Gujarat High Court
Shankarbhai Gomanbhai Kolipatel vs State Of Gujarat on 31 August, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.A/2534/2019 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2534 of 2019
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SHANKARBHAI GOMANBHAI KOLIPATEL Versus STATE OF GUJARAT ========================================================== Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1,2,3,4,5 MS DELNAZ B SHETHNA(3218) for the Opponent(s)/Respondent(s) No. 2 MS KRISHNA R RAWAL(10659) for the Opponent(s)/Respondent(s) No. 2 MR JK SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 31/08/2020 CAV ORDER
1. The present criminal appeal is filed under Section 14(A) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocity Act") for assailing the order passed by the learned 7th Additional Sessions Judge, Surat in Criminal Misc. Application No. 7314 of 2019 dated 24.12.2019, whereby the request for anticipatory bail came to be rejected.
2. The facts giving rise to the present appeal are that complainant - Navinbhai Gomanbhai Vasava lodged First Information Report, being C.R. No. I-10 of 2017 against the present appellants, who are accused persons, for the offences said to have committed on 07.02.2017. It has been asserted by the complainant that at about 8:00 p.m. in the night, when the complainant and his wife - Daxaben were sitting at home, since one of the relatives - Sureshbhai Kalidas Vasava and his wife Page 1 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER Lalitaben Vasava came to meet them, at that point of time, the present appellants along with some 20 persons came to the place of the complainant and conveyed specifically that why a false complaint under Atrocities Act came to be filed against the relatives of the appellants, namely Dahyabhai Prabhubhai Patel, Ramubhai Prabhubhai Patel, Mahesbhai Chimanbhai Patel and Jigneshbhai Haribhai Patel and by giving such threat, abusive language was used and conveyed that these 'Dubla' are not going to be improved and by using such kind of words, the appellants have attacked the complainant and one of the accused - Bhupendrabhai gave a slap on the chick of the complainant and administered threat unto death; out of that, the shirt was torn by these persons and from the pocket, the appellant - Bhupendrabhai snatched Rs.2,000/- and in the public, these 14 persons had created terror atmosphere and conveyed that these 'Dubla' are to be done away and by giving threat unto death, these persons went away. As a result of this, left with no other choice, a complaint was required to be filed by the complainant. This is the specific assertion made in the complaint, which is reflecting on Page-10 of the present appeal compilation and thereby, these appellants have committed offences punishable under Sections 395, 323, 504, 506(2), 1423, 147, 148 and 149 of IPC and Sections 3(1)(r)(s), 3(2)(5a) of the Atrocity Act.
3. It appears from the record that for seeking quashment of the present complaint, originally, the appellants have preferred Criminal Misc. Application No. 5160 of 2017, which was entertained by issuance of notice and after hearing both the sides at length, it appears that the same came to be disposed of vide order dated 11.12.2019, which order is reflecting on Page-
Page 2 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020R/CR.A/2534/2019 CAV ORDER 11, which reads as under :-
"Mr. Maulik Soni, learned advocate for Mr. N. K. Majmudar, learned advocate for the applicants, on written instructions as disclosed, seeks permission to withdraw this application. This application is disposed of as withdrawn. Notice is discharged. Ad-interim relief granted earlier vide order dated 20.02.2017, though objected by the learned advocate for the original first informant, is extended for a period of one week from today. "
4. Pursuant to this withdrawal of quashing petition, it appears that later on, an application under Section 438 of the Cr.P.C. came to be filed before the learned District and Sessions Judge (Special Atrocity Court) at Surat, for seeking anticipatory bail registered as Criminal Misc. Application No. 7314 of 2019. This application was dealt with by the learned 7 th Additional Sessions Judge, Surat, who, by order dated 24.12.2019, was pleased to reject the same. As a result of this, under Section 14A of the Atrocity Act, the present appeal is brought before this Court.
5. From the record, it appears that on 27.12.2019, the appeal came to be admitted by taking note of the situation that quashing petition came to be disposed of. But, then, an order came to be passed not to take any coercive steps against the appellants and this order dated 27.12.2019 is continued from time to time and lastly, it has come up for consideration for hearing before this Court on 31.07.2020. With this background, the matter has come up for consideration.
6. The learned advocates for both the sides have requested the Court to conduct the hearing. As a result of this, with the Page 3 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER consent of the learned advocates appearing for the respective parties, the matter was heard at length and reserved for orders.
