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2020 DIGILAW 969 (GUJ)

Shanabhai Shalyabhai Rathva v. State of Gujarat

2020-12-17

B.N.KARIA

body2020
ORDER : 1. The appellants have filed Criminal Misc. Application No. 482 of 2020 before the Court of learned 2nd Additional Sessions Judge, Chhotaudepur u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellants on anticipatory bail on account of offence being registered vide C.R. No.11184002200851 of 2020 with Chhotaudepur Police Station for the offence punishable u/s. 323, 330, 504, 337, 506(2), 166 and 114 of Indian Penal Code and Sections 3(1) (c), 3(1)(e) and 3(2)(v) of the of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned Additional Sessions Judge, Chhotaudepur rejected the said application on 19.08.2020. 2. Feeling aggrieved by the said order, the appellants preferred present appeal u/s 14A of the Atrocities Act. 3. Heard learned advocate for the appellants, learned advocate for the respondent no.2 and learned APP for the respondent-State. 4. Learned advocate for the appellants has submitted that the appellants are innocent persons and have not committed any alleged offence and applicants are not connected in any manner whatsoever with the alleged commission of offence. 5. That, nowhere mentioned by the complainant that present appellants have insulted or intimidated with an intention to humiliate in a place within public place. That, the basis ingredients of the offence are missing in the complaint and no offence under the Atrocity Act has been committed by the present appellants. That, specific role of the present appellants was not disclosed in the complaint. That, present appellants are unnecessarily dragged into the present offence. Hence, it was requested by learned advocate for the appellants to allow present application. 6. From the other side, learned APP for the respondent State has strongly opposed the prayer made by the appellants and submitted that there is a strong prima facie case against the present appellants involving in the impugned offence. That respondent no.2 was forcibly compelled to seat in the police station and was brutally beaten with stick by the accused no.1. That he was supported by the accused no.2 and slept was given to the complainant. That certain words were used by the accused no.3 in respect of caste of the complainant. That all other persons were also there while committing the offence and complainant was taken into police station. That complainant was confined illegally in the police station for more than 24 hours. That certain words were used by the accused no.3 in respect of caste of the complainant. That all other persons were also there while committing the offence and complainant was taken into police station. That complainant was confined illegally in the police station for more than 24 hours. That all the accused have committed by illegally confined the complainant in the police station and abetting to each other. That prima facie offence is clearly made out by the prosecution against the present appellants, and therefore, prayer made by the appellants cannot be allowed. 7. Hence, learned APP for the State has requested to dismiss the present appeal. 8. 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 appellants in the offence. There are no specific allegations made by the complainant against the present appellants 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) & u/s. 8 of the Atrocity Act. 9. 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. 10. (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. 10. In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme Court Cases 531, it was held that according to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellants-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. 11. Having considered the facts of the case, police papers and submissions made by learned advocate for the appellants as well as learned APP for the respondent-State, it appears that however, notice was duly served to the respondent no.2 and this Court was pleased to pass an order on 02.11.2020, on a request being made by learned APP that she would inquire from respondent no.2 of his presence or engage any advocate to decide present appeal, this matter was adjourned. Again on 05.11.2020, on a request being made by learned APP that though notice was served to respondent no.2, he was not present before the Court and concerned Investigating Officer was informed to intimate respondent no.2 for contesting this appeal, it was declared that no response was received by her, and therefore, learned APP, again, requested to adjourn the matter. Thereafter, today, i.e. on 17.12.2020 also, nobody remained present for and on behalf of the respondent no.2 to contest this appeal. 