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Gujarat High Court · body

2021 DIGILAW 125 (GUJ)

Neha Dwarkesh Patel v. State of Gujarat

2021-02-11

RAJENDRA M.SAREEN

body2021
ORDER : 1. Present petition has been preferred by the petitioner - original accused No.7 under section 438 of the Code of Criminal Procedure in connection with the F.I.R. bearing C. R. No. 11214008202061 of 2020 registered at Bardoli Police Station, District: Surat Rural, for the offence punishable U/Ss.364-A, 323, 342, 504, 506(2), 427 and 114 of Indian Penal Code (“Code” for short) dated 27.08.2020 lodged by the complainant - Mahavirbhai Harakhchand Jain. 2. As per the FIR, the complainant is giving honorary services in Animal Welfare Board of India of Navsari District as Animal Welfare Officer since 12 years and his duty is to protect cows and buffaloes from cruelty and to stab them from taking to slaughter house. He also works as Member in All India Animal Welfare Board of India of Navsari District. The complainant has also stated in the complaint that on 26.08.2020 at about 10.00 a.m., he was present in his shop and at that time, he received a phone call from one Rajeshkumar Hastimal Shah, resident of Vapi working as Officer of All India Animal Welfare Board of India of Gujarat State and he was informed that they have to go before the police authority of Tapi in respect of transportation of cows and buffaloes and he was called near Chikhli Bridge. The complainant reached there and Rajeshbhai and other 3 members of the institute namely, Vishal Ahir @ Vallabhbhai Ramjibhai, Bhadresh Nagindas Modi and Shivam Pande were present and they all proceeded towards Vyara in Scorpio Car of Rajeshbhai. One Tempo No.GJ-21-W-9570 was passing from Palsana to Vyara, in which the buffaloes were being transported in a cruel manner and Tapi District Control was informed and the said vehicle was detained by police and thereafter they all reached to Vyara and visited DSP of Tapi District and on the basis of the information received by them the police seized total 6 vehicles. The complainant used to move to stop such kind of activity and he was present near petrol pump at village Jesingpura on 27.08.2020 at about 3.00 a.m. and upon receiving the information, one pick up car No.GJ-19-U-3950 was passing in a full speed from Gadh to Vyara and the complainant chased the said vehicle and when he tried to stop the vehicle, driver of the pick up car dashed the vehicle with the car of the complainant for which, one Rajeshbhai Shah has given complaint at Vyara Police Station. It is further stated in the FIR that in pursuance of the complaint, he was present at Vyara Police Station and he received information that another tempo is found with the animals and he went there by Government vehicle and the petitioner was dropped at Manekpur Check post at 2.30 p.m. and at that time one Black Scorpio Car came in which one Bharatbhai Bharwad along with Jay Patel @ Nagraj, Sanjaybhai Goga and Jagdish Bharwad were present. Thereafter one Swift Desire Car No. GJ-19-AF-1544 also came there wherein 4 persons had come and all these 8 persons of two cars started giving him kick and fist blows and dragged him into Scorpio Car and he was put into the middle seat. Jay Patel @ Nagraj was driving the vehicle and Bharatbhai Bharwad was in the front seat. Along with the complainant, Sanjaybhai Goga and Jagdish Bharwad sat. Jay Patel @ Nagraj has put mobile phone in the video recording mode. The complainant inquired that why he is forcefully taken by them, he was again beaten on different parts of the body. Bharatbhai Bharwad and Jagdish Bharwad had inflicted blows by wooden log. Jay Patel @ Nagraj has also given fist blow and when complainant asked about the said incident, they replied that why the complainant is involved in detaining the vehicles carrying animals and they further stated that the vehicle detained yesterday was of Bharwad community and they suffered loss of Rs.10 Lakh and they demanded Rs.2 Lakh and again he was beaten when the complainant stated that everything is done at the instance of Rajesh Shah. Thereafter, the complainant was asked to seat in Swift Desire Car with the accused, after sometime, he was asked him to seat in Hundai I20 Car. Thereafter, the complainant was asked to seat in Swift Desire Car with the accused, after sometime, he was asked him to seat in Hundai I20 Car. Near Kabilpor, Jay Patel @ Nagraj received one phone call and as the phone was connected with blue-tooth the complainant heard the conversation on speaker. The complainant came to know that one Nehaben was speaking and at that time Jay Patel @ Nagraj informed her that this is not Rajesh Shah but Mahavir and further informed that they have recorded conversation in video and had beaten the complainant and they were going towards Navsari and Mahavir will be dropped at Navsari but he will file complaint and further informed her to call Ashishbhai and make an arrangement to obtain anticipatory bail from the High Court and Nehaben replied not to worry and informed not to kill Mahavir but to break his hands and legs and she assured that she will take care and will see that the anticipatory bail is obtained and thereafter at about 4.00 p.m., near Kabilpor GIDC he was allowed to go from the car and the accused said that in future not to come in Surat and Tapi Districts else he will be killed. The complainant has further stated in the FIR that he knows Nehaben who is President of Agni Veer Sanstha and thereafter he was taken to Police Station and he filed the complaint. 