and even in the CCTV footages, only two persons had come out from car and there were quarreled with the complainant. That, even from the CCTV footage, presence of the preset appellant is not established. Admittedly, the present appellant was driving car but at the same time, the fact was remained undisputed that the present appellant did not take any part in the scuffle with the complainant. Hence, it was requested by learned advocate for the appellant to enlarge the present appellant on anticipatory bail in the event of his arrest. 6. From the other side, learned APP for the respondent -State has strongly objected the submissions made by learned advocate for the appellant and argued that during the course of investigation, further statement of complainant namely Babubhai Devrajbhai Budhia was recorded wherein, the name of the present appellant was disclosed. He has also explained why in the complaint the name of the appellant was not disclosed as he was tying with his handkerchief. That, motor vehicle Scorpio which was used in the alleged offence, was of the ownership of present appellant. That Section 18A of the Act clearly bars to grant of anticipatory bail as prayed by the present appellant. Therefore, no prayer may be granted by this Court for enlarging him on anticipatory bail. Ultimately, learned APP for the State has requested to dismiss the present appeal. 7. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan vs. State of Maharashtra, 2018 (6) SCC 454 , wherein the Hon'ble Supreme Court has held that 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. View taken by the High Court of Gujarat in the case of Pankaj D. Suthar (supra) and Dr. N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(1)(r) and 3(1)(s) of the Atrocity Act. 8. In the case of Union of India vs. State of Maharashtra in Review Petition (Cri.) No. 228 of 2018 in Criminal Appeal No. 416 of 2018, it was opined that direction nos. (iii) and (iv) issued by the Hon'ble Supreme Court deserve to be and are hereby recalled and consequently we hold that direction no. (v), also vanishes. The other directions remained as it is as there is no bar in granting anticipatory. This Court has made scrutiny of the complaint and prima-facie, it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint. 9. In the case of Gorige Pentaiah vs. State of Andhra Pradesh and Others, (2008) 12 SCC 531 , it was held that according to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe, he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. 10. Having considered the facts of the case, police papers and submissions made by learned advocate for the appellant as well as learned APP for the respondent-State, it appears that the alleged offence was committed on 3rd January, 2020 and on the very same day, the complaint was lodged u/s. 325, 323, 504, 506(2), 114 of the IPC as well as u/s. 3(1)(R), 3(1)(S), 3(2)(5) (A) of the Atrocity Act as well as u/s. 135 of the G.P. Act. From the entire complaint, no name of the present appellant was shown by the complainant nor any allegations was made against him of causing any injuries or participation in the offence. That, during the course of investigation, complainant-Babubhai Devrajbhai Budhiya has declared before the police stating the name of the present appellant. From the entire complaint, no name of the present appellant was shown by the complainant nor any allegations was made against him of causing any injuries or participation in the offence. That, during the course of investigation, complainant-Babubhai Devrajbhai Budhiya has declared before the police stating the name of the present appellant. That, two unknown persons were shown in the complaint wherein, first was Nanjibhai Vania and second one was not identified on account of handkerchief appeared on his face. That, motor vehicle which was used in the alleged offence, ownership of the vehicle is of the present appellant . That, no other allegations of assaulting the complainant or causing any injuries were made against him. As per affidavit of the Investigating Officer before the Sessions Court, in CCTV footage, the present appellant came with the other co-accused in white colour Scorpio car being Registration No. GJ-12-BF-1555. That, two accused step down from the vehicle along with stick and assaulted on the complainant. From the driver seat of the Scorpio vehicle, present appellant step down in the vehicle and was seeing assaulting by co-accused on the complainant with stick. Thereafter, complainant rushed into shop of Laxmi Supermarket and after sometime other co-accused, seat in the Scorpio vehicle which was drove by appellant. That, no other allegations were made against the present appellant in the police papers. It also appears that attracting the provision of Atrocity Act as alleged by the prosecution are missing in the complaint. Therefore, considering the decision rendered in the aforesaid citations, present appeal deserves consideration. 11. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 24.1.2020 passed in Criminal Misc. Application No. 60 of 2020 by learned 10th Additional Sessions Judge, Anjar, District Kutchh is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that the appellant:- (a) shall cooperate with the investigation and make himself available for interrogation whenever required. The appellant is ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that the appellant:- (a) shall cooperate with the investigation and make himself available for interrogation whenever required. (b) shall remain present at concerned Police Station on 11.3.2020 between 11.00 a.m. and 2.00 p.m. (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer. (d) shall 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) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders. (f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week. (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. 12. 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. 13. 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. 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. Notice stands discharged. Direct service is permitted.