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2020 DIGILAW 456 (GUJ)

Pratapbhai Kanubhai Khachar v. State of Gujarat

2020-03-16

B.N.KARIA

body2020
ORDER : 1. The present appeal under Section 14-A of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as well as under Section 439 r.w. Section 482 of the Criminal Procedure Code, 1973 is filed for regular bail in connection with the FIR being CR No. I-34/2019 registered with Ranpur Police Station, Botad (Rural) for the offence punishable under Sections 302, 394, 504, 506(2), 427, 143, 147, 148, 149 and 120(B) of the Indian Penal Code, 1860 and under Section 135 of the Gujarat Police Act r.w. Sections 3(1)(R)(5) and 3 (2)(5A) of the Scheduled Caste and Schedule Tribe (Atrocity) Act. 2. The appellant has filed Criminal Misc. Application No. 10 of 2020 before the Court of learned Additional Sessions Judge and Special Judge Atrocities, Botad u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered as FIR being CR No. I-34/2019 registered with Ranpur Police Station, Botad (Rural) for the offence punishable under Sections 302, 394, 504, 506(2), 427, 143, 147, 148, 149 and 120(B) of the Indian Penal Code, 1860 and under Section 135 of the Gujarat Police Act r.w. Sections 3(1)(R)(5) and 3 (2)(5A) of the Scheduled Caste and Schedule Tribe (Atrocity) Act, wherein the learned Additional Sessions Judge and Special Judge (Atrocity), Botad rejected the said application vide order dated 1st February 2020. Being aggrieved by the said order, the appellant preferred the appeal u/s. 14A(2) of the Atrocities Act. 3. Learned advocate for the appellant has submitted that the present appellant is wrongly involved in the offence by the Investigating Agency. He further submits that charge-sheet is filed and nothing is found against the present appellant. That, the Sessions Court has failed to appreciate the postmortem report as the cause of death is due to multiple injuries. Looking to the F.I.R. There is no role attributed to the present appellant inflicting any injury to the deceased. As per the F.I.R. appellant was not present at the place of incident when it was occurred. Appellant is made accused in the present F.I.R. Only on the basis of the statement of the complainant and his family members. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge and Special Judge, Atrocities, Botad. 4. Appellant is made accused in the present F.I.R. Only on the basis of the statement of the complainant and his family members. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge and Special Judge, Atrocities, Botad. 4. From the other side, learned APP as well as learned advocate for the respondent No. 2 have strongly objected the arguments advanced by the learned advocate for the appellant submitting that prima-facie, involvement of the present appellant is established. That, serious offence was committed by the present appellant hatching conspiracy in committing murder of the deceased-Manjibhai Solanki. It is further submitted that complaint was lodged by the son of the deceased namely Tusharbhai Manjibhai Solanki, wherein also, name of the present appellant was clearly shown by him. In the previous occasion also, number of offences were registered against the present appellant. Drawing attention towards the statement of three witnesses namely Arvindbhai Jadvabhai Bavaliya, Hareshbhai Dhirubhai Khavadiya, Sanjaybhai Dhirubhai Khavadiya learned APP has argued that involvement of the present appellant in committing murder was clearly established by the prosecution. That, cell-phone wherein recording was made by the deceased’s voice was sent to FSL and report is yet awaited. That, as the appellant has criminal history and involved in various offences, no lenient view can be taken by the Court. Learned APP has referred dying declaration script of the deceased and further submitted that as per the statement of the deceased in his dying declaration, there was 5 to 6 persons assaulted on him. Hence, it was requested by learned APP for the respondent-State as well as learned advocate for the respondent No. 2 to dismiss present appeal. 5. Learned advocate for the respondent no. 2 in support of his argument has placed reliance on the judgment of this Court in Criminal Misc. Application (for Regular Bail) No. 3440 of 2018, Criminal Misc. Application (for Regular Bail) No. 3694 of 2013 as well as 2015 Law Suit (SC) 899. Learned advocate appearing for the respondent no. 2 has also submitted that complainant has moved to challenge the judgment and order passed by this Court in Criminal Appeal no. 2259 of 2019 before the Hon'ble Apex Court and hence requested to dismiss the appeal. 6. Learned advocate appearing for the respondent no. 2 has also submitted that complainant has moved to challenge the judgment and order passed by this Court in Criminal Appeal no. 2259 of 2019 before the Hon'ble Apex Court and hence requested to dismiss the appeal. 6. Having considered the facts of the case, police papers, submissions made by learned advocate for the appellant and learned advocate for the respondent No. 2 as well as learned APP for the respondent-State, in the entire complaint, it appears that there is no allegation made suggesting trial under Prevention of Atrocities Act. If we look PM report, the cause of death is found due to multiple injuries. If we consider the complaint itself there is no specific role attributed to the present appellant inflicting any injury to the deceased as no weapon was attributed to the present appellant. 