3. The petitioner preferred an application for anticipatory bail being Criminal Misc. Application No.345 of 2020, which was rejected on 14.09.2020 by the learned Second Additional Sessions Judge, Bardoli at Surat. Hence, the petitioner has preferred the present application for anticipatory bail. 4. The petitioner has filed the written submissions raising the following contentions : [a]. The petitioner is aged about 42 years. She is a reputed person of the society and is permanent resident of Vadodara and if she is arrested and sent into jail then her image would be tarnished and she undertakes to co-operate with the investigating agency as and when necessary. [b] In the present case the custodial interrogation of the petitioner is not at all necessary and most importantly she is not having any past criminal record and she undertakes to cooperate with the police agency and is ready to abide any terms and conditions which may be imposed by this Hon’ble Court. [b] In the present case the custodial interrogation of the petitioner is not at all necessary and most importantly she is not having any past criminal record and she undertakes to cooperate with the police agency and is ready to abide any terms and conditions which may be imposed by this Hon’ble Court. [c] The petitioner is a lady accused and she craves to refer and rely upon the provision of section 437(ii) of Code of Criminal procedure which gives powers to the Ld. Magistrate to release certain category of person by the Ld. Magistrate even if the offence punishable with death for imprisonment of life or even if earlier convicted of the offence and the said list also includes a woman. The petitioner craves to refer and rely upon the decision rendered in the case of Tanvir Pankaj Divetiya Vs. State of Gujarat reported in XVII GLT 362 and the other orders recently passed by this Hon’ble Court of releasing the lady accused on anticipatory bail mainly on the ground that the said accused is a lady accused. The copy of the some of the orders are placed on record. [d] The petitioner lady is innocent and she is falsely implicated in the present offence. She has not committed the offence as alleged in the FIR and she has not played any direct or indirect role in the alleged offence because, prima facie, the FIR is filed with ulterior and oblique motive. [e] The petitioner is running an NGO and is an active participant in Jeevdaya Program and is an honorary Animal Welfare officer of Animal Welfare Board of India and because of her laudable social activities, has received several appreciations and awards from the different institutes. [f] The petitioner is an animal rights activist and she has saved more than 10000 injured /endangered animals and countless birds in last 10 years of Jeev Seva she has also assisted police in rescuing thousands of innocent’ animals which were illegally transported for slaughter purpose and she has also filed several FIRs against criminals indulging in illegal slaughter / trafficking of animals. Besides she has also worked for upliftment of poor, downtrodden, tribals, scheduled caste, untouchable and Women. Besides she has also worked for upliftment of poor, downtrodden, tribals, scheduled caste, untouchable and Women. [g] The petitioner is targeted in the present FIR for her noble work and after the filing of the said FIR, false claims are made tarnishing the image of the petitioner by some local Gujarati News Paper by leveling allegations against the petitioner without any proof. [h] The petitioner states that taking the allegation made in the FIR, it is clear that the same do not inspire any confidence and the FIR is nothing but cock bull story. [i] The petitioner lady was neither present at the time of the incident nor is part of conspiracy and she did not aware of any such type of the incident. At the time of the incident the petitioner was treating a blind cow 100 kilometers away from the said place and she has never talked with anyone for causing any injury to the complainant or anyone. [j] The petitioner is a responsible and law abiding citizen and she has worked closely with agencies like police, CID, NDRF, Forest Department etc. and the petitioner actually does not know what has happened on the date of the incident and she thought that some scuffle has taken place and when she was asked for the help she advised them to involve lawyer and to follow procedure of law. [k] The petitioner has no connection or any concern with the complainant and she had not seen the complainant and prima facie the ingredients of the offence alleged in the FIR is not made out against the petitioner. [l] The co-accused Bharatbhai Shivdas Vaishnav, Rasik Vankaria, Roshan Bahadur Sumara and Munno Ajubhai Mir are released by the Trial Court. The other accused Jayesh Ranchhod Chotiya is released by this Hon’ble Court in Cr. M. A. No.14228 of 2020 by order dated 06.10.2020. Therefore, custodial investigation of the petitioner does not require. [m] The one of the co-accused namely Sanjaybhai Gogabhai Bharwad was not even present at the time of incident and he is also involved by the complainant by stating that he was present at the time