7. Mr.N.K. Majmudar, learned advocate appearing for the appellants, has vehemently contended that there is a clear error on the part of the learned Sessions Judge, to reject the application. On the contrary, from a bare reading of the FIR, no offence is made out. The learned advocate for the appellants has further contended that embargo of Section 18 of the Act could not come in the way of the learned Sessions Judge, by virtue of which, the application came to be rejected. On the contrary, accordingly to the learned advocate for the appellants, this embargo of Section 18 of the Act is not that much static that power cannot be exercised under Section 438 of the Code of Criminal Procedure. By taking this basic contention, the learned advocate for the appellants has further submitted that 'Dubla' word is not a word which can attract the provisions of the Atrocity Act and furthermore, there must be a specific assertion in the First Information Report itself that in public domain, there was an intention to commit an offence. Hence, in absence of any such specific assertion in complaint, it cannot be said that any offence is committed and when that be so, the powers under Section 438 of the Code of Criminal Procedure are always permissible to be exercised. Mr. Majmudar, learned advocate for the appellants relied upon series of decisions to persuade the Court that anticipatory bail can be granted even if there is an offence under the Atrocity Act. In addition to oral assertion, the learned advocate for the appellants has submitted that brief written submissions attached with series of decisions and as such, the Court deems it proper to reproduce the summary form Page 4 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER of written submissions which is tendered before the Court.
"1. Appellants state that FIR- I C.R. 9/2017 came to be registered by the present appellant No. 2 Bhadreshbhai Balubhai KoliPatel before Mangrol Police Station of District Surat on 08/02/2017 for the alleged incident dated 07/02/2017 as alleged in the aforesaid FIR ANNEXURE B running page No. 8A to 8F. The same was registered for the alleged offences punishable under Section 307, 143, 147, 148, 149, 323, 504, 506(2), 427 of the Indian Penal Code. The Accused No. 1 is Ranchodbhai Bhagwanbhai Vasava and accused No.3 was impleaded ie. Sureshbhai Kalidas Vasava.
2. Appellants state that as a counterblast respondent No.2 Navinbhai Gomanbhai Vasava got registered the FIR being C.R.No.I-10/2017 dated 8.2.2017 for the alleged offences under Sec. 395, 323, 504, 506(2), 143, 147 148, 149 of the Indian Penal Code, as well as alleged offences under Section 3 (1)(r), 3(2)(5a) of the Schedule Caste and Schedule Tribe (Prevention of atrocity) Act, 1989. The Appellant no. 2 Bhadreshbhai Balubhai KoliPatel is implicated as Accused No. 2 (Annexure - C running page no. 9 and 10 of the appeal memo. The said FIR came to be registered for the alleged incident dated, 7/2/2017 that in connection with aforesaid FIR I C.R. No. 1-9/2017. The present Appellants accuse persons preferred quashing petition wherein initially interim order restraining the investigating officer from taking coercive actions against the appellants came to be passed however subsequently the Hon'ble High Court (Coram- Hon'ble Mr. Justice Umesh A. Trivedi) was pleased to permit the concerned advocate to withdraw the quashing petition however ad interim relief granted by order date 20/2017 was extended for a period of 2 weeks (ANNEXCURE D) PAGE
11.
3. The Appellants prefer Criminal Misc. Application No. 7314 of 2019 before the Hon'ble sessions court Surat, however the same came to be rejected by and order dated 24.12.2019 by the Hon'ble Sessions Court, Surat running page no. 23 to 27 of the appeal memo is the order passed by Hon'ble sessions court.Page 5 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020
R/CR.A/2534/2019 CAV ORDER
4. The present appellants preferred under section of 14 of atrocities seeking Anticipatory Bail by the appellant, accused persons in connections with FlR being NO, C.R. 1-10/2017, which is annexed, Annexure -C on running page no. 9 of appeal memo.
5. Appellant state that appellants do not have antecedents. Appellants are not habitual Criminals and not having any criminal record. Appellants are residing with their family members in the same village and except the alleged incident dated 7/2/2017 from which appellants had also got registered the FIR being CR No. I- 9 OF 2017 which is already annexed as Annexure-B running page 8A and respondent No. 2 got registered the FIR being C.R. No. 1-10/2017, as such there is no dispute between the parties of the said FIRS.
6. So far as the FIR being C.R. No. I-10/2017 (ANNEXURE C) running page no. 9 which is registered by respondent no. 2 Navinbhai Gomanbhai Vasava is concerned the respondent no, 2 complainant did not sustain any injury much less even a simple injury as well. The bare reading of the allegations levelled upon page 9 and 10 the same would make it clear that even allegations of offices punishable under section 395 are not at all being made out as there is no even allegation of putting the complainant in "the fear of instant death, instant hurt and by doing so the complainant was put to such a situation that he would deliver the thing" as required in definition of 390 robbery India Penal Code, 1860.
