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2020 DIGILAW 647 (GUJ)

Ashwin Jivrambhai Patel v. State of Gujarat

2020-07-28

GITA GOPI

body2020
ORDER : 1. At the outset, it would be pertinent to note that the present appeal is a successive appeal under section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act”) since the appellant herein had earlier preferred an appeal being Criminal Appeal No.96 of 2020 before this Court, which came to be withdrawn qua the appellant after extensive hearing, vide order dated 07.02.2020. A detailed discussion regarding the same shall be made in the latter part of this order. 2. This successive appeal has been preferred under section 14A of the Atrocities Act for bail in connection with the first information report being C.R. No.I-124 of 2019 registered with Bavla Police Station, Ahmedabad (Rural) for offences punishable under sections 307, 504 and 114 of IPC and sections 3(1)(r)(s), 3(2)(v) and 3(2)(va) of the Atrocities Act. 3. The facts in a nutshell are as under; On 25.12.2019, at around 0430 hrs., the respondent No.2 herein, Shivabhai Dahyabhai Solanki, received a telephonic call from one Ketanbhai, who is a Driver serving at Bavla Government Hospital, informing him that his nephew, Muktak Ramanbhai Solanki, was injured and that they have brought him to Bavla Government Hospital for treatment. On hearing the same, the complainant and others proceeded to the Hospital. 3.1 It is the case of the appellant that on inquiring about the history of the incident, the complainant was informed by his nephew that while he along with Mahir Mahmood Vora and one other person had gone to a “pan-masala” shop situated near B.R. Company in Kerala G.I.D.C. Area, the appellant herein, his son – Smiral Ashwinkumar Patel, Fataji Thakor and Vinubhai Bharwad came there and allegedly entered into an altercation with the complainant. The said four persons allegedly hurled abuses at him by his caste and during that process, the appellant allegedly inflicted a wooden log blow on the head of the nephew of the complainant. The son of the appellant inflicted blows with belt on the back of the original complainant during which time, the other two persons held the complainant by his back and questioned him as to what they were doing at the place during night hours. In response thereto, the nephew of the complainant replied that he was from Village : Rupal and that he was a person belonging to the lower caste. In response thereto, the nephew of the complainant replied that he was from Village : Rupal and that he was a person belonging to the lower caste. Thereafter, all the four accused persons began to abuse him by his caste and questioned him as to why he had come there with other persons. The complainant's nephew informed him that as he was beaten up with wooden log and belt, Mahir Mahmood Vora and other persons ran away from the place. The complainant, thereafter, took his injured nephew to Sola Civil Hospital, where the injured was administered primary treatment and thereafter, he was shifted to Civil Hospital, Ahmedabad, where he was admitted as an indoor patient and was operated upon. Hence, the impugned complaint was registered against the appellant and other accused persons. 3.2 The appellant preferred an application seeking anticipatory bail before the Sessions Court concerned, which came to be rejected on 10.01.2020. As stated herein above, the appellant thereafter, preferred an appeal in Criminal Appeal No.96 of 2020 before this Court seeking anticipatory bail, which came to be disposed of as withdrawn, vide order dated 07.02.2020. By way of the present appeal, the appellant has prayed for a similar relief as was sought for in Criminal Appeal No.96 of 2020. 4. Mr. I.H. Syed, learned Senior Advocate appearing with Mr. S.M. Munshaw, learned advocate for the appellant, submitted that a first information report was filed by original accused No.3 against the injured nephew of the original complainant and as a counter-blast, the impugned complaint has been filed. It was submitted that statements in the charge-sheet portray that the third accused (who was not injured or who did not apply for any bail since his identity was not declared) happened to be the son of the complainant in the impugned complaint. Hence, two accused named in the first information report preferred by accused No.3 happened to be related to the complainant, which indicates a complete counter-blast scenario. 4.1 Learned Senior Advocate further submitted that the appellant has already settled the dispute with the complainant and his injured nephew, which has also been acknowledged by the Sessions Court concerned while entertaining the bail applications. Hence, the settlement between the parties could be considered as a change of circumstance and on that basis, the appellant could be granted the benefit of pre-arrest bail. 4.2 Learned Senior Advocate Mr. Hence, the settlement between the parties could be considered as a change of circumstance and on that basis, the appellant could be granted the benefit of pre-arrest bail. 4.2 Learned Senior Advocate Mr. Syed further submitted that the statements of the witnesses does not reveal that the victim was verbally abused by his caste. None of the witnesses support the averments made in the impugned complaint. The history given by the victim before the three Medical Officers reveal that the appellant and his son had played an important role in saving the life of the victim. The statement of witness – Mahir Mehmoodbhai Vora has changed the complexion of the case and thus, the Court may exercise discretion in favour of the appellant. 4.3 Reliance was placed on the judgment of the Apex Court in the case of Prathvi Raj Chauhan v. Union of India and others rendered in Writ Petition (C) No.1015 of 2018 decided on 10.02.2020 to submit that if the complaint does not make out a prima facie case for applicability of the provisions of the Atrocities Act, the bar created by sections 18 and 18A(i) of the Atrocities Act shall not apply. It was further held therein that in exceptional cases, the power under section 482 of Cr.P.C. could be exercised for quashing a complaint to prevent misuse of the provisions on settled parameters. It was emphasized that while relying upon the said judgment, the coordinate Bench of this Court has entertained an appeal filed under section 14A of the Atrocities Act being Criminal Appeal No.596 of 2020 decided on 06.07.2020. It was, accordingly, urged that discretion may be exercised in favour of the appellant. 