of the incident and he has played active role. Therefore, custodial investigation of the petitioner does not require. [m] The one of the co-accused namely Sanjaybhai Gogabhai Bharwad was not even present at the time of incident and he is also involved by the complainant by stating that he was present at the time of the incident and he has played active role. The said accused has filed quashing petition before this Hon’ble Court i.e. Cr.M.A. No.14731 of 2020 and this Hon’ble Court is pleased to protect the said accused by directing not to take coercive steps against the said accused by order dated 26.10.2020. [n] The petitioner suffering from diabetes and therefore she is prone to COVID infection more than normal person and keeping her in custody may lead to health emergencies. [o] The allegation made by the complainant are to be tested on touch stone of its veracity because he has gone to the extent of involving the accused who was not even present at that time and prima facie this Hon’ble Court has suspected his case and protected the co-accused against any coercive action in the said FIR and therefore there is all likelihood false involvement of the present petitioner at the insistence of one Mr. Rajesh Shah who has internal rivalry with the present petitioner. [p] The petitioner is a Management professional from Australia and belongs to very well off family, with thriving family business and an unparalleled track recording social service including providing pre-education for over a dozen a children and therefore the allegation of asking ransom money of Rs.2 Lakh is prima facie bogus as she and her family spent more than Rs.2 Lakh every month in the Welfare activities. [q] The allegation of the complainant against the petitioner of directing other accused to break his bone also fall flat because the complainant has all bones intact and he has not sustained any serious injury. [r] The petitioner has done selfless work during COVID pandemic earlier this year. [q] The allegation of the complainant against the petitioner of directing other accused to break his bone also fall flat because the complainant has all bones intact and he has not sustained any serious injury. [r] The petitioner has done selfless work during COVID pandemic earlier this year. She helped migrant labours to cross Gujarat and to reach their native places and provided them with food and helped thousand with pre-ration in lockdown in March and April and her phenomenal work has been well documented in the news stories which shows that how the petitioner has fed more than 1200 dogs and 600 cows during lockdown and considering this services she deserves to be granted anticipatory bail to serve people in the serious condition of the COVID situation. [s] The father of the petitioner has also been summoned by Bardoli Police Station for interrogation in respect of the present offence and thus the family members are also being harassed by the police. The copy of the 160 summon issued to the father of the petitioner is annexed herewith and marked as Annexure-D. [t] It is a specific case of the petitioner that the complaint is filed at the insistence of Rajesh Hastimal Shah and this person has been slapped by the Hon’ble Supreme Court with the fine of Rs.25 Lakh for unnecessarily harassing the export of buffalo meat. Thus it can be seen that the complainant is nothing but in the tool of hand of Rajesh Hastimal Shah and because of internal rivalry of Rajesh Hastimal Shah with the present petitioner she is deliberately involved in the said offence at the insistence of the present complainant. [u] The petitioner has come to learn that the charge sheet has been filed against other accused persons before 2 to 3 days and the petitioner is shown in column no.2 of the charge sheet and now there is no reason of her apprehension of applying for warrant against her by the police. [v] Prima facie the offences alleged in the FIR are not made out against the petitioner. 5. The original complainant has filed the written submissions raising the following contentions: [i]. The original complainant has been arrayed, pursuant to the orders passed by the Hon’ble Court, dated 1.10.2020. [ii]. [v] Prima facie the offences alleged in the FIR are not made out against the petitioner. 5. The original complainant has filed the written submissions raising the following contentions: [i]. The original complainant has been arrayed, pursuant to the orders passed by the Hon’ble Court, dated 1.10.2020. [ii]. At the outset, the submissions are filed for the limited purposes of placing relevant details, since the petitioner has attempted to make allegations, suggesting at the behest of Shri Rajeshbhai Patel. [iii]. At the further outset, the petitioner's anticipatory bail application, is not justified in making allegations bereft of any details or particulars, more particularly works involved and attributed a pious in nature to save slaughtering of animals and there should be no element to taint, by any illegal or unauthorized overacts. [iv]. That, it would not be out of place to mention that Shri Rajeshbhai Patel, who is aged about 60 years, has dedicated his life and has continuously been involved in benevolent acts, despite facing severity from overacting concerns. [v]. The brief of Shri Rajeshbhai Patel along with the available details of the complaints (2007 