Gujarat High Court
Pathan Rafiqkhan Sabbirkhan vs State Of Gujarat on 10 August, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.A/483/2021 ORDER DATED: 10/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 483 of 2021
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PATHAN RAFIQKHAN SABBIRKHAN
Versus
STATE OF GUJARAT
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Appearance:
MR PARTHIV B SHAH(2678) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Opponent(s)/Respondent(s) No. 2
MR JK SHAH, ADDL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 10/08/2021
ORAL ORDER
1. ADMIT. Learned Additional Public Prosecutor Mr. J.K. Shah for respondent No.1- State and learned advocate Mr. Premal S. Rachh for respondent No.2- complainant waive service of notice of admission.
2. By way of this appeal under Section 14A of the Scheduled Caste and Scheduled tribes (Prevention of Atrocities) Act, 1989, (for short 'Atrocities Act'), the appellant- original accused No.3 has prayed for anticipatory bail in connection with the FIR, being C.R. No.11199039210075 of 2021 dated 25.2.2021 registered before Palej Police Station, Bharuch for the offences punishable under Sections 143, 147, 148, 149, 323, 326, 354(A) and 504 of the Indian Penal Code and Section 135 of the Gujarat Police Act, Sections 3(1)(r), 3(1)(s), 3(2)(5-A) and 3(1)(w-2) of the Atrocities Act.
3. The case of the appellant is that the appellant is apprehending his arrest in connection with the aforesaid FIR, which came to be filed on the premise that the complainant and his sister were passing through the market, one of the accused persons had tried to harass the sister of the complainant and thereafter, the entire incident had taken place. According to the complainant, at Page 1 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022 R/CR.A/483/2021 ORDER DATED: 10/08/2021 around 4 O'clock, with the other accused, the appellant went to the house of the complainant and thereafter, there was exchange of words, which has resulted into utterance of words on the caste of the complainant. All the accused started beating the complainant and his father and since the father sustained injury, according to the complainant, this appellant, who has been shown as accused No.3, took his father to the hospital for immediate medical treatment and the appellant has not been attributed with any specific allegation about commission of the crime nor has uttered words which may attract the provisions of the Atrocities Act. But, since the appellant was apprehending his arrest in connection with the aforesaid complaint, he preferred Criminal Misc. Application No.197 of 2021 before learned Special Judge (Atrocities), Bharuch, however vide order dated 18.3.2021, learned Judge was pleased to reject the anticipatory bail, as a result of which, feeling aggrieved by and dissatisfied with the said order and for seeking protection against the arrest, the present criminal appeal is filed, as stated above.
4. The appeal was initially placed for hearing before the Coordinate Bench and after hearing, following order was passed on 6.4.2021:-
Having regard to the role of the present appellant alleged in the FIR and further, there is vague allegation as to abuse of caste of the first informant and therefore, applicability of provisions of the SC/ST Act is doubtful and therefore, present appeal deserves consideration.
Notice returnable on 15.6.2021. Learned APP waives service of notice for the respondent - State and learned advocate Mr. Rachh waives service of notice for the respondent No.2. Meanwhile, no coercive steps shall be taken against the appellant. However, the investigation shall go on in accordance with law. The appellant shall remain present at concerned police station on 15.4.2021 between 10:00 a.m. and 2:00 p.m. Thereafter, from time to time, the interim relief granted is extended.Page 2 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022
R/CR.A/483/2021 ORDER DATED: 10/08/2021 With this background, the present criminal appeal is placed for hearing before this Court.
5. Learned advocate Mr. Parthiv B. Shah appearing on behalf of the appellant has submitted that from the bare reading of the complaint, ex-facie, no provisions of Atrocities Act are applicable or attracted against the appellant, who is shown as accused No.3 nor from the entire narration of the complaint, any active role is played by the appellant, on the contrary, the FIR itself indicates that with a view to give immediate medical treatment, the father of the complainant was taken to hospital on the motorbike of the present appellant. So instead of taking part in the commission of the offence, the FIR itself is suggesting that the appellant has come to the rescue by taking father of the complainant to hospital for immediate treatment. Mr. Shah has further submitted that bare reading of the complaint would clearly indicate that not only no offence is made out against the present appellant but mere general allegations are leveled on the basis of which, the complaint is filed insofar as it relates to the present appellant. According to Mr. Shah, ex-facie, when no offence is made out, especially the Atrocities Act, the Court may kindly extend the protection as prayed for in the appeal. It has been submitted by Mr. Shah that even pursuant to the order which has been passed by the Coordinate Bench on 6.4.2021, the appellant has cooperated with the investigating machinery, has remained present, as ordered by the Hon'ble Court, and as such, there is a no such circumstance which may deprive the appellant from protecting his arrest in connection with the FIR.
