Gujarat High Court
Kripalsinh Jorubha Zala vs State Of Gujarat on 11 October, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.A/1825/2022 ORDER DATED: 11/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1825 of 2022
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KRIPALSINH JORUBHA ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR LAXMANSINH M ZALA(5787) for the Appellant(s) No. 1
PUBLIC PROSECUTOR 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 NIKHIL S. KARIEL
Date : 11/10/2022
ORAL ORDER
1. Heard learned Senior Advocate Mr. Pahwa with learned Advocate Mr. Laxmansinh Zala on behalf of the appellant, learned Additional Public Prosecutor Mr. L.B. Dabhi on behalf of respondent No.1-State and learned Advocate Mr. Rahul Sharma for the respondent No.2- first informant.
2. By way of this appeal filed under Section 14A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,1989 read with Section 438 of the Code of Criminal Procedure, 1973, the appellant prays for being released on anticipatory bail in connection with F.I.R. No. 11821033200446 of 2022 registered with Limbdi Police Station, District Dahod, on 24.06.2020 for the offences punishable under Sections 294(b) and 352 of the Indian Penal Code along with Sections 3(1)(r) and 3(1)(s) of the Scheduled Page 1 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 Castes and Scheduled Tribes (Prevention of Atrocities) Act.
3. At the outset, it requires to be noted that while the FIR had been registered on 24.06.2020, the present appellant had initially preferred an application being Criminal Miscellaneous Application No. 12297 of 2020 and whereas vide an order dated 12.09.2020 a learned Co-ordinate bench of this Court had been pleased to direct no coercive action to be taken against the appellant. It further appears that vide an order dated 19.07.2022, a learned Co-ordinate bench after considering the material on record had vacated the interim relief whereas the application for quashing was kept pending. It further appears that the said order dated 19.07.2022 had been challenged by the appellant before the Hon'ble Apex Court and whereas vide an order dated 22.08.2022, the Hon'ble Apex Court was pleased to not interfere with the order in question. It appears that thereafter, the present appellant had moved an application before the learned Sessions Court and whereas vide an order dated 08.09.2022 the learned Sessions Court had rejected the application preferred by the present appellant which resulted in the present appeal being filed.
4. Learned Senior Advocate Mr. Pahwa with learned Advocate Mr. Zala for the appellant would submit that the allegation as mentioned in the FIR , is in a very narrow compass inasmuch as the first informant alleges that he had an issue with regard to toll being collected at the Limbdi Road Toll Plaza and whereas he had called up the Police Inspector i.e. the present appellant for filing of the complaint and Page 2 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 whereas the Police Inspector had called the first informant to the Police Station and whereas upon reaching the Police Station the first informant had found that the present appellant
- Police Inspector had allegedly consumed liqour and whereas he had abused the friends of the first informant who had gone to the Police Station and had asked them to go out of his chamber and thereafter he had abused the first informant using caste related abuses. Learned Senior Advocate Mr. Pahwa would submit that the present appellant did not know the caste of the first informant and whereas from the FIR itself it appears that the present appellant upon being informed by the first informant about some illegality had called the first informant to the Police Station for filing of the complaint. Learned Senior Advocate would submit that as such there was no previous acquaintance between the present appellant and the first informant for any altercation to have been taken place and there was no reason for the appellant for have used the abusive term whatsoever against the first informant. Having regard to such submissions, learned Senior Advocate would request this Court to considering releasing the appellant on anticipatory bail.
4.1 Learned Senior Advocate would further submit that since a plain reading of the FIR though indicates certain caste related abuses allegedly being used by the present appellant but considering the overall conspectus of the facts more particularly with regard to the submissions made, it would appear that the said allegations are completely improbable and hence since no prima-facie case of having committed an Page 3 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 offence under the atrocities Act not being made out it is requested that this Court may exercise jurisdiction and enlarge the present appellant on anticipatory bail.
4.2 Learned Senior Advocate Mr. Pahwa for the appellant on instructions states that the appellant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for their remand. Learned Advocate would further submit that upon filing of such application by the Investigating Agency, the right of appellant- accused to oppose such application on merits may be kept open.
