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2022 DIGILAW 323 (GUJ)

Virendrasinh v. State of Gujarat

2022-02-22

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. The appellant has filed Criminal Misc. Application No. 505 of 2020 before the Court of learned Special Judge (Atrocity) and 3rd Additional Sessions Judge, Panchmahal at Halol 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.11207076200624 of 2020 registered with Vejalpur Police Station, District Panchmahal for the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(v-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned Special Judge (Atrocity) and 3rd Additional Sessions Judge, Panchmahal at Halol rejected the said application on 09.11.2020. 2. Feeling aggrieved by the said order, the appellant preferred present appeal u/s. 14A of the Atrocities Act. 3. Heard learned advocate for the appellant, learned advocate for the respondent no. 2 and learned APP for the respondent-State. 4. Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence and appellant is not connected in any manner whatsoever with the alleged commission of offence. That the appellant is an advocate and practicing in District and Taluka Courts of District Panchmahal since long. That, appellant being lawyer has raised certain voices for custodial violence happened in the vary same police station and for that, appellant had applied RTI applications and also sent letters to the various authorities including National Human Rights Commission against the violation of fundamental rights and atrocities caused to one of the person of the same village namely Kuldeepsinh Mohabbatsinh Thakor, in which, there was a lot of pressure from the police department for compromising the matter as many police persons will be put in difficulties as the appellant does not want to compromise the matter and hence, local police has some reservation for the appellant. That, on 03.07.2020 written complaint was given to the police by the brother of the appellant stating that complainant's son and other boys are harassing and chasing his daughter since long and police had asked they will look into the matter but no FIR was registered on that day. That, on 03.07.2020 written complaint was given to the police by the brother of the appellant stating that complainant's son and other boys are harassing and chasing his daughter since long and police had asked they will look into the matter but no FIR was registered on that day. That, on that day some typed material was circulated in the village by the accused (complainant's son and other accused) naming the victim girl's name and administered threats with a vulgar and abusing language. 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 appellant. That, specific role of the present appellant was not disclosed in the complaint. That, present appellant is unnecessarily dragged into the present offence. Hence, it was requested by learned advocate for the appellant to allow present appeal. 5. From the other side, learned APP for the respondent No. 1-State and learned advocate for the respondent no. 2 have strongly opposed the prayer made by the appellant and submitted that prima facie the offence was clearly made out against the present appellant. That Section 18A of the Act clearly bars to grant of anticipatory bail as prayed by the present appellant. That, the appellant is involved in the serious offence and therefore, no leniency view can be taken in favour of the appellant. Ultimately, learned APP for the respondent no. 1-State and learned advocate for the respondent no. 2 have requested to dismiss the present appeal. 6. Having considered the facts of the case, police papers and submissions made by learned advocate for the appellant; learned advocate for the respondent no. 2 as well as learned APP for the respondent No. 1-State, it appears that offence has been registered vide C.R. No.11207076200624 of 2020 with Vejalpur Police Station, District Panchmahal for the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(v-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989. It appears from the record that the appellant is practicing advocate in District Court as well as Taluka Court of District Panchmahal since long. It appears from the record that the appellant is practicing advocate in District Court as well as Taluka Court of District Panchmahal since long. It appears that on 03.07.2020, written complaint was given to the police by the brother of the appellant stating that complainant's son and other boys are harassing and chasing his daughter since long and police had asked they will look into the matter but no FIR was registered on that day and copy thereof has been produced vide Annexure-D in this appeal. 7. It further appears that on the very same day, some typed material was circulated in the village by the accused (complainant's son and other accused) naming the victim girl's name and administered threats with a vulgar and abusive language. It appears that the son of the original complainant namely Mitesh Pravinbhai Chamar was released by the juvenile Court, which was resisted by the present appellant. From the FIR, it appears that general allegations are made and no specific role was is mentioned for the offence of the Atrocities Act. 8. Prima facie, it appears that in connection with the complaint lodged by the appellant's side against the son of the complainant, impugned complaint was given later on i.e., on 3rd November 2020 without making any specific allegations o attract the provisions of the Atrocity Act. 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. 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), 3(g), 3(p), 3(r), 3(s)(z)(c) & u/s. 8 of the Atrocity Act. 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), 3(g), 3(p), 3(r), 3(s)(z)(c) & u/s. 8 of the Atrocity Act. 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. 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 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. 10. As per the contents of the complaint, the alleged discussion or the talk was made between the parties in the house of the complainant and no offence was taken place within the public place or within public premises. 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 appellant. 11. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 09.11.2020 passed in Criminal Misc. Application No. 505 of 2020 by learned Special Judge (Atrocity) and 3rd Additional Sessions Judge, Panchmahal at Halol is hereby quashed and set aside. 11. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 09.11.2020 passed in Criminal Misc. Application No. 505 of 2020 by learned Special Judge (Atrocity) and 3rd Additional Sessions Judge, Panchmahal at Halol 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 2nd March 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 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. 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. 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. 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.