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2020 DIGILAW 704 (GUJ)

Shaktisinh Kumarpalsinh Zala v. State of Gujarat

2020-08-21

B.N.KARIA

body2020
ORDER : 1. The appellant has filed Criminal Misc. Application No. 370 of 2020 before the Court of learned 15th Sessions Judge and Special Judge, Atrocity Cases, Vadodara 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-18 of 2018 with Vadodara Taluka Police Station, Vadoara for the offence punishable u/s.120(B), 34, 307, 332, 333, 353, 143, 147, 148, 149, 395, 511, 506(2), 294(A), 427 and 337 of the Indian Penal Code and u/s.3(2)(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. 3 and 7 of the Damage to Public Property Act, wherein, learned 15th Sessions Judge and Special Judge, Atrocity Cases, Vadodara rejected the said application on 18.02.2020. 2. Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14-A of the Atrocity Act. 3. Heard learned advocate for the appellant and learned APP for the respondent-State. However, respondent No.2 was duly served, none was present for and on his behalf to contest this appeal. 4. Learned advocate for the appellant has submitted that the appellant is innocent person and wrongly involved in the present crime in question only on the basis of the statements of the three persons namely (1) Mukesh Ravjibhai Vasava (2) Sharbir @ Rajesh Ahmed Kureshi and (3) Jitendrasinh Padhiyar. It is further submitted that aforesaid three persons are the informant of Vadodara Taluka Police Station and have remained panchas in several cases registered at Vadodara Taluka Police and nearby police station. It is further submitted in the present case, all the injured witnesses are police personnel. It is further submitted that since the applicability of Section 438 of the Cr.P.C. is not permissible under the Atrocity Act and since the appellant has strong apprehension of being manhandled by police due to internal police department grudges. 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. 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. While opposing the prayer made by the appellant, learned APP for the respondent - State has referred the report in detail forwarded by Deputy Superintendent of Police, SC, ST Cell, Vadodara Rural as well as statements of Rajendrasinh Mavsi, Driver police constable; Vijaysinh Mobile in-charge; Ashwinsinh police constable and Gajabhai police constable recorded during the course of investigation and argued that a criminal conspiracy was hatched by the present appellant as he was previously serving as Anarm police constable and presently under suspension. As per the statements of the prosecution witnesses, appellant was seen by them sitting with the co-accused and discussing that police was frequently raiding in village Ganpatpura, and therefore, further co-accused will take action so that police will never into village Ganpatpura for raiding and in case, if police would make any raid then the other co-accused should assault the police. It was further discussed by the present appellant that within two or three days all the villagers of village should assault the police and they should be removed by assaulting so that police would never think over to make any raid in the village. That criminal conspiracy was clearly hatched by the other co-accused inspiring them to commit assault on police. That criminal history is that against present appellant and two different offences under the Prohibition Act as well as under the provisions of Indian Penal Code were registered him in past. That police officer Shri Arvindbhai as well as other police officers were injured in the offence. That provisions of Atrocities Act are also applied by the prosecution. That the Trial Court has committed no error in dismissing the application for anticipatory bail of the present appellant. That, Section 18(A) is clearly barred for accepting anticipatory bail as requested by the present appellant, and 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. 6. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan Vs. Ultimately, learned APP for the State has 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 reported in 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) 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, 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 v. State of Andhra Pradesh and Ors., reported in (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. 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 as per the complaint lodged, incident was taken place on 28-29th March, 2018 when police constable Ashwinbhai was on patroling duty at that time at about 3:00 am, one Shri Rajubhai @ Bhuriyou Mafatbhai Thakor had met and told Ashwinbhai that where's your D-staff and other police personnel with PCR van have gone and further said you all come to village. At about 6.45 pm when the complainant & other police personnels were stopping number of vehicles as Dumad Cross road, at that time one person on his pulsar motorcycle coming from Dumad village was stopped, as on the frond side there was not any number place and on asking his name, it was replied as Jagdishbhai Jinabhai Thakor and on asking documents of vehicle and license, it was refused by the said person. At that time about 50 to 75 villages came together and started beating the police officers. Thereafter, FIR was lodged and investigation was started by the investigating officer and he has recorded statements of several witnesses and effectuated arrest of 21 persons in connection with the crime in question and submitted charge-sheet was filed before the concerned court on 28.05.2020. Thereafter, supplementary charge-sheet was filed against other co-accused on 01.11.2018. In the first charge-sheet, no name of the present appellant was shown and in the supplementary charge-sheet, name of the presenti appellant was disclosed as absconder. It appears from the complaint that, at the place of incident, present appellant was not present at the time of incident nor his name was connected in array of the accused while filing the complaint. After seven days of registering the complaint against co-accused, statements of three witnesses from the police officers were recorded by investigating officer, wherein, name of the present appellant was disclosed averring that the appellant was discussing with the other co-accused and inspiring them to assault the police officers, so that, police would not make any raid in the village. That on the basis of the statements of three witnesses, appellant was involved as a conspirator and abettor in the offence. That on the basis of the statements of three witnesses, appellant was involved as a conspirator and abettor in the offence. It appears that aforesaid three witnesses are the informants of Vadodra Taluka police station and as per the arguments, they have remained panchas in several cases registered with Vadodara Taluka police station and nearby police station. 10. Considering the nature of allegations emerging on record, the question of invoking section 3(2)(5) of the Atrocities Act would not arise as the present appellant was never present at the time of incident and committed alleged offence or he had no any knowledge that complainant was belonging to SC/ST. As per prosecution case, two different offences were registered against the present appellant out of which, one has been registered with Padra Police Station being C.R. No.III-79/2018 under the provisions of Prohibition Act, wherein, he was released on bail by competent Court with certain observations. So far as second offence, which is allegedly registered against the present appellant being C.R. No.I-58 of 2018 with Padra Police Station under the provisions of I.P.C. and the said complaint was quashed by this Court (Coram: Hon'ble Mr. Justice S.H. Vora) in Special Criminal Application No.7921 of 2019 on 26.09.2019. Therefore, considering the decision rendered in the aforesaid matter, facts of the present case, involvement of the appellant, gravity of the offence, present appeal deserves consideration. 11. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 18.02.2020 passed in Criminal Misc. Application No. 370 of 2020 by learned 15th Sessions Judge and Special Judge, Atrocity Cases, Vadodara 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. 370 of 2020 by learned 15th Sessions Judge and Special Judge, Atrocity Cases, Vadodara 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 28.08.2020 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; and (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. 16. Registry shall forward a copy of this order to the concerned police station through fax or e-mail forthwith.