6. Learned advocate Mr. Shah, with a view to clarify the allegation about no prima facie case and no offence made out in the Page 3 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022 R/CR.A/483/2021 ORDER DATED: 10/08/2021 complaint against the appellant, has drawn the attention of this Court to the assertion of the complaint and on the basis of such assertion, a request is made to grant anticipatory bail. It has further been submitted that learned Court below has no-doubt taken into consideration the role played by all the accused but has not construed the circumstance of helping out the father of the complainant for immediate medical treatment. Had there been any intention, such gesture on the part of the appellant would not have been there and this material aspect has not been considered. It has further been submitted that there is no criminal history nor any criminal antecedent of the present appellant. Hence, prima facie, when no case is made out against the appellant in respect of the provisions of the Atrocities Act, the role played by the appellant may not be treated to be such which would deprive the appellant from seeking protection against his arrest in connection with the FIR.
7. Learned advocate Mr. Shah has vehemently submitted that on the contrary, looking to this conduct on the part of the appellant, having not actively participated in the commission of the crime, as alleged, on the contrary, trying to help out and came to the rescue, complainant Ajaybhai Bharatbhai Vasava, has filed a specific affidavit before this Court in the criminal appeal that looking to the gesture shown by the appellant and having understood the episode, on affidavit, he has categorically submitted that he has no objection if the present appellant is enlarged on anticipatory bail. It has been asserted clearly that this affidavit is not filed under any pressure or coercion nor filed for any monitory gain. The said affidavit is reflecting on page 21 of the appeal record.
8. As against the aforesaid submissions, learned advocate Mr. Premal Rachh appearing on behalf of the original complainant-Page 4 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022
R/CR.A/483/2021 ORDER DATED: 10/08/2021 respondent No.2 has, on instruction, submitted that looking to the fact that the present appellant took the father of the complainant to the hospital for immediate treatment and having come to know that the present appellant has not committed any offence, the complainant has clearly stated in the affidavit that he has no objection for grant of protection to the appellant and therefore, under instruction, has stated that the appeal be allowed.
9. Learned Additional Public Prosecutor Mr. J.K. Shah appearing for the respondent - State has submitted that this is an appeal for grant of anticipatory bail and therefore, if the role played by the appellant is reflecting in the FIR, the Hon'ble Court may not consider. However, while going through the contents of the FIR in which it has been stated that the present appellant has taken the father of the complainant to the hospital, and specific affidavit is filed on behalf of respondent No.2 and after initial objection, has ultimately left to the discretion of the Court.
10. Having heard learned advocates appearing for the parties and having gone through the submissions made by them, this Court is of the opinion that prima facie, though it is alleged against the appellant that he is a party to such other accused persons, but the conduct and the role alleged against the appellant is not sufficient enough to deprive him from protection against the arrest as prima facie, neither he is specifically alleged anything nor he has uttered words of anything in public which may attract the provisions of the Atrocities Act. Looking to the assertion made in the complaint itself, this appellant on the contrary took the father of the complainant to the hospital for immediate medical treatment on his own motorcycle, and there is nothing much reflecting against the present appellant.Page 5 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022
R/CR.A/483/2021 ORDER DATED: 10/08/2021
11. Additionally, the Court has also considered the fact that the complainant upon realizing the situation and having gone through the FIR has realized that the appellant has on the contrary taken his father to the hospital for medical treatment and has expressly stated in his affidavit that there is no objection if anticipatory bail is granted to the present appellant.
12. In view of the aforesaid peculiar background of fact and in view of the fact that prima facie, against the present appellant, there seems to be no offence of Atrocity Act is made out of such nature which may deprive him from protection and as such, the Court is inclined to exercise the discretion in favour of the appellant in view of this peculiar background of fact related to the present appellant.
13. Looking to the aforesaid assertion made in the complaint itself and having not considered the same in the proper spirit by the Court below, the order impugned suffers from vice of non-
application of mind and as such, the appeal deserves to be allowed by quashing and setting aside the impugned order.
14. Hence, looking to this peculiarity of the circumstance and the stand of the appellant from the assertion of the complaint, the case is made out to extend the relief in favour of the appellant by quashing and setting aside the order passed by the Court below.
15. In the result, the present appeal is ALLOWED. The impugned order dated 18.3.2021 by the learned Special Judge (Atrocity) & 5 th Additional Sessions Judge, Bharuch in Criminal Misc. Application No.197 of 2021 is hereby quashed and set aside. It is ordered that in the event of appellant herein being arrested pursuant to FIR registered as C.R. No.11199039210075 of 2021 registered before Palej Police Station, Bharuch, the appellant shall be released on Page 6 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022 R/CR.A/483/2021 ORDER DATED: 10/08/2021 bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) each with one surety of like amount on the following conditions that the appellant shall :
(a) cooperate with the investigation and make available for interrogation whenever required;
(b) remain present at concerned Police Station on 13.08.2021 between 11.00 a.m. and 2.00 p.m.;
(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;
(d) 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) at the time of execution of bond, furnish their address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;
(f) not leave India without the permission of the Court and if having passports 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;
16. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. 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, Page 7 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022 R/CR.A/483/2021 ORDER DATED: 10/08/2021 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.
16. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail.
17. The appeal stands disposed of, accordingly.
Direct service is permitted.
(ASHUTOSH J. SHASTRI, J) OMKAR Page 8 of 8 Downloaded on : Sun Jan 16 07:21:58 IST 2022