Manuben Rahimkhan Malek vs State Of Gujarat on 26 December, 2018

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Gujarat High Court

Manuben Rahimkhan Malek vs State Of Gujarat on 26 December, 2018

Bench: G.R.Udhwani

        R/CR.A/1984/2018                                  ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CRIMINAL APPEAL NO. 1984 of 2018
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                  MANUBEN RAHIMKHAN MALEK
                           Versus
                      STATE OF GUJARAT
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Appearance:
MR DIPEN K DAVE(3296) for the PETITIONER(s) No. 1
SAJID Y KARIYANIYA(9619) for the PETITIONER(s) No. 1,2
MR PRANAV TRIVEDI APP(2) for the RESPONDENT(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2
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 CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 26/12/2018
ORAL ORDER

Denial of bail for the offences punishable under Sections 323, 147, 148, 149, 504, 506(2) of the Indian Penal Code and under Sections 3(2)(5-a) and 3(1)(R)(S) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendments Act, 2015 (for short the Act) and under Section 135 of the Gujarat Police Act for which FIR came to be registered at C.R. No.I-45 of 2018 with Lakhtar Police Station, Dist: Surendranagar; by an order dated 22/11/2018 passed by the learned Additional Sessions Judge, Surendranagr in CR.MA No.1290 of 2018 has given rise to this appeal under Section 14A(2) of the Act.

2. Having regard to the nature of accusation against the appellants and having regard to the fact that except 506(2) of the IPC; all other offences are bailable, the bail in anticipation of arrest cannot be denied to the appellants.

Insofar as the offence punishable under Section 504 of the IPC i.e. intentional insult with intent to provoke breach of the peace must be borne in the evidence. No such facts are emerging on record.

For the offence punishable under Section 506(2) of the IPC, a criminal intimidation as defined in Section 503 of the IPC must be borne in the evidence on record. This Court has elaborately discussed the requirements of Section 503 and 506(2) of the IPC Page 1 of 3 R/CR.A/1984/2018 ORDER while deciding Criminal Appeal No.2213 of 2006. However, no ingredients of Section 503 of the IPC are borne in the evidence.

So far as accusations under section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are concerned, the necessary averments that the offender is not the member of Scheduled Castes and Scheduled Tribes are lacking from the FIR and in similar circumstances in Gorige Pentaiah v. State of Andhra Pradesh [(2008) 12 SCC 531],, the FIR devoid of such averments was quashed. Thus even under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellants ought to have been considered for the bail.

The Trial court unfortunately did not adhere to the above referred factual and legal scenario; consequently falling into a serious error resulting into denial of justice to the appellants. The impugned order therefore cannot be sustained. The same is required to be quashed and set aside. In absence of apprehension against the appellants fleeing from trial, tampering with the evidences or threatening the witnesses, case for admitting the appellants to bail in anticipation of their arrest is made out.

3. The appellants are ordered to be admitted to bail in anticipation of their arrest in connection with the FIR being C.R. No.I-45 of 2018 with Lakhtar Police Station, Dist:

Surendranagar on furnishing a bail bond of Rs.10,000/- (Rupees Ten Thousand only) each with two sureties each of the like amount on following conditions :-

[a] shall cooperate with the investigation and make himself available for interrogation whenever required;

[b] shall remain present at concerned Police Station on 02/01/2019 between 11.00 am to 2.00 pm;

[c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to Page 2 of 3 R/CR.A/1984/2018 ORDER any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;

[d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall intimate the change of residence if made by accused during the pendency of the case.

[e] shall not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately.

[f] 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. 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.

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.

Direct service is permitted.

(G.R.UDHWANI, J) SOMPURA Page 3 of 3

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