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2022 DIGILAW 36 (GUJ)

Shivbhadrasinh v. State of Gujarat

2022-01-06

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. The appellant preferred one Criminal Misc. Application No. 323 of 2021 before the Court of learned 9th Additional Sessions Judge and Special Judge (Atrocity), Bhachau-Kachchh u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered vide C.R. No. 11993004210151 of 2021 with Bhachau Police Station, Kachchh for the offence punishable u/s. 324, 325, 307, 395, 397, 294B, 427, 452, 506(2) and 188 of the Indian Penal Code and u/s. 3 (1)(r), 3(1)(s), 3(2)(v) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), Section 25 (1) (B-A) of the Arms Act as well as u/s. 135 of Gujarat Police Act wherein, the learned 9th Additional Sessions Judge and Special Judge (Atrocity), Bhachau-Kachchh rejected the said application on 27.08.2021. 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 impugned order is ex facie illegal, unjust, improper and contrary to the facts and circumstances of the present case. That learned court below erred by not considering the correct fact where even by going through FIR itself the intention to falsely implicate the present appellant can be seen whereby exaggerated and vague allegations are levelled and the appellant has not acted in any such manner as alleged in the FIR. That FIR is lodged after the delay of three days, which indicates that the appellant is being wrongly roped into alleged offence. That in the medical certificate dated 28.05.2021, no names were disclosed in fact it was stated that assault was made by some unknown persons by unknown equipment. It is further submitted from the charge-sheet papers, the prosecution has failed whereby there is a complete absence of any concrete evidence in support of the allegations levelled in the FIR, whereby even by relying upon the entire charge-sheet the provisions as alleged against the appellant are not attracted and appellant not acted in any such manner which would attract the penal provisions as alleged. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order 27.08.2021 passed by learned 9th Additional Sessions Judge and Special Judge (Atrocity), Bhachau-Kachchh in Criminal Misc. Application No. 323 of 2021 and release the appellant on bail. 5. Learned Advocate appearing for the respondent No. 2 and learned APP appearing for the respondent-State have strongly objected the submissions made by the learned advocate for the appellant and submitted that prima facie involvement of the present appellant is established from the investigating papers. That name of the present appellant was clearly shown in the complaint itself as number of persons arrived at the place of the offence in a four different vehicles with deadly weapons and assaulted on the complainant and his brother. It is further submitted that serious injury was caused by the present appellant alongwith other co-accused and at present also complainant is also suffering from various disablement and his treatment is going on. That serious offence is committed by the present appellant and it is not necessary for the prosecution in such a number of accused persons that what particular role was played by the accused persons. That involvement of the present appellant is clearly made out by the prosecution. It is further submitted that two offences under the Prohibition Act are registered against the present appellant. Hence, no prayer can be allowed by this Court. Therefore, it is requested by learned advocate for the respondent No. 2 and learned APP for the respondent-State to dismiss the appeal. 6. Having heard learned advocates for the respective parties as well as learned APP for the respondent-State, it appears that on 30.05.2021, this complaint was registered against total 18 accused persons. From serial No. 1 to 17, names of the accused were described in the complaint while in column No. 18, it was stated that 7 to 8 unknown persons. As per the allegations made in the complaint, four accused persons came with deadly weapons in different four wheelers at the residence of the complainant and assaulted him as well as his brother. Serious injury was caused to his brother namely Kanabhai, and therefore, initially he was shifted to Civil Hospital, Bhachau and thereafter, Adipur, and thereafter, Rajkot. Condition of his brother was very serious as per the allegation. Serious injury was caused to his brother namely Kanabhai, and therefore, initially he was shifted to Civil Hospital, Bhachau and thereafter, Adipur, and thereafter, Rajkot. Condition of his brother was very serious as per the allegation. So far as the other allegations, the property of the complainant such as three mobile phones were broken, four wheeler vehicle bearing registration No. GJ-12-DG-0160 was damaged and some articles were stolen, there was robbery of cash amount of Rs. 1 Lakh, one gold chain and three mobile phones etc. From the contents of the FIR, there is no specific role alleged by the complainant that who assaulted on a complainant who caused any injury to the complainant or his brother or by what weapon any injury was caused to the complainant or his brother. If we refer the charge-sheet papers, in a worthy registered with the Bhachau Police Station, vide No. 53 of 2021 on 28.05.2021, no name of the present appellant was disclosed. In a Station Diary Entry No. 02 of 2021 on 28.05.2021, name of the present appellant was not disclosed. In a history given before the doctor, it was stated that assault was made by some unknown persons at Juni Meti Chinai at home at 10:00 p.m. on 27.05.2021 by unknown equipment. Here also name of the present appellant was not disclosed by the injured Dipak Velabhai Badhiya. No weapon is recovered from the custody of the present appellant. Investigation is over and charge-sheet is filed as admitted by learned APP for the respondent-State. 7. Considering the offence described in the complaint and charge-sheet papers, involvement of the present applicant and seriousness of the offence, admittedly the injured persons are discharged from the hospital. 8. Considering the facts of the case, mere two cases under the Prohibition Act are registered against the present appellant cannot be a ground to refuse the bail as prayed by the present applicant. Hence, this Court is of the view that present appeal deserves consideration. 9. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 27.08.2021 passed by learned 9th Additional Sessions Judge and Special Judge (Atrocity), Bhachau-Kachchh in Criminal Misc. Application No. 323 of 2021 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 9. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 27.08.2021 passed by learned 9th Additional Sessions Judge and Special Judge (Atrocity), Bhachau-Kachchh in Criminal Misc. Application No. 323 of 2021 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave India without prior permission of the concerned Trial Court; [e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; 10. The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged. 12. This order be communicated to the applicant through Jail Authorities by the registry as well as learned Sessions Court concerned.