12. From the papers produced on record, it appears that complaint was lodged by respondent no.2 on 20.07.2020 vide C.R. No.11184002200851 of 2020 with Chhotaudepur Police Station for the offence punishable u/s. 323, 330, 504, 337, 506(2), 166 and 114 of Indian Penal Code and Sections 3(1) (c), 3(1)(e) and 3(2)(v) of the Atrocities Act. It also appears that before lodging impugned complaint by the respondent no.2, accused no.1 had also lodged a complaint on 16.07.2020 against the respondent no.2 complainant and one Shri Chhaganbhai Vishyabhai Rathva for violation of the lockdown norms as well as obstructing the public servant from doing their duties. It also appears that before lodging impugned complaint by the respondent no.2, accused no.1 had also lodged a complaint on 16.07.2020 against the respondent no.2 complainant and one Shri Chhaganbhai Vishyabhai Rathva for violation of the lockdown norms as well as obstructing the public servant from doing their duties. As per the allegations made in the complaint, he himself and his companion created ruckus in the area while they were driving and they had obstructed accused no.1 and other LRD officials on the road and hence, they were required to be detained. The companion of the complainant fled from the spot but the complainant was caught and taken to the police station on 16.07.2020 by the accused no.1 and the said FIR was filed on the behest of accused no.1. Learned JMFC was informed as to quarantine of the complainant by the accused no.3 on 16.07.2020. It also appears that as per the directions of the Ho'ble Apex Court as well as this Court, corona test reports are necessary and therefore, directions were followed by the accused persons. The test of respondent no.2 was conducted and report was available on 18.07.2020 and thereafter, they were produced before the learned JMFC on 18.07.2020, wherein bail was granted to the first informant. 13. When he was produced before the learned JMFC through video conferencing, aspect of ill-treatment was inquired but he did not make any complaint of any injury or any illtreatment as argued by learned advocate for the appellants. The accused no.3 was the Investigating Officer of the said FIR filed against the complainant. It also appears that accused nos.1 and 2 themselves belong to scheduled tribe. A quashing petition was also preferred under Section 482 of the Code of Criminal Procedure, 1973 by accused no.13 i.e. Criminal Misc. Application No.10707 of 2020 under Section 482 of the Cr.P.C., wherein rule was issued by this Court and interim protection was granted in favour of accused nos.1and 2 qua the provisions of Atrocity City Act. A quashing petition was also preferred under Section 482 of the Code of Criminal Procedure, 1973 by accused no.13 i.e. Criminal Misc. Application No.10707 of 2020 under Section 482 of the Cr.P.C., wherein rule was issued by this Court and interim protection was granted in favour of accused nos.1and 2 qua the provisions of Atrocity City Act. It appears that impugned FIR filed on 20.07.2020 is the counterblast of the FIR dated 16.07.2020 filed by the accused no.1 against respondent no.2, wherein accused no.3 was the Investigating Officer of the said offfence and other accused nos.1 and 2 are belonging to Scheduled Castes and hence, provisions of Atrocities Act would be invoked against them in any manner as the provisions of Section 3(1) and 3(2) can be invoked only against person who is not belonging to Scheduled Castes and Scheduled Tribes. It also appears that there are no allegations against the accused No.3 to justify the charges of Atrocities Act as levelled in the FIR. In the complaint, it is not alleged about use of caste based slurs against the appellants and the act of pulling the moustache is also alleged against the accused No.1 which will not justify of invoking of any provisions of Atrocities Act. This Court is of the impression that complainant has lodged a complaint with a purpose to pressurize the accused as the complaint was lodged by him. There is no allegation of criminal intimidation as to the life of the complainant. The basic ingredients of provisions of Atrocities Act are not tenable against the present appellants. Considering the peculiar facts of the case and there is a delay of 4 days in lodging the complaint without proof of medical certificate to justify the allegation of physical torture, this Court is of the considered view that prayer made by the appellants requires consideration. 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 appellants. Therefore, considering the decision rendered in the aforesaid citations, present appeal deserves consideration. 14. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 19.08.2020 passed in Criminal Misc. Application No. 482 of 2020 by the Court of learned 2nd Additional Sessions Judge, Chhotaudepur is hereby quashed and set aside. Therefore, considering the decision rendered in the aforesaid citations, present appeal deserves consideration. 14. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 19.08.2020 passed in Criminal Misc. Application No. 482 of 2020 by the Court of learned 2nd Additional Sessions Judge, Chhotaudepur is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs. 10,000/- each with surety of like amount on the following conditions that the appellants:- (a) shall cooperate with the investigation and make themselves available for interrogation whenever required; (b) shall remain present at concerned Police Station on 24.12.2020 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; 15. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellants. The appellants 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. 16. 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. 16. 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 appellants, 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. 17. At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail. 18. Notice stands discharged. Direct service is permitted. 19. Registry is directed to send a copy of this order to the concerned Police Station as well as learned Sessions Court concerned through fax or email forthwith.