Gujarat High Court
Prafulbhai @ Prafulkumar Vasudevbhai ... vs State Of Gujarat on 23 December, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/760/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 760 of 2020
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PRAFULBHAI @ PRAFULKUMAR VASUDEVBHAI PANDYA
Versus
STATE OF GUJARAT
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Appearance:
MR.ADITYA J PANDYA(6991) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MS NILAM N CHAUHAN(6635) for the Opponent(s)/Respondent(s) No. 2
MS. M.H. BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 23/12/2020
ORAL ORDER
The appellant has filed Criminal Misc. Application No. 1535 of 2020 before the Court of learned 7th Additional District and Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad u/s 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail in the event of his arrest on account of offence being registered vide C.R. No. 11191020201222 of 2020 with Vastrapur Police Station, Ahmedabad City for the offence punishable under Sections 3(1)(r) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short "the Atrocity Act") wherein, the learned 7th Additional District and Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad rejected the said application on 22.07.2020. Page 1 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020
R/CR.A/760/2020 ORDER Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14A of the Atrocity Act.
Heard learned advocates for the respective parties and learned APP for the respondentState.
Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence and appellant is not connected in any manner whatsoever with the alleged commission of offence. That, nowhere mentioned by the complainant that present appellant has insulted or intimidated with an intention to humiliate in a place within public place. That, the basis ingredients of the offence are missing in the complaint and no offence under the Atrocity Act has been committed by the present appellant. That, specific role of the present appellant was not disclosed in the complaint. That, present appellant is unnecessarily dragged into the present offence. Hence, it was requested by learned advocate for the appellant to allow present application.
Learned APP for the respondent State and learned advocate for respondent no.2 have referred the statement of Page 2 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020 R/CR.A/760/2020 ORDER Arunkumar Shankarbhai Patel and Tarunbhai Ganpatlal Solanki and submitted that both of the witnesses have supported a clear terms of the prosecution case. That no Sections 18 and 18A of the Atrocity Act and there is a bar of Section 438 of the Cr.P.C. That prima facie involvement of present appellant is clearly established by the prosecution as he has uttered words inserting the caste of the members of the ST/SC and therefore, clearly attracted the provisions of Sections 3(1)(r) and 3(2)(va) of the Atrocity Act. That appellant was telecasting the program within a public view and number of persons were participated. As the appellant is involved in the offence, Trial Court has rightly rejected the prayer made by the appellant not to release him in the event of his arrest and therefore, it was requested by learned APP for the respondentState and learned advocate for respondent no.2 to dismiss present appeal.
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 Page 3 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020 R/CR.A/760/2020 ORDER 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. View taken by the High Court of Gujarat in the case of Pankaj D. Suthar (supra) and Dr.N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(2)(5)(a), 3(g), 3(p), 3(r),3(s), 3(z)(c) & u/s. 8 of the Atrocity Act.
In the case of Union of India Vs. State of Maharashtra in Review Petition (Cri.) No.228 of 2018 in Criminal Appeal, it was opined that direction nos.(iii) and (iv) issued by the Hon'ble Supreme Court deserve to be and are hereby recalled Page 4 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020 R/CR.A/760/2020 ORDER and consequently we hold that direction no.(v), also vanishes. The other directions remained as it is as there is no bar in granting anticipatory. This Court has made scrutiny of the complaint and prima facie, it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint.
In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme Court Cases 531, it was held that according to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant accused was not a member of the Scheduled Caste or a Scheduled Tribe, he was was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view.
In the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra reported in 2018 SC 1498, the Hon'ble Apex Court has affirmed the view take earlier. This Court in case of Champakbhai Lalubhai Patel Vs. State of Gujarat (Manu/GJ/0520/2019) has held that when basic ingredients Page 5 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020 R/CR.A/760/2020 ORDER of offence under the Atrocity Act are not attracted, there is no bar to grant anticipatory bail.
Having gone through the facts of the case and arguments advanced by learned advocates for the respective parties as well as learned APP for the respondentState, it appears that present appellant has been falsely arraigned as an accused with respect to FIR being C.R. No. 11191020201222 of 2020 with Vastrapur Police Station, Ahmedabad City for the offence punishable under Sections 3(1)(r) and 3(2)(va) of the Atrocity Act. It transpires from the material on record that during the debate, present appellant was sharing his views on eclipse and at around 12:00 to 12:17, he uttered words "Gaam Hoy Tya Dehdwado Hoy". Accordingly, the impunged FIR was lodged against the present appellant. If we peruse the entire FIR, this Court is of the view that it does not disclose any commission of offence. It appears that entire debate was on the topic of effect of Solar Eclipse and participants were sharing their views as per their expertise. The present appellant was also discussing vedic angle of eclipse while another participant Page 6 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020 R/CR.A/760/2020 ORDER was countering the same on scientific basis. If we consider the transcript of entire debate produced on record, there was not a remotest reference to any Scheduled Tribes or Scheduled Caste or any members of the same. It appears that entire debate was center around effects of eclipse. On this background, allegations of prosecution regarding uttering of the words would require to be judged. From the bare reading of Section 3(1)(r) of the Atrocity Act, essential ingredients would be (1) mens rea i.e. intention to insult any member of SC/ST, (2) insult or humiliation of a member of SC/ST. From the transcript produced on record, it clearly transpires that there was no intentional utterance. No offence in absence of any intention can be made out by the prosecution. If we consider second ingredients to attract proviso of Section 3(1)(r) of the Atrocity Act, there has to be an actual insult/humiliation of members of SC/ST. It appears that same were not uttered with reference to any member of SC/ST, even remotely. Entire transcript would not suggest that subject matter of discussion was any member or the entire community of SC/ST Page 7 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020 R/CR.A/760/2020 ORDER community. If we consider Section 3(2)(va) of the Atrocity Act, this would be attracted if any offence as specified in the scheduled is committed by the accused. In the FIR, no charge is levelled against the appellant with any of the scheduled offence, and therefore, on the face of it, Section 3(2)(va) of the Atrocity Act would not be attracted.
In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 22.07.2020 passed in Criminal Misc. Application No. 1535 of 2020 by learned 7th Additional District and Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs. 10,000/ with surety of like amount on the following conditions that the appellant:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 06.01.2021 between 11.00 a.m. and 2.00 p.m.; Page 8 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020
R/CR.A/760/2020 ORDER
(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 till further orders;
(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the 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; Page 9 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020
R/CR.A/760/2020 ORDER 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.
Page 10 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020
R/CR.A/760/2020 ORDER Notice stands discharged.
Registry shall forward a copy of this order to the concerned police station through fax or email forthwith.
(B.N. KARIA, J) VARSHA DESAI Page 11 of 11 Downloaded on : Fri Dec 25 06:19:19 IST 2020