5. This appeal as well as submissions of learned Advocate Mr. Shah have been vehemently opposed by learned Additional Public Prosecutor Mr. Dabhi appearing on behalf of the respondent-State, who would submit that there is enough material to show that there had occurred some altercation in the chamber of the present appellant at the Police Station and whereas it also appears that later on the altercation had gone slightly out of control inasmuch as from the material on record it appears that a Dharna had also taken place at the Police Station. Learned APP Mr. Dabhi would submit that while prima- facie the FIR may appear to be delayed, however, at the same time it also appears that the present first informant had immediately i.e. on the very same day given an application to the Deputy Superintendent of Police , Zalod Division and whereas it appears that the FIR had been filed on 24.06.2020 after approximately 8 days. Learned APP having regard to such Page 4 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 submissions would request this Court not to entertain the present appeal.
6. Submissions of learned Advocate Mr. Shah for the appellant have also been vehemently objected to by learned Advocate Mr. Rahul Sharma for the first informant. Learned Advocate Mr. Rahul Sharma would submit that the present appellant having used the caste related abuses as mentioned in the FIR, is itself enough proof of the fact that the present appellant knew about the caste status of the first informant. Learned Advocate Mr. Sharma would also draw the attention of this Court to the screenshots of CCTV footages, of the Police Station at the relevant point of time and would submit that from the photographs it becomes evident that while the first informant was entering into the Police Station, there was no aggression on the part of the first informant whereas it clearly appears that after the first informant and his friends had gone into the chamber of the present appellant, something had happened and the first informant and his friends are seen walking out. Learned Advocate Mr. Sharma would also rely on the decision of the Hon'ble Apex Court in the case of Vilas Pandurang Pawar and Another V/s State of Maharashtra and Ors reported in 2012 8 SCC 795, more particularly Para No. 10 thereof and would submit that the Hon'ble Apex Court had laid down the law that if there is a prima-facie case under the provisions of Scheduled Tribes (Prevention of Atrocities) Act, 1989 made out on reading of the FIR then an application for Anticipatory Bail should not be entertained by any Court. Learned Advocate would further rely upon the observations of Page 5 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 the Hon'ble Apex Court that the Court while dealing with an Anticipatory Bail application is not expected to indulge in critical analyses of the evidence on record. Having regard to such submissions, more particularly, relying upon the observations of the Hon'ble Apex Court, learned Advocate Mr. Sharma would request this Court not to entertain the present appeal. .
7. Having heard the learned Advocates for the parties and having perused the documents given by learned Advocates for the parties as well as investigation papers supplied by the learned APP, the following relevant aspects are considered by this Court:
[1] It also appears that in his original application dated 16.06.2020 to the Deputy Superintendent of Police, Zalod and in the FIR, the present first informant had mentioned that he had called up the Police Inspector i.e. the present appellant on account of some issue at the Toll Plaza and whereas the Police Inspector had asked him to come to the Police Station for registering a complaint.
[2] It prima-facie appears that the incident in question as alleged by the first informant happened inside the chamber of the present appellant who was Inspector of Police at the relevant point of time.
[3] It appears that once the first informant entered into the Police Station rather entered into the chamber of the Police Inspector - present appellant, without any reasons whatsoever the friends of the present first informant were Page 6 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 asked to go out of the chamber and whereas the first informant had been abused.
[4] It also appears that while the FIR had been registered on 24.06.2020, the present first informant has given a further statement on 25.06.2020. It further appears that in the said further statement, an exaggerated version of the incident is sought to be narrated by the first informant. It is mentioned by the first informant that he had initially called up a Police Sub- Inspector one Mr. Pargi and whereas he had given the contact number of the present appellant to the first informant and upon the first informant calling up the present appellant he had been abused on the telephone. It appears that such an aspect had not been mentioned by the appellant before the further statement more particularly such allegation of abuse over telephone is not found in the complaint to the Deputy Superintendent of Police or the FIR in question. Thus it appears that there is an attempt to exaggerate allegations.
[5] It also appears that the first informant had gone to the Police Station along with his friends and approximately 30 to 35 people of his community had accompanied him as coming out from the FIR. Hence, it prima-facie appears that the first informant had gone to the Police Station with the intention of creating a scene and whereas other than such an intention there was no reason for the first informant to have gone to the Police Station with 25-30 persons.
[6] This Court has perused the statements of persons Page 7 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 who had visited the Police Station along with the present first informant and whereas it appears that the said persons including the sons of the present first informant have given similar versions as like the further statement of the first informant.