7. So far as alleged offence under Atrocities Act are concerned following submission may kindly be considered namely as per Annexure-C Page no 9 as per FIR got registered by respondent no.2 the incident was allegedly taken place at the residence of the complainant i.e. not in any public place or not allegedly in a place having public view and thereof prima facie ingredient for the offences punishable under the Atrocities Act do not get attracted.
8. There are no allegations and there are no averments levelled by the complainant to the effect that complainant belongs to Schedule Caste/Schedule Tribe community and therefore the accused persons have committed the same alleged offences, such averments are not at all there Page 6 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER in the FIR.
9. There are no averments in the FIR to the effect that accused persons have committed the alleged offences punishable under the Atrocities Act with an intention to insult or to intimidate the complainant that too with a intent to humiliate in a place with public view.
10. There are no averments to the effect that the accused persons knew that the complainant belongs to SC/ST community.
11. Barer reading of the FIR, the same would make it clear that there are no allegations levelled in the FIR in respect of alleged usage of "Atrocious word".
12. The allegations levelled in the FIR to the effect that accused person had used the word "Dubala" (in Gujarati) however the "Dubala" was never allegedly used with an intention to humiliate and intimidate the complainant, word dubala, mean a weak or feeble person or thin person which cannot be considered as atrocious words.
13. For more than last 3 years and 5 months the appellants have been granted ad interim orders and there is no need of "Custodial Interrogation" of the appellants. Nothing is required to be recovered or discovered and during the period of 3 years and 5 months no Untoward incident has happened and therefore appellants may kindly be granted Anticipatory bail in connection with the said FIR.
14. Advocate of the appellant relies upon the following judgment-
A. Principle laid down by the Hon'ble Supreme Court in Kamlesh vs. State of Rajasthan reported in 2019 CrLR (SC) 874: Even in quashing petition is rejected on merits the Anticipatory Bail may be considered and heard on its own merits.
B. The Hon'ble Gujarat High Court in Parbat Dahyabhai Rabari vs. State of Gujarat reported in,2010JX(GUJ) 946 laid down the following Principle: allegations and averments lack the basic ingredients of intentional Page 7 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER humiliation in public view. Head note and para 32.
C. The Hon'ble Supreme Court in Dinesh (@ Buddha vs. State of Rajasthan reported in 2006(3) SCC 771 held that "there are no averments to the effect that offence of atrocities are committed because the complainant is a member of SC /ST community. (Head Note and para No. 15 &16.) D. The Hon'ble High Court of Gujarat in Pravinbhai Gordhanbhai Patel vs. State of Gujarat reported in 2020(1) GLR 297 - there are no averments of intentional insult or intimidation in the FIR. (head note & para 11, 12, 13).
E. The Hon'ble High Court of Gujarat in Sandip @Sanjay @ Tako Chhaganbhai Ughreja vs State of Gujarat reported in 2016 JX(Guj)60 held that to attract the provisions of Section 3(2)(v) of the Atrocities Act, sine qua non is that the victim should be a person who belongs to a schedule caste or schedule tribe and that the offence under the Indian penal code is committed against such victim on the basis that such a person belongs to a Schedule caste or schedule tribe in the absence of such ingredients, no offence under section 3(2)(v) of the Atrocities Act.
F. Appellant also relies upon the judgment passed by the Hon'ble Supreme Court in Prithvi Raj Cahuhan vs Union of India reported in 2020JX(SC)144 held that Anticipatory Bail is maintainable in atrocities offences. (Head Note and para 10,11, and 31.) G. The Hon'ble Supreme Court of India in Union of India vs. State of Maharashtra reported in AIR 2019SC 4917. Para 49& 57."
7.1 Mr. N.K. Majmudar, learned advocate for the appellants has further contended that uptill now the present appellants are under protection and no untoward episode has taken place and these appellants have co-operated with the investigation and are not hardcore criminals. The learned advocate for the appellants has further submitted that ex-facie looking to the assertion made Page 8 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER in the complaint, offence under Section 397 is also not at all attracted and apart from that, even basic offence of Atrocity Act is not at all inferred. The word 'Dubla' is merely in the form of weak person and even if conveyed, cannot attract provisions of the Atrocity Act. In addition to this, it has been conveyed that there are no criminal antecedents of these appellants and in absence of any specific allegations and assertion, offence cannot said to have been committed which can attract the provisions of Atrocity Act. In addition to it, it has further been contended that these allegations leveled in the complaint are not only not attracting the provisions of the Atrocity Act, but even custodial interrogation is not required and when that be so, anticipatory bail deserves to be extended.