to 2020), to prevent the slaughtering of animals, where he has been instrumental are placed on record at ANNEXURE R/1. [vi]. The competent bail court, while considering the anticipatory bail application, have considered in brief: (a) the factual matrix (b) sequester of events (c) investigation reports placed by the competent investigating agency, which suggests the petitioner not only involved, but also played important role and had even after the incidence facilitated the other accused by providing mobile details and other apparatus to aid and assist during and after the offence. (d) The role of the petitioner accused no. 7 has also been considered being directly and there being no false implication and also the position of the petitioner, who has not operated and unavailable and further strong reservations are made by the competent authorities of the likelihood to have serious effects and aspirations on the investigation, evidence and perseverance. [vii]. That, while asserting lack a bona-fide of the complainant in filing false complaint and implicating one Sanjaybhai Gogabhai Bharwad (who has preferred CR.MA 14731 of 2020), it would have been obligatory to have mentioned that the complainant on his own volition in his statement of 4.09.2020 had clarified that the real name of Sanjaybhai Gogabhai Bharwad was Jayeshbhai Satiya. [vii]. That, while asserting lack a bona-fide of the complainant in filing false complaint and implicating one Sanjaybhai Gogabhai Bharwad (who has preferred CR.MA 14731 of 2020), it would have been obligatory to have mentioned that the complainant on his own volition in his statement of 4.09.2020 had clarified that the real name of Sanjaybhai Gogabhai Bharwad was Jayeshbhai Satiya. Copy of the said further statement of 4.09.2020 is placed on record at ANNEXURE R/2. That, on behalf of the complainant, there are no wrong motives and the captioned statement was given on 4.09.2020, which is much before filing of CR.M.A. No.14731 of 2020, where the petition in fact was presented on 30.09.2020. That, the intention and bona fide of the complainant, would be self-evident. [viii]. The manner in nature of the offence, was clearly engineered by the conspiracy of the accused holding a key role, in order to break the bones and fall flat, so as to facilitate such slaughtering of animals, wherein the complainant was misconstrued as Shri Rajeshbhai Patel and had received severe injuries, which is clear and explicit, as mentioned in the complaint. [ix]. It is rather very surprising to note that on one hand the petitioner evading and is not found available, however on the other hand has real-time updates of the proceedings, from the accused. The said issue is material and would go to the root of the issue of the petitioner being involved and having conspired with the offence in question. [x]. It is submitted that even otherwise none of the accused were enlarged on pre-arrest bail application and there are also chargesheet which have been filed against other accused, who were available and cooperated with the investigation. It is submitted that the role and position of the petitioner is significant, more particularly of being aware of all activities of the other associated accused and there is all likelihood and chances of hampering with the investigation. [xi]. That, even otherwise the consideration of pre-arrest/ anticipatory bail application, the petitioner cannot seek parity or equate with other accused. That, even otherwise when there is prima facie case and material on record, which is clinching and explicit, the case of the petitioner would not fall within the Touchstone parameters for consideration of an pre-arrest bail application. [xii]. Therefore, it is requested not to exercise the discretion in favour of the petitioner accused. 6. Mr. That, even otherwise when there is prima facie case and material on record, which is clinching and explicit, the case of the petitioner would not fall within the Touchstone parameters for consideration of an pre-arrest bail application. [xii]. Therefore, it is requested not to exercise the discretion in favour of the petitioner accused. 6. Mr. J.K. Shah, learned APP has resisted this petition and submitted that considering the gravity of the offence, discretion may not be exercised in favour of the petitioner. 7. Heard the learned advocates for the respective parties. Considered the documents placed on record as well as the written submissions submitted by the respective parties. 8. At the outset, it is required to be noted that from the material placed on record by the petitioner, it appears that the petitioner is running an NGO and is an active participant in Jeevdaya Program and animal rights activist and is an honorary Animal Welfare Officer of Animal Welfare Board of India and copies of various documents showing the achievement and social work are placed on record by the petitioner. The petitioner has worked closely with agencies like police, CID, NDRF, Forest Department etc. The petitioner assisted police in rescuing thousands of innocent animals illegally transported for slaughter purpose and she has also filed several FIRs against criminals indulging in illegal slaughter / trafficking of animals. 