5. Mr. Pranav Trivedi, learned Additional Public Prosecutor, vehemently opposed the application and submitted that this is a successive appeal seeking anticipatory bail, which is not maintainable in the eyes of law. It was submitted that the earlier bail application in Criminal Appeal No.96 of 2020 had been disposed of as withdrawn qua the appellant herein after arguing the matter on merits extensively. Moreover, the said appeal had been preferred after the filing of charge-sheet. It was submitted that the earlier bail application in Criminal Appeal No.96 of 2020 had been disposed of as withdrawn qua the appellant herein after arguing the matter on merits extensively. Moreover, the said appeal had been preferred after the filing of charge-sheet. It was urged that while disposing of Criminal Appeal No.96 of 2020 vide order dated 07.02.2020, this Court had perused the material against the applicant and had, thereafter, permitted the appellant to withdraw the appeal qua the appellant herein and had entertained the appeal qua the other two accused persons. Hence, this being a successive bail application, may not be entertained. 5.1 It was further submitted that a settlement of the dispute could not be considered as a change in the circumstance for reconsideration of an appeal under section 14A of the Atrocities Act. Reliance was placed on the decision of the Apex Court in the case of The State of Madhya Pradesh v. Laxmi Narayan rendered in Criminal Appeal No.349 of 2019 to submit that no such settlement could be accepted when the allegations made in the complaint include the offence under section 307 IPC apart from other offences. Referring to the observations made by the trial Court in the impugned order, it was submitted that the son of the complainant had taken the victim to the Hospital and that it was he who had given the history before the Doctor concerned. Thus, there is no change in the circumstance which would entitle the appellant to seek pre-arrest bail. Hence, this appeal, being a successive bail application, may not be entertained. 5.2 Learned Additional Public Prosecutor while referring to the order dated 06.07.2020 passed by this Court in Criminal Appeal No.596 of 2020 submitted that the relief of pre-arrest bail granted to the accused therein is on an entirely different footing and that in the judgment rendered by the Apex Court in Writ Petition (C) No.1015 of 2018, it has been specifically observed that the powers to grant pre-arrest bail has to be exercised sparingly and in cases where prima facie, no offence is made out. 5.3 Mr. 5.3 Mr. Trivedi, learned Additional Public Prosecutor, drew attention of the Court to the statements of Jagannath Laxmiprasad Prajapati, Dipakkumar Ramprakash Jageshwar and Manubhai Becharbhai Thakor to submit that these three individuals are eye-witness to the incident in question and that according to the statements of these witnesses, the injured had fallen down in a drainage pit and thereafter, he was brought to B.R. Company compound where the appellant and his son had arrived. Thereafter, the injured was tied to a tree and the appellant herein inflicted 8-10 stick blows on the person of the victim. While referring to the statement of Manu Becharbhai Thakor, it was submitted that the victim was tied to a tree located within the compound of B.R. Company and thereafter, the appellant along with his son inflicted the victim with a wooden log. The panchnama of the place near the drainage pit does not show the presence of any blood stains. It was, accordingly, urged that the statements of these eye-witnesses prove the presence and role played by the appellant and hence, no discretion may be exercised in favour of the appellant herein. 6. Heard learned advocates on both the sides and perused the documents on record. It is a matter of fact that the appellant herein had earlier preferred an anticipatory bail application before this Court in Criminal Appeal No.96 of 2020, which came to be disposed of as withdrawn qua the appellant herein, vide order dated 07.02.2020. The said appeal was filed on behalf of three accused persons, including the appellant herein. A perusal of the said order dated 07.02.2020 reveals that the same has been withdrawn qua the appellant herein after extensive arguments while it was considered qua the other two accused persons. Having filed an appeal under the Atrocities Act seeking the relief of pre-arrest bail, which was later on withdrawn after elaborate hearing, it is now not open to the appellant herein to file a fresh application in the form of the present appeal seeking similar relief as it would be a successive bail plea in the eyes of law. 7. The appellant has attempted to show some proposed settlement between the parties as a change of circumstance as a ground for consideration of this appeal. 7. The appellant has attempted to show some proposed settlement between the parties as a change of circumstance as a ground for consideration of this appeal. However, in the considered opinion of this Court, such settlement could not be treated as a change in the circumstance resulting into consideration of the successive bail appeal. The appellant is alleged to have committed the offence punishable under section 307 IPC with other offences. Considering the facts of the case and the principle laid down by the Apex Court in the case of State of Madhya Pradesh v. Laxmi Narayan (supra), a complaint wherein the ingredients of section 307 IPC are prevalent could not be quashed as the offence is non-compoundable and is considered to be a crime against the society. Hence, on both these counts, viz. the present appeal being a successive bail plea and in the absence of any material on record to show any change in the circumstance warranting interference from this Court, the appeal deserves to be dismissed. 8. In my opinion, the statements of the three witnesses as also the panchnama, prima facie, show the involvement and the role played by the appellant in the alleged incident. Hence, this case would not fit within the criteria where no prima facie offence can be said to have been made out from the impugned complaint granting the benefit of pre-arrest bail to the accused. 9. For the foregoing reasons, the appeal is dismissed. Interim relief granted earlier stands vacated.