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2020 DIGILAW 391 (GUJ)

Umang Pravinchandra Raval v. State of Gujarat

2020-03-03

B.N.KARIA

body2020
ORDER : 1. The appellant has filed Criminal Misc. Application No. 9228 of 2019 before the Court of learned Special Judge (Atrocity) Court No. 20, Exclusive Special Court (Atrocity), City Sessions Court, Ahmedabad 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. I-126 of 2019 with Khokhara Police Station, Ahmedabad for the offence punishable u/s. 406, 420, 506(2), 323, 294(KH), 114 and 120(B) of the Indian Penal Code and u/s. 3(2)(5)(a), 3(g), 3(p), 3(r), 3(s) (z)(c) and u/s. 8 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 Special Judge (Atrocity) Court No. 20, Exclusive Special Court (Atrocity), City Sessions Court, Ahmedabad rejected the said application on 4.1.2020. 2. Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14-A of the Atrocity Act. 3. Heard learned advocates for the respective parties and learned APP for the respondent-State. 4. Learned advocate for the appellant has submitted that the appellant is innocent person and wrongly involved in the present crime in question. That, there is no direct or indirect role attributed to the present appellant. That, the alleged dispute which is going on between the present respondent No. 2 and the proprietor of JK properties (Kalpeshbhai), but the present appellant is nowhere in picture. That, the present appellant has no nexus either with the respondent No. 2 nor the proprietor of JK properties. That, the appellant is the outsider who has received the work order from the JK Properties to construct the scheme of Rinku Flats. That, the appellant has yet to recover huge amount against the work which he has done pursuant to work order given to him. That, the appellant has nothing to do with the present crime in question, and his name has wrongly been dragged with a view to achieve the goal of the respondent No. 2. That, the alleged offence has never been occurred at the site place. That the time and place which is narrated by the respondent No. 2 in his FIR is the time on which there was a meeting going on with the society members. That, the alleged offence has never been occurred at the site place. That the time and place which is narrated by the respondent No. 2 in his FIR is the time on which there was a meeting going on with the society members. That, the appellant has nothing to do with present informant as there is no such transaction ever taken place between the informant and present appellant. Hence, it was requested by learned advocate for the appellant to enlarge the present appellant on anticipatory bail in the event of his arrest. 5. From the other side, learned APP for the respondent -State as well as learned advocate for the respondent No. 2 have opposed the prayer made by the appellant and submitted that on 29th November, 2019 in presence of present appellant along with co-accused at about 4.30 p.m. at Rinku Appartment, Khokhara, request was made by the complainant to pay the money to him as well as Flat, present appellant along with co-accused annoyed with the complainant and spoke certain derogative words with a view to insult his caste/intimidated him. That, the present appellant and co-accused slept twice or thrice and spoke abusive language and threat was given to the complainant to commit murder. Therefore, the complainant gave one application before Khokhara Police Station. That, present appellant and co-accused assured to pay the due amount to the complainant as well as flat but, it was not given to him. Therefore, the complaint was filed. That, prima-facie the offence was clearly made out against the 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 as well as learned advocate for the respondent No. 2 have requested to dismiss the present appeal. 6. 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. 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(2)(5)(a), 3(g), 3(p), 3(r), 3(s)(z)(c) and u/s. 8 of the Atrocity Act. 7. 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. 8. 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. 9. 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 respondent No. 2 lodged a complaint against the present appellant and another co-accused on 20th December, 2019. As per allegations made in the complaint, present appellant is partner of the accused No. 1. That, the main allegations were made in the complaint against accused No. 1 of receiving Rs. 25.00 Lacs from the complainant and hand over the possession of the flat in February, 2019. Thereafter, possession of the Flat was not given by the accused No. 1 as well as present accused, therefore, the complainant was constrained to file a complaint. That, the main allegations were made in the complaint against accused No. 1 of receiving Rs. 25.00 Lacs from the complainant and hand over the possession of the flat in February, 2019. Thereafter, possession of the Flat was not given by the accused No. 1 as well as present accused, therefore, the complainant was constrained to file a complaint. It appears from the documents produced on record that there was agreement executed between the accused No. 1 and accused No. 2 for redevelopment of the scheme namely Vandana Cooperative Housing Society Limited wherein, Rinku Apartment was there. There is nothing on record that the present appellant was partner of the accused No. 1. On 29th November, 2019, an application was given by the complainant before the Khokhara Police Station making similar allegations against the present appellant as well as other co-accused. The police had initiated an inquiry and recorded statement of the complainant, Ratilal Gaurishankar Kosthi, Amarsinh Somaji Thakore, Pranavbhai Joshi, Rajeshbhai and others. In the application given by the complainant before the Khokhara Police Station, the similar allegations are made as made in the present complaint. During the course of investigation, none of the witnesses whose statement were recorded by the police have supported the case of the complainant. It appears that the complainant did not succeed in his motive hence, later on he has filed a complaint on 20th December, 2019. Prima-facie, it appears that the complaint was lodged by the complainant against present appellant however there was no direct transaction of accepting any money or hand over possession of any flat and the appellant was not the part of the accused No. 1. Considering the facts and allegations made by the complainant as well as police papers produced on record, judicial discretion is required to be exercised in favour of the present appellant. Complainant has tried civil dispute converting it to in criminal dispute. Therefore, considering the decision rendered in the aforesaid citations, present appeal deserves consideration. 10. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 4.1.2020 passed in Criminal Misc. Application No. 9228 of 2019 by learned Special Judge (Atrocity) Court No. 20, Exclusive Special Court (Atrocity), City Sessions Court, Ahmedabad 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. Application No. 9228 of 2019 by learned Special Judge (Atrocity) Court No. 20, Exclusive Special Court (Atrocity), City Sessions Court, Ahmedabad 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. (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. 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 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. 12. 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. 12. 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. 13. 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. 14. Notice stands discharged. Direct service is permitted.