Gujarat High Court
Dilipsinh Mahendrasinh Zala vs State Of Gujarat on 17 October, 2023
NEUTRAL CITATION
R/CR.A/2147/2023 ORDER DATED: 17/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 2147 of 2023
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DILIPSINH MAHENDRASINH ZALA
Versus
STATE OF GUJARAT
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Appearance:
ADITYA A GUPTA(7875) for the Appellant(s) No. 1
DHRUVIL G MERCHANT(9004) for the Opponent(s)/Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 17/10/2023
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
2. This is an appeal by the appellant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR being C.R. No.11205032231000 of 2023 registered before Mundra Police Station, Kachchh West Bhuj for the offence under Sections 323, 294(b), 143 and 147 of the Indian Penal Code read with Sections 3(1(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence. It is submitted that appellant is falsely enroped in the offence. The complaint is filed with ulterior motive because of Page 1 of 8 Downloaded on : Thu Oct 19 20:39:57 IST 2023 NEUTRAL CITATION R/CR.A/2147/2023 ORDER DATED: 17/10/2023 undefined political rivalry. As per the complaint, the incident took place at 11.40 p.m. and at that time, itself whatever the reason to remain present at the office of the accused. Further it is stated that the present appellant has not played any role. It is further submitted that appellant is having no past criminal antecedents. Even no independent witnesses are cited. Merely no nearer and dearer are cited as a witness, in their presence, the offence being registered. It is further submitted that offence is made out under Sections 323, 294(b) of IPC, which is not serious in nature. So far as allegations qua Atrocity Act are concerned, no offence is made out and for that, he has relied on the decision of the Madras High Court rendered in case of Manimeglai and Ors. Vs. State of Madras reported in 2016 SCC Online Mad 9896 and argued that no offence has taken place on the public view and even as per the law laid down by the Hon'ble Madras High Court two offences must be took place in the presence of independent witnesses like a stranger and not the interested persons. It is submitted that no any independent witnesses are cited. Hence no offence is made out. It is submitted that nothing is required to be recovered and discovered from the accused. With a view to pressurize him, the present appellant is falsely roped in the offence. Learned advocate appearing on behalf of the appellant would submit that considering the nature of offence, the appellant may be enlarged on anticipatory bail by imposing suitable conditions.
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4. Per contra, learned APP appearing for the respondent- State and learned advocate appearing for the original- complainant have opposed this appeal looking to the nature and gravity of the offence.
5. Learned APP submitted that prima facie, offence was clearly made out against the present appellant. It is stated that 3 witnesses sustained injury and they also taken the treatment in the hospital. The incident took place with the son of complainant and complainant reached at the office, at that time, derogatory language was used and he was beaten. One Govindbhai was also intervened, he has also sustained the injury. Considering the aforesaid fact, incident took place and investigation is at preliminary stage and during the course of investigation, it is found that statement of injured persons are also recorded. Considering the aforesaid fact, prima facie, offence is made out. She has requested to dismiss the present application as there is no provision under Section 438 of Cr.P.C. of such offence and offence is made out. Therefore, no prayer may be granted by this Court for enlarging him on anticipatory bail. Ultimately, learned APP for the State has requested to dismiss the present appeal.
6. Learned advocate appearing for the complainant has adopted the same arguments canvassed by the learned APP and stated that this is not a case where the jurisdiction under Section 438 of Cr.P.C. can be exercised. Considering the bar under Section 18 of the Atrocity Act, offence is clearly made out and the complainant and his son both are not only beaten but also Page 3 of 8 Downloaded on : Thu Oct 19 20:39:57 IST 2023 NEUTRAL CITATION R/CR.A/2147/2023 ORDER DATED: 17/10/2023 undefined derogatory language is used and offence in respect of their caste is also proved. Hence, prima facie, offence is made out and he has requested to dismiss the present appeal.
7. Having heard the learned advocates for the respective parties, this Court has considered the rival submissions made by learned counsel for both the sides and considered the material placed on record. 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. Though at the stage of granting bail execution and appreciation of evidence is not permissible. Hence, custodial interrogation is required.
