Gujarat High Court
Kishankumar Lalabhai Parmar vs State Of Gujarat on 17 February, 2022
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/1629/2021 ORDER DATED: 17/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1629 of 2021
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KISHANKUMAR LALABHAI PARMAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TEJAS P SATTA(3149) for the Appellant(s) No. 1
NOTICE SERVED BY DS 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 : 17/02/2022
ORAL ORDER
1. Present appellant filed Criminal Misc. Application No. 238 of 2021 before the Court of learned Additional District Judge, Banaskantha at Tharad u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail on account of offence being registered vide C.R. No.11195050211030 of 2021 with Tharad Police Station, Banaskantha for the offence punishable u/s. 306 and 114 of Indian Penal Code and Sections 3(2) (5) and 3(2)(5A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), wherein learned Additional District Judge, Banaskantha at Tharad rejected the said application on 01.09.2021.
2. Feeling aggrieved by the said order, appellant has preferred Page 1 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 present criminal appeal under Section 14 of the Atrocities Act.
3. As per the report of the learned 6 th Additional District Judge, Banaskantha dated 31.01.2022, it appears that writ is duly executed and from the appellant side, affidavit of service is filed by Mr.Mansukhbhai Parmar dated 18.11.2021. As per the report of the Police Inspector, ACB Palanpur dated 08.11.2021, notice is duly served on 15.11.2021. Nobody has appeared to contest this appeal when the matter was called out.
4. Heard learned advocate for the appellant and learned APP for the respondent-State.
5. It is submitted by learned advocate for the appellant that the complainant viz. Jetsibhai Chhaganbhai Rathod has lodged the FIR in the Tharad Police Station on 23.08.2021 that his younger brother viz. Amratbhai Chhaganbhai Rathod (deceased) on 21.08.2021 had called him to inform him regarding his visit to Palanpur for the purpose of an interview of the company. Thereafter, deceased had sent one video on the whatsapp of the complainant in which he talked about him committing suicide. Afterwards, the complainant rushed to the Tharad Police Station to prevent his younger brother from committing suicide, however, the police after some Page 2 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 investigation regarding the same informed the complainant that younger brother has committed suicide in one 'Kalpati Hotel' near Charada Village. Thereafter, the complainant along with other family members went to Kalapi Hotel and they found the deceased hanging on fan and found suicide note as well and subsequently, police has registered criminal FIR against the present appellant with four other co-accused persons. It is further submitted that the the appellant is relative of the deceased person as the appellant has married to the sister of the deceased. The appellant and deceased got married on the same day i.e. on 08.06.2021 at Barvada Village. It is further submitted that root of the incident is that wife of the deceased viz. Payal (original accused no.1) was aged about 15 years at the time of marriage and for that reason, in-laws of the deceased were not ready to send Payal with the deceased till she attains the age of majority i.e. 18 years and the same condition was specified to the deceased and his family members before solemnization of their marriage and they had agreed to. It is further submitted that the deceased was not happy with the fact that his wife will not come to her matrimonial home after her marriage till she attains majority. Deceased started insisting the in-laws to send his wife to his some Page 3 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 and since his in-laws has denied for the same, the deceased started behaving over sensitively and trying to bring his wife to his matrimonial home. This was the reason due to which the deceased has committed suicide. It is further submitted that one suicide note was there, wherein not a single specific allegation is made against the present appellant nor any utter words that would drive the deceased to end his life so that deceased ought to have taken alternative means as opposed to commit suicide. That only allegation made in the suicide note is that the appellant had threatened on call the deceased before one month of the day of the incident and therefore, offence under Section 306 of the IPC cannot be made out as mens rea cannot be assumed in the present case. For driving any person to commit suicide, instigation of the same has to be done in a short span of time of the suicide. In the present case, as per the allegations, appellant had called the deceased and threatened him before a month ago and in no way, that call before a month ago can drive the deceased to commit suicide. Further, in the complaint, there is no allegation to attract any provisions under Sections 3(2)(5) and 3(2)(5A) of the Atrocities Act. Further, co-accused viz. Pravinbhai Parmar is granted anticipatory bail by this Court vide Page 4 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 order dated 26.10.2021 and another co-accused viz. Vishnuji Thakore is granted regular bail by this Court vide order dated 26.10.2021. Hence, it is requested by learned advocate for the appellant to dismiss this appeal.
