Gujarat High Court
Vaibhav Balkrushan Thakkar vs State Of Gujarat on 13 July, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.A/1018/2022 ORDER DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1018 of 2022
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VAIBHAV BALKRUSHAN THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MONTUBHAI G PATEL(9299) for the Appellant(s) No. 1
MR AMIT N CHAUDHARY(5599) for the Appellant(s) No. 1
KRUNAL S MEHTA(9227) for the Opponent(s)/Respondent(s) No. 2
MS SWETHA D BHATT(11512) for the Opponent(s)/Respondent(s)
No. 2
MR. L.B.DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 13/07/2022
ORAL ORDER
1. Heard learned Advocate Amit Chaudhary appearing on behalf of the appellant; learned APP Mr.L.B.Dabhi, for the respondent No.1-State and learned advocate Mr.Krunal Mehta for the First Informant.
2. Admit. Mr. L.B.Dabhi, learned APP waives service of notice of admission for respondent No.1- State and Mr. Krunal Mehta, learned advocate waives service of notice of admission for and on behalf of First Informant.
3. This appeal is filed by the appellant, under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act read with Section 438 of Page 1 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022 R/CR.A/1018/2022 ORDER DATED: 13/07/2022 the Code of Criminal Procedure, 1973, the appellant pray for being released on anticipatory bail in connection with F.I.R. No.11196016220402 of 2022 with Makarpura Police station, District Vadodara for the offences punishable under Sections 323, 294(B), 114 of IPC and under Sections 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 135 of G.P.Act.
4. Learned advocate for the appellant submits that it is the case of the complainant that offence has taken place at shop of the appellant but there is no any public present at the time of offence and as per Section 3(1)(r) offence only taken place insult or intimidation within public view. Therefore, offence under Atrocity Act is not attracted against the appellant. He has further submitted that present complainant stated concocted fact in FIR to extort money from the appellant. He has further submitted that present complainant has suppressed material fact and lodged concocted FIR against the appellant. He has further submitted that the incident has taken place on 6.4.2022 at 21:00 and present FIR lodged at 7.4.2022 at 19:45 which clearly shows that above story made is after thought on advise of someone. He has further submitted that FIR lodged with clear intention to harass and entire complaint Page 2 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022 R/CR.A/1018/2022 ORDER DATED: 13/07/2022 lodged with intention to damage image of the appellant & lodged FIR with intention to extort the money. Hence, it is requested by learned advocate for the appellant to enlarge the present appellant on anticipatory bail in the event of his arrest.
5. From the other side, learned APP for the respondent -State as well as learned advocate for the First Informant have opposed the prayer made by the appellant and submitted that complaint itself shows that prima facie case is made out against the present appellant by the prosecution. That, no prayer in nature of anticipatory bail can be granted to the present appellant, considering his involvement made by the prosecution. That Section 18A of the Act clearly bars to grant of anticipatory bail as prayed by the present appellant. Therefore, no prayer may be granted by this Court for enlarging him on anticipatory bail. Ultimately, learned APP for the respondent-State as well as learned advocate for the First Informant have requested to dismiss the present appeal.
6. Having heard the learned Advocates appearing for the parties and having perused the documents given by learned Advocates for the parties as well as documents provided by the learned APP, the following relevant aspects are considered by this Court:-
Page 3 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022R/CR.A/1018/2022 ORDER DATED: 13/07/2022 [1] That, it is stated by the First Informant in the FIR that he had mortgaged his residential property in favour of the father of the appellant. It appears that in the year 2017, father of the present appellant had purchased the property by way of notarized documents. Thereafter, it appears that father of the appellant had further sold the property to the present appellant.
[2] From the documents, it appears that the parties were known to each other from 2017 and it also appears that the parties were having good relationship and there does not appear to be any animosity against the present appellant or family members more particularly, on the caste of the First Informant.
[3] Prima facie, it appears that there is some dispute with regard to property in question between the parties and the aspect of frivolity in prosecution may probably be possible.
[4] That in view of the fact that the incident in question had happened inside the provision store by the accused No.1 -father of the appellant whereas, it does not appear that the incident was taken place within public place & public view.
[5] It also appears from the record that there is no criminal antecedent against the present appellant.Page 4 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022
R/CR.A/1018/2022 ORDER DATED: 13/07/2022
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. It appears that the FIR has alleged offences under the provisions of the Atrocity Act to bring the offence under the ambit of a mere serious provision.
8. In the result, the present appeal is allowed by directing that in the event of appellants herein being arrested pursuant to the F.I.R. No.11196016220402 of 2022 with Makarpura Police station, District Vadodara, the appellants shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount, on the following conditions:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 18.7.2022 between 11:00 a.m. and 2:00 p.m.;
(c) shall mark presence at the concerned Police Page 5 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022 R/CR.A/1018/2022 ORDER DATED: 13/07/2022 Station once in a month for a period of three months between 11:00 a.m. and 2:00 p.m.
(d) 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;
(e) 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;
(f) 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 or till further orders;
(g) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
9. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the appellant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The appellant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent Page 6 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022 R/CR.A/1018/2022 ORDER DATED: 13/07/2022 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 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.
10. 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. The appeal is allowed in the aforesaid terms.
Direct service is permitted.
(NIKHIL S. KARIEL,J) BEENA SHAH Page 7 of 7 Downloaded on : Thu Jul 14 21:43:44 IST 2022