8. The criteria to grant anticipatory bail and regular bail has been laid down by the Apex Court in various decisions. While criminal administration of justice disturbed, arrest is a part of investigation. After the arrest of the accused when substantial part of the investigation including remand gets over, then the Court has to exercise jurisdiction considering the evidence collected during investigation. It is needless to say that Section 438 of the Code is pre-arrest bail as there is a part of Page 4 of 8 Downloaded on : Thu Oct 19 20:39:57 IST 2023 NEUTRAL CITATION R/CR.A/2147/2023 ORDER DATED: 17/10/2023 undefined investigation and importance of the arrest is time and again discussed by the Hon'ble Apex Court. When the involvement of the accused is prima facie revealed and if allegation is not levelled that to defame him/them or to tarnish his/their image, the Court has to exercise jurisdiction, but to seek anticipatory bail is not an extraordinary jurisdiction and absolute right of the accused.
9. This Court has taken into consideration the arguments canvassed by the learned advocate for the respective parties. At the outset, it is worth to mention that present offence is under the Atrocity Act.
Going through the complaint as well as investigation papers, prima facie, it appears that offence is made out in the complaint as well as statement of the three witnesses, who are injured and stated about the injury and corroborated the incident that they have taken treatment in the hospital. Thus, use of the derogatory language at the public place is prima facie proved and the offence took place at the office of the BJP, it is in public view. Considering the fact that reason is also proved in the public gathering and incident took place.
Considering the fact that learned advocate for the appellant has relied upon the decision of Madras High Court in case of Manimeglai (supra) is concerned in the present case, investigation is at preliminary stage and statement of the witnesses has yet to be recorded. If during the investigation, statements are recorded and after appreciation of evidence, it is found that no independent witness is cited and incident took Page 5 of 8 Downloaded on : Thu Oct 19 20:39:57 IST 2023 NEUTRAL CITATION R/CR.A/2147/2023 ORDER DATED: 17/10/2023 undefined place, then it is on different footing. At the time of deciding the bail application, the Court has to consider prima facie involvement of the accused and as to whether offence is made out or not. Considering the fact that investigation is at preliminary stage and State Authority is after recording the evidence when in the appeal, when accused persons were acquitted after the full fledged trial. In the bail matter while exercise the jurisdiction under Section 438 of the Cr.P.C. , the Court has specifically considered the bar under Section 18 of the Atrocity Act and in this required to be made on the decision of the Apex Court in the case of State of Madhya Pradesh Vs. Ram Kishna Balothia, reported in 1995 (3) SCC 221, to enlarge on anticipatory bail, the accused can claim as of right.
10. The Supreme Court had also occasion to deal with this aspect in the case of Vilas Pandurang Pawar and another v. State of Maharashtra and others, reported in AIR 2012 SC 3316, wherein the Supreme Court held, in paragraph 8, as follows:
"8. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence Under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail."
11. The Hon'ble Apex Court in the case of Jai Prakash Singh Vs State of Bihar & Anr. reported in 2012 4 SCC 379, has been pleased to hold as under:-
Page 6 of 8 Downloaded on : Thu Oct 19 20:39:57 IST 2023NEUTRAL CITATION R/CR.A/2147/2023 ORDER DATED: 17/10/2023 undefined "Parameters for grant of anticipatory bail in a serious offences are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
12. In the case of Siddharam Satlingappa Mhetre vs State Of Maharashtra, reported in (2011) 1 SCC 694, the Hon'ble Court held that life and personal liberty are the most prized possessions of an individual but not at the cost of larger interest of society and public. This is not a case, wherein accused is falsely enroped in the offence with a view to tarnish his image. Considering the fact that the custodial interrogation is required. Further, the Hon'ble Apex Court in the case of Jai Prakash Singh Vs State of Bihar & Anr. reported in 2012 4 SCC 379, has been pleased to hold as under:-
"Parameters for grant of anticipatory bail in a serious offences are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
13. In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the appellant, but also all other suspect/s is therefore imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the appellant.
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14. Considering the question of public health and adverse effect and impact in the society, in the larger interest of justice, the Court has to struck down the balance between the personal liberty and larger interest of the society. In view of above, if the present appellant is protected with this order, this Court is of the considered view that if the present accused is equipped with protective order, it would obviously affect the case of the prosecution and adversely the qualitative investigation. This is not a fit case, wherein accused is falsely enraged in the offence and it appears that there is no frivolity, with a view to tarnish his image. Considering the fact that the custodial interrogation is required.
15. For the foregoing reasons and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the Code in favour of the appellant. Accordingly, present application does not deserve any consideration and is hereby dismissed. Rule is discharged.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 8 of 8 Downloaded on : Thu Oct 19 20:39:57 IST 2023