7. It appears that, present appellant was involved in the offence, on the basis of three statements of the aforesaid witnesses recorded by the Investigating Agency after passing of one and half month from the date of offence. In an oral dying declaration given by the deceased to his son, name of the present appellant was not given by him. In a second Para- of the complaint, name of the present appellant without making any allegations was found. It appears from the complaint that at the time of committing offence, present appellant was not present. In the entire investigation, police papers as well as FIR it appears that, incident was occurred because of the facts that the deceased was a member of the Schedule Caste and Schedule Community. No allegations are made against the present appellant. One offence was registered against the present appellant in the year 2011 vide C.R. No. 17 of 2011 under Sections 143, 147, 148, 149, 506 (2) of I.P.C. while second offence under Section 25 (1) (B), (A) of the Arms Act as well as under Section 3 (1) (10) of the Atrocity Act. 8. On previous occasion on 17th March 2011 a complaint was lodged by wife of the deceased against nine persons and other five unknown persons for the offence punishable u/s. 506(2) of the IPC as well as u/s. 3(1)(10) of the Atrocity Act. The present appellant was shown as accused no. 5 in the previous complaint. 8. On previous occasion on 17th March 2011 a complaint was lodged by wife of the deceased against nine persons and other five unknown persons for the offence punishable u/s. 506(2) of the IPC as well as u/s. 3(1)(10) of the Atrocity Act. The present appellant was shown as accused no. 5 in the previous complaint. It appears that Vanrajbhai was one of the accused in the said complaint. No allegations are made against the present appellant in the entire complaint and the appellant has not used any weapon in committing murder of the Manjibhai Jethabhai Solanki or had caused any injury. Only allegations are made against the present appellant of making racky of the deceased. In the dying declaration script also, name of the present appellant or any participation in committing office was not disclosed by the deceased. In Criminal Misc. Application No. 369 of 2013 was successive bail application after filing of charge-sheet and same was rejected by this Court. In another Criminal Misc. Application no. 3440 of 2018, charge was levelled u/s. 420 and 120(b) IPC as well as Section 66-D and E of Information Technology Act. In this case, as argued by learned APP appellant is habitual and is involved in three other cases of similar in nature. One offence was registered in 2011 against the present appellant and the co-accused. The co-accused Vanrajbhai was already released on bail by this Court in Criminal Appeal no. 2259 of 2019 on 24th December 2019. That similar role is played by the present appellant and therefore, benefit of parity is required to be given to the present appellant considering his participation in the offence. 9. The Hon'ble Apex Court in 2015 Law Suit (SC) 899, prayer for cancellation of bail was sought on the foundation of any kind of supervening circumstances or breach of any condition imposed by the High Court. It was held that taking into consideration, if the Court has failed to take into consideration the relevant material factors, it would make order absolutely perverse and totally indefensible. Considering the facts of the case, judgment relied upon by the respondent no. 2 would not applicable to the fact of the present case as no serious role was played by the appellant as alleged by the prosecution. 10. Considering the facts of the case, judgment relied upon by the respondent no. 2 would not applicable to the fact of the present case as no serious role was played by the appellant as alleged by the prosecution. 10. Considering the facts of the present case and submissions made by the learned advocates for the parties as well as learned APP for the State, this Court is of the opinion that the discretion is required to be exercised in favour of the appellant by releasing him on bail. 11. In the result, the present appeal is allowed. The impugned order dated 1st February 2020 passed in Criminal Misc. Application No. 10 of 2020 by the learned Additional Sessions Judge and Special Judge (Atrocity), Botad is hereby quashed and set aside and prayer made in Para-9 (B) is granted. The appellant is ordered to be released on regular bail in connection with FIR being CR No. I-34/2019 registered with Ranpur Police Station, Botad (Rural) for the offence punishable under Sections 302, 394, 504, 506(2), 427, 143, 147, 148, 149 and 120(B) of the Indian Penal Code, 1860 and under Section 135 of the Gujarat Police Act r.w. Sections 3(1)(R)(5) and 3 (2)(5A) of the Scheduled Caste and Schedule Tribe (Atrocity) Act on his executing personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall: (a) not take undue advantage of liberty or misuse liberty. (b) not act in a manner injurious to the interest of the prosecution. (c) surrender passport, if any, to the lower Court within a week. (d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned. (e) furnish the present address of their residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court. (f) not enter into in the Taluka Ranpur for a period of six months. 12. The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 13. 12. The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 13. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 14. At the trial, the Trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the appellant on bail. If any breach of conditions is made by the appellant, the bail granted by this Court would be cancelled. 15. The appeal is allowed in the aforesaid terms. Direct service permitted.