Gujarat High Court
Simaben Meghabhai Bharwad vs State Of Gujarat on 14 October, 2021
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/CR.A/1129/2021 ORDER DATED: 14/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1129 of 2021
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SIMABEN MEGHABHAI BHARWAD
Versus
STATE OF GUJARAT
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Appearance:
MR K I KAZI(5030) for the Appellant(s) No. 1,2,3,4
MR SWAPNIL H CHAUHAN(5959) for the Appellant(s) No. 1,2,3,4
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR(2) for the Opponent(s)/
Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 14/10/2021
ORAL ORDER
1. Heard Mr.Swapnil Chauhan, learned advocate for the appellants.
2. This Criminal Appeal is filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') praying for an order of anticipatory bail in connection with the offence registered at C.R. No.11192060210484 of 2021 for the alleged offence punishable under Sections 143, 504, 506(2) and 114 of of the Indian Penal Code, Sections 3(1)(r) and 3(1)(s) of 'the Act' registered with Viramgam Rural Police Station, District:
Ahmedabad Rural. Abovesaid Sections are mentioned as it is reflected from the copy of FIR at page 18.Page 1 of 5 Downloaded on : Fri Oct 15 05:15:23 IST 2021
R/CR.A/1129/2021 ORDER DATED: 14/10/2021
3. As coming out from the First Information Report (for short, 'FIR'), the first informant lodged a complaint against 6 persons alleging that the accused on 25.06.2021 at about 9.45 p.m. when he was going towards Ramapir Temple along with his wife accused alighted from one white color swift car without any number plate and surrounded both of them and took cudgle with first informant. Thereafter, accused insulted the first informant of his caste and threatened him to enter into a compromise in a complaint filed by his wife against present appellant No.1 or else he would meet with dire consequences. It is further alleged that they abused him like anything and threatened him to involve in false rape case. It is further stated that because of fear of the accused, at the relevant time, he did not give the 'FIR' but again in the next breathe, it is stated that he apprehended beating by them and therefore, he has filed the 'FIR'.
4. Mr. Chauhan, learned advocate for the appellants submitted that for the alleged offence dated 25.06.2021, an 'FIR' has come to be filed on 7.7.2021 nearly about 13 days after the alleged incident invoking provisions of 'the Act' as also Indian Penal Code.
5. It is further submitted that on the date of so called incident mentioned by the first informant, an 'FIR' has come to be filed by accused No.2, Sudhaben Dineshbhai Dhoraliya against the first informant of the present case under Section 354, 354A, 354D, 504, 506(2) of the Indian Penal Code. It is submitted that as such, no such incident has occurred but the day on which the 'FIR' came to be filed against him, he has shown the date of offence in the present case to avoid the liability of offence Page 2 of 5 Downloaded on : Fri Oct 15 05:15:23 IST 2021 R/CR.A/1129/2021 ORDER DATED: 14/10/2021 alleged against him. It is further submitted that there are other complaints invoking provisions of 'the Act' filed by the present first informant against so many persons in the village. It is submitted that invoking the provisions of 'the Act' is nothing but an abuse process of law and therefore, the appellants be enlarged on anticipatory bail.
6. Ms.Jirga Jhaveri, learned Additional Public Prosecutor submitted that since the provision of 'the Act' is invoked for the said offence the appellants are not entitled to pray for an order of anticipatory bail under Section 438 of the Criminal Procedure Code, 1973 (for short, 'the Code') and therefore, this appeal praying for the same be dismissed.
7. Ms.Jhaveri, learned Additional Public Prosecutor has placed the papers of investigation for the perusal of the Court.
8. Considering the papers of investigation and the allegations levled in the 'FIR', long delay in filing the 'FIR', more particularly invoking the provisions of 'the Act' showing the incident of the date when he was facing a prosecution under Section 354A and other allied offences, that too, at the instance of accused No.2 in the present 'FIR' if not concluding that, prima-facie, no case under 'the Act' is made out, leaving it open for the trial Court to determine at the end of trial, it appears to be an absue of process of law to deprive the appellants of other statutory remedy as available the under 'the Code'. Hence, I deem it fit to enlarge the appellants on anticipatory bail when two of the accused are already arrested and released on regular bail.Page 3 of 5 Downloaded on : Fri Oct 15 05:15:23 IST 2021
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9. Hence, the Investigating Officer is directed to release the appellants on bail in the event of their arrest in connection with the offence registered at C.R. No.11192060210484 of 2021 for the alleged offence punishable under Sections 143, 504, 506(2) and 114 of of the Indian Penal Code, Sections 3(1)(r) and 3(1)(s) of 'the Act' registered with Viramgam Rural Police Station, District: Ahmedabad Rural. on their executing personal bond of Rs.10,000/- each with the surety of the like amount on the following terms and conditions that;
(a) they shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) they shall remain present at concerned Police Station on 21st October, 2021 between 11.00 a.m. and 2.00 p.m.;
(c) they 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 officer;
(d) they 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) they 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) they shall not leave India without the permission of the concerned trial court and if having passport shall deposit Page 4 of 5 Downloaded on : Fri Oct 15 05:15:23 IST 2021 R/CR.A/1129/2021 ORDER DATED: 14/10/2021 the same before the concerned 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;
10. 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. 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.
11. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
12. With this, the present Appeal is disposed of as allowed.
(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA Page 5 of 5 Downloaded on : Fri Oct 15 05:15:23 IST 2021