Gujarat High Court
Vardhabhai Joitabhai Patel vs State Of Gujarat on 18 January, 2022
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/1989/2021 ORDER DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1989 of 2021
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VARDHABHAI JOITABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH WITH MR N P CHAUDHARY(3980) for the Appellant(s)
No. 1,2,3
MR ANKIT Y BACHANI(5424) for the Opponent(s)/Respondent(s) No. 2
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 18/01/2022
ORAL ORDER
1. Present appellants filed Criminal Misc. Application No. 728 of 2021 before the Court of learned Sessions Judge, Deesa 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.11195018211079 of 2021 with Dhanera Police Station, Banaskantha for the offence punishable u/s. 323, 294(b), 506(2), 328 and 114 of Indian Penal Code and Section 3(1)(r), 3(1)(s), 3(2)(va), 3(1)(a) and 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned Sessions Judge, Deesa rejected the said application on 07.12.2021.
2. Feeling aggrieved by the said order, appellants have preferred present criminal appeal under Section 14 of the Atrocities Act. Page 1 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022
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3. Heard learned advocate for the appellants, learned APP for the respondent-State and learned advocate for the respondent no.2.
4. It is submitted by learned advocate for the appellants that the appellants are innocent persons and have no nexus with the present crime and no any alleged offence is made out when the complainant himself came in the field of the appellants. It is further submitted that the field of the appellants and complainant is adjacent land and both fields are on same boundary since long and there is no intention to insult by caste to the complainant. It is further submitted that no poison was found in given treatment of the complainant and and now the complainant has been discharged from the hospital and all medical report are normal and chemical is not identified in the present offence. It is further submitted that they are not likely to run away in any case. Hence, it was requested by learned advocate for the appellants to allow this appeal by quashing the impugned dated 07.12.2021 passed in Criminal Misc. Application No. 728 of 2021 by learned Sessions Judge, Deesa and release the appellants on bail in the case of their arrest in connection with the offence registered against them as prayed for.
5. From the other side, learned APP appearing for the Page 2 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022 R/CR.A/1989/2021 ORDER DATED: 18/01/2022 respondent-State as well as learned advocate for the respondent no.2-complainant have strongly objected the submissions made by learned advocate for the appellants and submitted that from the complaint itself, involvement of the present appellants is clearly made out by the prosecution. It is further submitted that the names of the appellants were clearly shown in the complaint registered against them by the respondent no.2 and their participation. It is further submitted that the prosecution has rightly applied Section 328 of the IPC as the appellants administers for causing the complainant by poison or intoxicating drug with intent to cause hurt the complainant or to commit or to facilitate the commission of an offence as alleged by the prosecution. It is further submitted that the provisions of the Atrocities Act are clearly applied in the present case considering the facts of the present case as the complainant was intentionally intimidated and humiliated by the present appellants. It is further submitted that investigation is under progress and therefore, prayer made by the present appellants cannot be allowed by this Court. Hence, it was requested by learned APP for the respondent-State as well as learned advocate for the respondent no.2 to dismiss this appeal.
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6. 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. 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(g),3(p),3(r),3(s)(z)(c)& u/s. 8 of the Atrocity Act.
7. 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 Page 4 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022 R/CR.A/1989/2021 ORDER DATED: 18/01/2022 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.
8. 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.
9. Having heard learned advocates for the respective parties as well as learned APP for the respondent-State, it appears that initially, the offence was registered under Sections 323, 294(b), 506(2) and 114 of the Indian Penal Code as well as under Section 3(1)(r), 3(1)
(s) and 3(2)(va) of the Atrocities Act. The complaint was lodged on 13.11.2021 by the respondent no.2 alleging that there was some Page 5 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022 R/CR.A/1989/2021 ORDER DATED: 18/01/2022 dispute while the appellants entered in the field of the complainant for repairing of the pipeline. Some hot discussions were made between the parties. Vajabhai Joitabhai Patel had suddenly annoyed and started to give kick and fists blows to the complainant. Nephew of the complainant tried to save him, at that time, Sahadevbhai Ishwarbhai Patel and Dahyabhai Patel caught him while Bababhai Arjanbhai Patel tried to forcefully drink some kind of liquid from the bottle lying in his hands. The complainant shouted and after hearing the shouting of the complainant, brother - Dashrathbhai came there, at that time, all the four accused persons made abusive language and insulted the complainant and threatened to kill them if the complainant would enter in the field. Thereafter, the nephew of the complainant fallen down from the field and he was shifted to Government Hospital at Dhanera and then he was shifted to Deesa Government Hospital and then Palanpur Civil Hospital. It appears from the observations made by the Trial Court that Section 328 of the IPC was added by the prosecution later on as well as Sections 3(1)(a) and 3(1)(5) of the Atrocities Act. Medical Certificate issued by the Medical Officer, Dhanera was produced on record, wherein it was nowhere stated that what kind of chemical was found from the Page 6 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022 R/CR.A/1989/2021 ORDER DATED: 18/01/2022 body as well as face of the nephew of the complainant. Another certificate issued by Banas Medical College was also produced, wherein also no ingredients of poison were found. It appears from the record that after registering the complaint, police has submitted his report on 19.11.2021 to add Section 328 of the IPC as well as Sections 3(1)(a) and 3(2)(5) of the Atrocities Act. It is nowhere stated in the complaint by the respondent no.2 that intentionally he was insulted or intimidated with intent to humiliate him being a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Indisputably, the alleged incident has taken place in a private field of the complainant. This Court is doubtful of applying Sections 3(1)(r) and 3(1)(s) of the Atrocities Act in the present case.
10. 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 Page 7 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022 R/CR.A/1989/2021 ORDER DATED: 18/01/2022 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.
11. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 07.12.2021 passed in Criminal Misc. Application No. 728 of 2021 by learned Sessions Judge, Deesa 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 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;
(c) 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;Page 8 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022
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(d) 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;
(e) 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
(f) 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;
(g) shall not enter in the village where the complainant resides for a period of three months;
(h) shall remain present at concerned Police Station on 25.01.2022 between 11.00 a.m. and 2.00 p.m.;
12. 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.
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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 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.
14. 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.
15. Observations made by this Court would not come in the way of the Trial Court.
16. 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.
Direct Service is permitted.
(B.N. KARIA, J) rakesh/ Page 10 of 10 Downloaded on : Thu Jan 20 21:13:53 IST 2022