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2022 DIGILAW 476 (GUJ)

Kinjalben Hiteshkumar Thakor v. State Of Gujarat

2022-04-06

B.N.KARIA

body2022
ORDER : 1. Learned advocate appearing for the appellants has produced the report of the Vigilance Cell, Commissioner, Scheduled Tribe Development, Gandhinagar, which is taken on record. As per the report, respondent No.2 herein is not a member of the scheduled caste or scheduled tribe, and therefore, recommended to cancel the Certificate No.ST/96/2005 dated 04.06.2005 in favour of the respondent No.2. 2. Present appellants filed Criminal Misc. Application No. 536 of 2021 before the Court of learned 7th Additional Sessions Judge, Banaskantha-Palanpur 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 I- C.R. No.57 of 2018 with Danta Police Station, Dist- Banaskantha for the offence punishable u/s. 324, 337, 323, 143, 147, 148, 149, 452, 427, 294(b) and 506(2) of Indian Penal Code and Sections 3(1)(r) and 3(2)(Va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned 7th Additional Sessions Judge, Banaskantha-Palanpur rejected the said application on 31.07.2021. 3. Feeling aggrieved by the said order, appellants have preferred present criminal appeal under Section 14 (A) of the Atrocities Act. 4. Heard learned advocate for the appellants, learned advocate appearing for the respondent No.2 and learned APP for the respondent-State. 5. It is submitted by learned advocate for the appellants that present FIR is filed with a view to harass and tarnish the image of the appellants. That no ingredients of any of the alleged offence as stated in the FIR are satisfied and appellants have not uttered any such word to the complainant nor they have inflicted any injury. It is further submitted that according to charges levelled, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or Scheduled Tribe and he was intentionally insulted or intimidated by the accused with an intent to humiliate in any place within public view. That no where in the complaint, it is mentioned that the appellants-accused were not a member of the Scheduled Caste and Scheduled Tribe and they intentionally insulted or humiliated the complainant within public view. That accused No.1-Hiteshkumar @ Bakaji Babuji Thakore is released on regular bail by the learned Sessions Court, Palanpur. In support of his arguments, learned advocate appearing for the appellants has relied upon the judgment reported in 2006 (3) SCC 257 . That accused No.1-Hiteshkumar @ Bakaji Babuji Thakore is released on regular bail by the learned Sessions Court, Palanpur. In support of his arguments, learned advocate appearing for the appellants has relied upon the judgment reported in 2006 (3) SCC 257 . Hence, it was requested by learned advocate appearing for the appellants to quash and set aside the impugned judgment and order dated 31.07.2021 passed in Criminal Misc. Application No. 536 of 2021 before the Court of learned 7th Additional Sessions Judge, Banaskantha-Palanpur and requested to allow present criminal appeal. 6. From the other side, learned advocate appearing for the respondent No.2 as well as learned APP appearing for the respondent-State have strongly objected the submissions made by learned advocate appearing for appellants and submitted that from the complaint itself, prima facie case is established by the prosecution involving the present appellant in committing the offence as alleged in the complaint. That father of the complainant was seriously injured by the accused No.1, and thereafter, all the appellants, with deadly weapons, entered in the house of the complainant and abused/insulted the caste of the complainant with threatening the complainant to commit the murder. That from the papers, it clearly established by the prosecution that appellants are involved in the offence. It is further submitted that caste certificate issued by the Government is still not cancelled by the Government only recommendation made by the committee can not be treated that respondent No.2 is not a member of scheduled caste or scheduled tribe. Ultimately, it is requested by both of them to dismiss the present appeal. 7. 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. 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 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. 8. 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 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. In the case of Anjan Kumar vs. Union of India and Others reported in 2006 (3) SCC Page 257, Hon’ble Supreme Court has observed as under: “In the case of Valsamma Paul v. Cochin University, this Court again examined the entire gamut and came to the conclusion that the condition precedent for acquiring Scheduled Tribes Certificate one must suffer the disabilities- Socially, Economically and Educationally. The facts of that case are important and may be recited in a nutshell. Two posts of Lecturers in Law Department of Cochin University were notified for recruitment, one of which was reserved for Latin Catholics (Backward Class Fishermen). The appellant was a Syrian Catholic (a Forward Class). The facts of that case are important and may be recited in a nutshell. Two posts of Lecturers in Law Department of Cochin University were notified for recruitment, one of which was reserved for Latin Catholics (Backward Class Fishermen). The appellant was a Syrian Catholic (a Forward Class). She married to Latin Catholic (Backward Class Fishermen) and had applied for selection as a reserved candidate. The University selected her on that basis and accordingly appointed her against the reserved post. Her appointment was questioned by another candidate by filing a writ petition praying for a direction to the University to appoint the petitioner in place of the appellant. The learned single Judge allowed the Writ Petition. On appeal being filed before the Division Bench concerning the important question of law a reference was made to the Full Bench. The Full Bench held that though the appellant was married according to the Canon Law, the appellant being a Syrian Catholic by birth (Forward Class), by marriage with the Latin Catholic (Backward Class Fishermen) is not member of that Class nor can she claim the status as a Backward Class by marriage. On an appeal being preferred before this Court against the decision of the Full Bench this Court after referring to various decisions of this Court upheld the Judgment of the Full Bench. This Court held in paragraphs 33 and 34 as under: "33. However, the question is: Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or an other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15 (4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognized by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nations's life by providing them opportunities and facilities. 34. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nations's life by providing them opportunities and facilities. 34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde 1995 Supp (2) SCC 549 and R. Chandevarappa v. State of Karnataka, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/ she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution." 14. In view of the catena of decisions of this Court, the questions raised before us are no more res integra. The condition precedent for granting tribe certificate being that one must suffer disabilities wherefrom one belongs. The offshoots of the wedlock of a tribal woman married to a non-tribal husband - Forward Class (Kayastha in the present case) cannot claim Scheduled Tribe status. The reason being such offshoot was brought up in the atmosphere of Forward Class and he is not subjected to any disability. The offshoots of the wedlock of a tribal woman married to a non-tribal husband - Forward Class (Kayastha in the present case) cannot claim Scheduled Tribe status. The reason being such offshoot was brought up in the atmosphere of Forward Class and he is not subjected to any disability. A person not belonging to the Scheduled Castes or Scheduled Tribes claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake/bogus caste certificate and obtaining appointment/admission from the reserved quota will have far reaching grave consequences. The meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hands of non-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution of India. 11. Having heard learned advocates appearing for the respective parties as well as learned APP appearing for the respondent-State and perusing the record produced before this Court, it appears that as per the case of the complainant, in brief, on 28.10.2018, at around 9.00 p.m., respondent No.2 who is the original complainant was standing near his house. He noticed his father-Rajendrakumar Natubhai Majirana going to a nearby shop, after having his dinner. While his father was on his way, accused No.1-Hiteshkumar @ Bakaji Babuji Thakore, his wife-Shobhaben Hiteshkumar @ Bakaji Babuji Thakore and the accused No.3, who all were standing in the front area of the house of original accused No.1, asked his father to stop and reprimanded him that as he has stood as a witness in the complaint filed by one Prahladbhai Maganbhai Parmar under the Atrocities Act, he should not use the road passing in front of their house for commuting. The accused also hurled abuses at his father. When his father asked the accused persons not to hurl abuses him, they got enraged. At that time, accused Nos.6 and 7, who happens to be the children of original accused Nos.1 and 2 were also present at the place at the relevant time, they pushed down his father and thereafter, began to abuse him physically. On hearing the shouts of his father, the complainant and his brother -Amitkumar Rajendrakumar Majirana rushed to the place of incident in order to rescue him. On hearing the shouts of his father, the complainant and his brother -Amitkumar Rajendrakumar Majirana rushed to the place of incident in order to rescue him. At that time, original accused No.1 inflicted an iron pipe blow on the head of his father, who began to bleed profusely. The complainant and his father took their injured father to home. A few moments later, all the accused persons, who were armed with weapons like sword, axe, stone etc. reached the house of the complainant. They forced to open the door of the house and vandalized it. Thereafter, the accused assaulted the complainant and other members who were present in the house. The accused also hurled abuses at the caste of the complainant and other injured witnesses and threatened them of dire consequences. On intervention of other witnesses, the accused left the house. Thereafter, the injured was taken to Danta Civil Hospital. Thus, the FIR was lodged. 12. From the bare reading of the complaint, it is nowhere alleged that accused persons were not a member of the scheduled caste or scheduled tribe and they intentionally insulted or intimidated with intent to humiliate in any place within public view. It is nowhere stated in the complaint, that appellants having knowledge that the complainant is member of the scheduled caste or scheduled tribe or the property belongs to such member, they have committed any offence specified in the schedule against the complainant. 13. Basic ingredients of the offence under Section 3(1)(r) as well as Section 3(2)(va) of the Act as alleged in the complaint are missing. It further appears that appellants were juvenile at the time of committing the offence and complaint is lodged against them implicating false as accused. It further appears that learned Sessions Judge has not interpreted the Section 18 of the Atrocities Act in a proper manner as it is now settled by the judgment of the Hon’ble Apex Court in case of Dr. Subhash Kashinath Mahajan vs. State of Maharashtra and Anr. reported in 2018 (6) SCC 454 that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie offence is made out. 14. Subhash Kashinath Mahajan vs. State of Maharashtra and Anr. reported in 2018 (6) SCC 454 that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie offence is made out. 14. Considering the allegations made in the complaint by the respondent No.2 and the provisions as applied by the prosecution under the Prevention of Atrocities Act, both the appellants are protected by this Court by order dated 07.09.2021, prayer made by the present appellants requires consideration. 15. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 31.07.2021 passed in Criminal Misc. Application No. 536 of 2021 before the Court of learned 7th Additional Sessions Judge, Banaskantha-Palanpur 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 concerned Police Station on 13.04.2022 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; 16. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellants. 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. 17. 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. 18. 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. Direct service is permitted.