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2025 DIGILAW 152 (GUJ)

Vikrambhai Hamirbhai Virda v. State of Gujarat

2025-02-24

HASMUKH D.SUTHAR

body2025
ORDER : Though served, respondent No.2 has chosen not to appear before this Court. [1.0] ADMIT. Learned APP waives service of notice of Rule on behalf of respondent No.1 – State of Gujarat. [2.0] Present appeal under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “Atrocity Act”) challenging the order dated 11.10.2024 passed by the learned 2 nd Additional Sessions Judge, at Keshod in Criminal Misc. Application No.387 of 2024 whereby the learned Judge rejected the application filed by the present appellant under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (For short “BNSS”) seeking anticipatory bail in connection with FIR being C.R. No.11203030240683 of 2024 registered with Keshod Police Station, District Junagadh for the offences punishable under Sections 64(2)(m and 351(3) of the Bharatiya Nyaya Sanhita, 2023 (For short “BNS”) and sections 3(1)(w), 3(1)(r) and 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act. [3.0] Learned advocate for the appellant submitted that the appellant has been falsely involved in the offence. The appellant as well as victim both are major. The allegation is that under the pretext of getting issued the certificate, present applicant took undue advantage and called the victim at guest house and then pointing the knife forced the victim to develop sexual relations with the applicant and out of such consensual relationship, time and again the applicant and victim visited the guest house but as the raid was conducted, applicant and victim were found in the guest house and news item was published and hence, to save the skin, the victim has lodged the complaint belatedly after 7 days of the incident without explaining the delay. Further, the appellant is protected by way of interim relief since October, 2024 and has not misused such relief. Further, appellant is not having any past antecedent. As nothing is required to be recovered or discovered, no custodial interrogation is required. Therefore, looking to the role of the appellant and nature of the allegations, the appellant is required to be granted anticipatory bail by imposing suitable terms and conditions. [4.0] Per contra, learned APP appearing for the respondent – State has opposed the present appeal on the ground that offence is serious in nature. Nonetheless, conduct of present appellant also deserves consideration. [4.0] Per contra, learned APP appearing for the respondent – State has opposed the present appeal on the ground that offence is serious in nature. Nonetheless, conduct of present appellant also deserves consideration. When the victim was going to police station to get record her statement and substantiate the allegations levelled against the appellant, the appellant chased her and threatened her not to depose against the appellant and therefore also, if the appellant is granted bail then the possibility of tampering with the evidence cannot be ruled out. Further, there is bar under Section 18 of the Atrocity Act and therefore also, the present offence being serious one, he has requested to dismiss the present appeal. [5.0] Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. [6.0] Perusing the FIR it appears that under the pretext of getting issued the certificate, present appellant has taken undue advantage and called the victim at guest house and then pointing knife has developed sexual relations with the victim under fear of causing death of her minor daughter. In this regard the FIR is filed belatedly after 7 days for the offence dated 21.09.2024. In this regard the FIR is filed belatedly after 7 days for the offence dated 21.09.2024. Prior to that, time and again the appellant and victim had visited the same guest house and even entry in the register of the guest house is also made with the mobile number of the wife of appellant. Considering the aforesaid fact, it appears that there was consensual relationship between the appellant and the victim. [6.1] Further, there is no evidence collected which would suggest that the appellant has insulted or humiliated the victim or hurled abusive language in any public view. Even considering the decision of the Hon’ble Supreme Court in the case of Hitesh Verma vs. State of Uttarakhan reported in (2020) 10 SCC 710 as well as in the case of Shajan Skaria vs. State of Kerala reported in 2024 SCC OnLine (SC) 2249, there is no bar under Section 18 of the Atrocity Act on anticipatory bail unless prima facie offence is made out. Further, considering the nature of allegations and in view of the law laid down by the Hon’ble Apex Court in the case of Prathvi Raj Chauhan vs. Union of India reported in (2020) 4 SCC 727 , as the allegation is prima facie not made out and as the appellant is ready and willing to join the investigation and even otherwise the appellant is protected since October, 2024, present appeal deserves consideration. [7.0] I have also considered the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 , I am inclined to allow the present appeal. [8.0] Hence, the present appeal is allowed. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 , I am inclined to allow the present appeal. [8.0] Hence, the present appeal is allowed. The appellant is ordered to be released on anticipatory bail in the event of his arrest/appearance in connection with FIR being C.R. No.11203030240683 of 2024 registered with Keshod Police Station, District Junagadh on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the appellant shall; (a) shall cooperate with the investigation and make herself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 01/03/2025 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant; (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 ofÏcer; (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 ofÏcer 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 Court and if having passport shall deposit the same before the Trial Court within a week; (g) an order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigative agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail; (h) It is open to the police or the investigating agency to move the learned trial Court for a direction under Section 483(3) of the BNSS to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.- [9.0] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. [10.0] Appeal is allowed accordingly. Direct service is permitted.