6. From the other side, learned APP appearing for the respondent-State has strongly objected the submissions made by learned advocate for the appellant and submitted that ingredients as alleged by the prosecution are clearly established at this juncture, and therefore, this Court may not interfere in the order passed by the Trial Court. Hence, it was requested by learned APP appearing for the respondent- State to dismiss the criminal 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 Page 5 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 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.
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 Page 6 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 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. Having heard learned advocate for the appellant and learned APP for the respondent-State, as per the case of the prosecution, the complainant viz. Jetsibhai Chhaganbhai Rathod has lodged the FIR in the Tharad Police Station on 23.08.2021 that his younger brother viz. Amratbhai Chhaganbhai Rathod (deceased) on 21.08.2021 had called him to inform him regarding his visit to Palanpur for the purpose of an interview of the company. Thereafter, deceased had sent one video on the whatsapp of the complainant in which he talked about him committing suicide. Afterwards, the complainant rushed to the Tharad Police Station to prevent his younger brother from committing suicide, however, the police after some investigation regarding the same informed the complainant that younger brother has committed suicide in one 'Kalpati Hotel' near Charada Village. Thereafter, the complainant along with other family members went to Kalapi Hotel and they found the deceased hanging on fan and found suicide note as well and subsequently, police has registered criminal FIR against the present appellant with Page 7 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 four other co-accused persons. It also appears that the the appellant is relative of the deceased person as the appellant has married to the sister of the deceased. The appellant and deceased got married on the same day i.e. on 08.06.2021 at Barvada Village. It appears that root of the incident is that wife of the deceased viz. Payal (original accused no.1) was aged about 15 years at the time of marriage and for that reason, in-laws of the deceased were not ready to send Payal with the deceased till she attains the age of majority i.e. 18 years and the same condition was specified to the deceased and his family members before solemnization of their marriage and they had agreed to. It appears that the deceased was not happy with the fact that his wife will not come to her matrimonial home after her marriage till she attains majority. Deceased started insisting the in-laws to send his wife to his some and since his in-laws has denied for the same, the deceased started behaving over sensitively and trying to bring his wife to his matrimonial home. This was the reason due to which the deceased has committed suicide. It appears that one suicide note was there, wherein not a single specific allegation is made against the present appellant nor any utter words that would drive the deceased to end his life so that deceased ought to have taken alternative means Page 8 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 as opposed to commit suicide. Only allegation made in the suicide note is that the appellant had threatened on call the deceased before one month of the day of the incident and therefore, offence under Section 306 of the IPC cannot be made out as mens rea cannot be assumed in the present case. For driving any person to commit suicide, instigation of the same has to be done in a short span of time of the suicide. In the present case, as per the allegations, appellant had called the deceased and threatened him before a month ago and in no way, that call before a month ago can drive the deceased to commit suicide. Further, it appears that in the complaint, there is no allegation to attract any provisions under Sections 3(2)(5) and 3(2) (5A) of the Atrocities Act. Further, it appears that co-accused viz. Pravinbhai Parmar is granted anticipatory bail by this Court vide order dated 26.10.2021 and another co-accused viz. Vishnuji Thakore is granted regular bail by this Court vide order dated 26.10.2021.
11. 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 Page 9 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 persons were having knowledge that the complainant was the member of Schedule Caste or Schedule Tribe or such property 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 appellant requires consideration.
12. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 01.09.2021 passed in Criminal Misc. Application No.238 of 2021 by learned Additional District Judge, Banaskantha at Tharad 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/- each with surety of like amount on the following conditions that the appellant:-
(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 24.02.2022 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 Page 10 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022 R/CR.A/1629/2021 ORDER DATED: 17/02/2022 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;
13. 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.
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R/CR.A/1629/2021 ORDER DATED: 17/02/2022
14. 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.
15. 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.
16. Notice stands discharged.
17. 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.
(B.N. KARIA, J) rakesh/ Page 12 of 12 Downloaded on : Fri Feb 18 21:27:56 IST 2022