Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 11 (GUJ)

Tushar Anilgiri Goswami v. State of Gujarat

2022-01-04

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. Present appellants filed Criminal Misc. Application No. 5703 of 2020 before the Court of learned 7th Additional Sessions Judge, Fast Track Special Court, Surat. 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. 11210025204739 of 2020 with Limbayat Police Station, Surat for the offence punishable u/s. 452, 323, 294(b), 506(2), 143, 144, 147, 149 and 427 of Indian Penal Code and Section 3(2)(5-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned 7th Additional Sessions Judge, Fast Track Special Court, Surat rejected the said application on 23.11.2020. 2. Feeling aggrieved by the said order, appellants have preferred present criminal appeal under Section 14 of the Atrocities Act. 3. However notice was duly served to the respondent No. 2, he was not remained present either in person or through an advocate to contest this criminal appeal. 4. Heard learned advocate for the appellants and learned APP for the respondent-State. 5. It is submitted by learned advocate for the appellants that son of the complainant has taken away the sister/daughter of the present appellants, and therefore, a criminal complaint of not being able to find them was filed by the complainant and family of the appellants. That normal written conversation was happened in order to know the whereabouts of the sister/daughter of the appellants and as a result in order to save his son from the offence from getting registered against him, this complaint was filed against the present appellants and their father. It is further submitted that in the entire FIR, there are general allegations against the appellants of beating the complainant and other family members with kick and fists blows by issuing a threat. That appellants are falsely implicated in the alleged offence by the complainant. It is further submitted that essential ingredients of the alleged offence are not being satisfied against the appellants. That appellants are the permanent resident of Surat and have immovable property therein and they are not likely to run away in any case. That appellants have no criminal antecedents, and therefore, also they are entitled to claim for bail. It is further submitted that essential ingredients of the alleged offence are not being satisfied against the appellants. That appellants are the permanent resident of Surat and have immovable property therein and they are not likely to run away in any case. That appellants have no criminal antecedents, and therefore, also they are entitled to claim for bail. Hence, it was requested by learned advocate for the appellants to allow this appeal by quashing the impugned dated 23.11.2020 passed in Criminal Misc. Application No. 5703 of 2020 by learned 7th Additional Sessions Judge, Fast Track Special Court, Surat and release the appellants on bail in the case of their arrest in connection with the offence registered against them as prayed for. 6. From the other side, learned APP appearing for the respondent-State has strongly objected the submissions made by learned advocate for the appellants and submitted that prima facie both the appellants are involved in the offence. Referring certain statements recorded by the investigating agency, it is submitted that however the appellants were known that complainant was a member from the Schedule Caste and Schedule Tribes, they intentionally entered in the house of the complainant and damaged the property lying with the house of the complainant. It is further submitted that there are some eye witnesses whose statements are recorded by the investigating agency. That ingredients as alleged by the prosecution are clearly established at this juncture, and therefore, this court may not interfere in the order passed by the trial court. Hence, it was requested by learned APP appearing for the respondent-State to dismiss the criminal appeal. 7. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan v. 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. 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 spoken alleging someone caste would not involve the present appellants 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), 3, 3(p), 3(r), 3(s)(z)(c) & u/s. 8 of the Atrocity Act. 8. In the case of Union of India v. 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 bail. 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. 9. 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 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. 10. Having heard learned advocate for the appellants and learned APP for the respondent-State, it appears that alleged incident was taken place as per the complaint on 22.10.2020 and complaint was filed on 31.10.2020. As per the averments made in the complaint by the respondent No. 2, his son namely Amit eloped with the daughter of the appellant No. 1 and sister of the appellant No. 2 as they were in love affair. The complaint was filed about missing of their daughter before the police by the present appellants and opposite party of missing their daughter/sister. The complaint was filed about missing of their daughter before the police by the present appellants and opposite party of missing their daughter/sister. As per the averments made in the complaint, father of the present appellant No.2 and husband of the appellant No. 1 along with present appellants frequently visited the house of the complainant and started dispute. On 31.10.2020, at about 4:00 p.m. when the complainant was at his home, both the appellants alongwith their father entered in the house and inquired that where is their daughter Neha as she was kidnapped by the son of the complainant. As per the allegations, thereafter, they abused certain language and gave kick and fists to the complainant. Wife and daughter of the complainant saved him. Meanwhile four to six members entered in the house, and therefore, complainant and his family members stopped the lock of a room. The persons remained in the house damaged some property of the complainant as narrated in the complaint. It appears from the complaint that there are no specific allegations made by the complainant-respondent No. 2 against any of the accused person that who has caused any damage to the property of the complainant. The panchnama prepared by the Investigating Agency referred by learned APP, some property of the complainant was damaged. Without any specific allegations made by the complainant, at this juncture, present appellants cannot involved in the offence. 11. If we refer Section 3(5)(A) of the Act, it must be within knowledge of the accused person that such person is a member of Schedule Caste or Schedule Tribe or such property belongs to such member. It is nowhere alleged by the complainant that the accused persons were having knowledge that the complainant was the member of Schedule Caste or Schedule Tribe or such property belongs to such member. In absence of any specific allegations to attract Section 3(5)(A) of the Act, case of the prosecution cannot be believed at this juncture. Considering the schedule prescribed under the Act and the facts of the case, the prayer made by the present appellants requires consideration. 12. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 23.11.2020 passed in Criminal Misc. Application No. 5703 of 2020 by learned 7th Additional Sessions Judge, Fast Track Special Court, Surat is hereby quashed and set aside. 12. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 23.11.2020 passed in Criminal Misc. Application No. 5703 of 2020 by learned 7th Additional Sessions Judge, Fast Track Special Court, Surat is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of their 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 Limbayat Police Station, Surat on 11.01.2022 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 her 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; 13. 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. 14. 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. 14. 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. 15. 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. 16. Notice stands discharged. 17. 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.