[7] This Court has also perused the statement of one Rajkumar Jayantilal Parmar who appears to be an independent witness who had visited the Panchayat Office at the relevant point of time and the said Panchayat Office being absolutely opposite to the Police Station, according to the said witness, there were some persons who were shouting slogans against the present appellant and whereas it also appears that the said witness had heard both the parties abusing each other and whereas the the said witness states that he does not remember any caste related abuses having been used by the present appellant further he also states that the present appellant did not look like he had consumed liqour.
[8] Similar statements have been made by the President of the Limbdi Panchayat, who upon hearing the altercation had come out of the Panchayat Building and had seen the altercation ensuing.
[9] Thus, it appears that while the first informant had called the present appellant at the first instance over the mobile phone, there does not appear to have been any abusive language used by the present appellant and whereas the same is not coming out from the first application given by the first informant to the Deputy Page 8 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 Superintendent of Police, Zalod as well as the FIR. [10] It further appears that in the further statement an exaggerated version is mentioned by the first informant more particularly it also appears that since the FIR as well as the application of the first informant does not state any cause for the present appellant to have got annoyed with the first informant or to abuse the first informant, in the prima-facie opinion of this Court, the further statement has been recorded just to fill the gaps.
[11] It also appears as noted hereinabove that the present first informant had gone to the Police Station with a view to create some issue more particularly since in the further statement the first informant admits that he had visited the Police Station along with around 30 to 35 persons of his community. In the considered opinion of this Court, a person going to the Police Station to file a complaint, would not in normal circumstances gather persons from his community unless person had some agenda in his mind.
[12] It also appears as noted hereinabove, that the present appellant and the first informant did not have any interaction before the incident in question and whereas being absolutely strangers to each other, the present appellant had no reason whatsoever either to quarrel with the first informant or to abuse the first informant using caste related abuses, more particularly since he had no knowledge about the caste status of the first informant before the incident in question.
[13] It also appears that the allegations of caste related Page 9 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 abuse was made inside the chamber of the present applicant and whereas it does not appear that either the same was in public view or that any person except the first informant had heard such caste related abuse being uttered. It also appears that the present applicant is a public servant more particularly a Police Inspector and whereas considering the prima-facie inconsistence which have been noticed by the Court hereinabove, while the aspect of frivolity in the prosecution could not be ruled out and considering the same, directing the appellant to undergo custodial interrogation could not be an unnecessary harassment and humiliation of the present appellant. This Court has also considered the fact that the present appellant does not have any antecedents of being involved in any criminal offence of any nature whatsoever,
8. Having regard to the above, in the considered opinion of this Court, a prima-facie case for offences punishable under sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act not being made out, this is a fit case where this Court would exercise jurisdiction under Section 438 of the Code moreover as far as the judgment of the Hon'ble Apex Court as relied upon by learned advocate Mr. Sharma for the first informant is concerned, the law laid down by the Hon'ble Apex Court being binding on all Courts including this Court, is undoubtedly the law of the land but at the same time the Hon'ble Apex Court Page 10 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 has also clearly stated that if a prima-facie case is not made out then there is no bar on this Court to entertain an application for anticipatory bail. Furthermore, while critical analyses of the evidence on record is certainly not expected but at the same time the aspects are required to be looked into, to come to a conclusion that whether a prima-facie case is made out or not and whereas in the considered opinion of this Court, this Court has only looked into such aspects to find out whether a prima-facie case for impinging upon the liberty of the appellant is required or not.
9. Having regard to the same and considering the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this appeal.
10. In the result, the present appeal is allowed by directing that in the event of appellant herein being arrested pursuant to the F.I.R. No. 11821033200446 of 2022 registered with Limbdi Police Station, District Dahod, the appellant shall be released on bail on furnishing a personal bond of Rs.1,00,000/- (Rupees One Lakh only) each 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 Page 11 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 on 28.10.2022 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 the case so as to dissuade him 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 or till further orders;
(f) 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.
11. 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 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 Page 12 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022 R/CR.A/1825/2022 ORDER DATED: 11/10/2022 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.
12. 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) V.V.P. PODUVAL Page 13 of 13 Downloaded on : Sun Dec 25 03:46:26 IST 2022