9. Considering the allegations made in the FIR itself, it is clear that even as per the case of the prosecution in the FIR, the petitioner was not present at the time of the incident. Even there is nothing to show that the petitioner has played any role in the alleged conspiracy. There is nothing to show that the petitioner has talked with anyone for causing any injury to the complainant or anyone. 10. Even the allegation against the petitioner of directing co-accused to break his born also seems to be false and concocted because no bone of the complainant is broken and all his bones are intact and no serious injuries are caused to the complainant. Even if it is assumed that if these words were spoken by the petitioner, then also in fact, no harm has been was caused to the complainant, which prima facie shows absence of any role of the petitioner in the incident in question. Even if it is assumed that if these words were spoken by the petitioner, then also in fact, no harm has been was caused to the complainant, which prima facie shows absence of any role of the petitioner in the incident in question. Further, the allegation of the complainant against the petitioner for asking ransom money of Rs.2 Lakh prima facie seems to be bogus and concocted, considering the overall facts and circumstances of the case and material placed on record. The allegations made in the FIR against the petitioner do not inspire any confidence. 11. The petitioner accused is a lady and is permanent resident of Vadodara and hence she would be available for investigation and trial. In the facts and circumstances of the case, the custodial interrogation of the petitioner is not at all necessary. The petitioner is not having any past criminal record. 12. Considering the overall facts and circumstances of the case and the allegations made against the petitioner, it appears that the allegations made in the FIR against the petitioner do not inspire any confidence and the petitioner is targeted in the present offence her noble work with oblique and ulterior motive. 13. The petitioner is a lady accused and even considering the provision of section 437(ii) of Code of Criminal Procedure which gives powers to the Magistrate to release certain category of person by the Magistrate even if the offence punishable with death for imprisonment of life or even if earlier convicted of the offence. Hence, mainly on the ground that the petitioner is a lady accused, discretion is required to be exercised in her favour. 14. The co-accused Bharatbhai Shivdas Vaishnav, Rasik Vankaria, Roshan Bahadur Sumara and Munno Ajubhai Mir are released by the trial court. One more co-accused Jayesh Ranchhod Chotiya is also released by this Court in Criminal Misc. Application No.14228 of 2020 by order dated 06.10.2020. Hence also discretion is required to be exercised in favour of the petitioner who is a lady accused. 15. It is also pertinent to note that one of the co-accused namely Sanjaybhai Gogabhai Bharwad was not even present at the time of incident and he is also involved by the complainant by stating that he was present at the time of the incident and he has played active role. The said co-accused filed quashing petition before this Court being Criminal Misc. The said co-accused filed quashing petition before this Court being Criminal Misc. Application No.14731 of 2020 and this Court has protected the said co-accused by directing not to take coercive steps against the said accused vide order dated 26.10.2020. This fact also speaks volume of things and the possibility of false implication of the petitioner cannot be ruled out. 16. Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the petitioner. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., as reported at (1980) 2 SCC 665 . 17. In the result, the present petition is allowed by directing that in the event of petitioner herein being arrested pursuant to FIR registered as C.R No.11214008202061 of 2020 before Bardoli Police Station, District : Surat Rural, the petitioner shall be released on bail on furnishing a personal bond of Rs. 17. In the result, the present petition is allowed by directing that in the event of petitioner herein being arrested pursuant to FIR registered as C.R No.11214008202061 of 2020 before Bardoli Police Station, District : Surat Rural, the petitioner shall be released on bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of like amount on the following conditions that the petitioner shall : (a) cooperate with the investigation and make available for interrogation whenever required; (b) remain present at concerned Police Station on 18.02.2021 between 11.00 a.m. and 2.00 p.m.; (c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer; (d) 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) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (f) not leave India without the permission of the 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; 18. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the petitioner. The petitioner 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. 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. 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 petitioner, 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. 19. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on anticipatory bail. 20. Rule is made absolute. Present petition is disposed of accordingly. Registry is directed to communicate this order by FAX or E-mail to the concerned Authority.