7.2 To substantiate his contentions, the learned advocate for the appellants, has relied upon series of decisions which are narrated hereinafter.
(1) Dinesh @ Buddha v. State of Rajasthan, reported in 2006 (0) AIJEL-SC-36965.
(2) Parbat Dahyabhai Rabari v. State of Gujarat, reported in 2010 (0) AIJEL-HC-224346.
(3) Sandip @ Sanjay @ Chhaganbhai Uhreja v. State of Gujrat, reported in 2016 (0) AIJEL-HC- 233882.
(4) Union of India v. State of Maharashtra, reported in 2019 (0) AIJEL-SC-64961.
Page 9 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020R/CR.A/2534/2019 CAV ORDER (5) Pravinbhai Gordhanbhai Patel v. State of Gujarat, reported in 2019 (0) AIJEL-HC-240972.
(6) Kamlesh v. State of Rajasthan, reported in 2019 (0) AIJEL- SC-65807.
(7) Prithvi Raj Chauhan v. Union of India, reported in 2020 (0) AIJEL-SC-65745.
(8) A decision rendered by this Court in Criminal Appeal No.596 of 2020, decided on 6.7.2020.
8. As against this, Mr.J.K. Shah, learned Additional Public Prosecutor appearing for the respondent - State has contended that a bare look at the complaint itself, it is evident that serious offence is committed which can definitely attract provisions of Atrocity Act. The manner in which 20 persons have rushed down to the spot of the complainant, beaten up, used such kind of language, in public domain, would clearly, indicate that offence is made out. Apart from that, a report is submitted by learned Additional Public Prosecutor dated 26.07.2020 of the Deputy Police Superintendent, (SC & ST Cell) Surat Rural, in which it has been asserted that initially the offence which has been committed is already registered before Mangrol Police Station being C.R. No. II-34 of 2017 and that also is under the Atrocity Act and additionally, under Sections 504 and 506(2) of the Indian Penal Code and this is because of the fact that wife of the complainant - Daxaben, who happens to be Sarpanch belonging to a particular caste which is very well within the knowledge of these appellants and when being a Sarpanch, she was prevented Page 10 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER from conducting the public work and this subsequent offence appears to have been committed. The narration is already mentioned about the said incident and thereby, has reiterated that offence prima facie is attracted. Additionally, as per the report, learned Additional Public Prosecutor has submitted that this Bharatbhai Ramubhai Patel and Naredrabhai Gomanbhai Patel, both have in past also committed such kind of offence which can attract Atrocity Act in the year 2011 in the village. So, the submission made by Mr. Majmudar, learned advocate for the appellants that there are no criminal antecedents, is also far from truth. Additionally, learned Additional Public Prosecutor has further submitted that this kind of very contentions have been raised before the Coordinate Bench in a petition for quashing of the complaint. But, despite these contentions, petition for quashing was not entertained by Coordinate Bench. As a result of this, these very appellants have withdrawn the petition for quashing and as such, prima facie, offence appears to have been established against the appellants and when that be so, by virtue of Section 18 of the Act, anticipatory bail may not be granted and the learned trial Judge has rightly exercised the discretion in refusing the anticipatory bail. Learned Additional Public Prosecutor has submitted that only in rarest of rare case, whether ex-facie no offence is made out, even from the bare assertion and if it appears that the said complaint is amounting to abuse of process or with mala fides or such exceptional circumstance, only in rare case, the Court can consider the request of anticipatory bail, otherwise, the real object of Section 18 is required to be preserved and that has been rightly preserved by the court below.
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9. In addition to what has been submitted by learned Additional Public Prosecutor, Mr.Shethna, learned advocate appearing for respondent No. 2, has vehemently objected and has contended that a bare reading of the complaint is itself indicating that offence is made out and all these contentions which have been raised by the learned advocate for the appellants, have been raised before the Coordinate Bench in a petition for quashing and the Coordinate Bench having not satisfied, the present appellants themselves, have withdrawn the petition for quashing and as such, prima facie, the offence is made out, otherwise, petition for quashing might have been entertained by the co-ordinate Bench. Mr. Shethna, learned advocate, has also given some bullet points in written form in two cognate matters, which are taken on record and since the same having been pressed into service, are incorporated hereinafter :-
"((FIR in Crim. Appeal 2537/19 filed by the wife, is the cause of action why FIR required to be filed in Crim. Appeal 2434/19 later on my husband. Therefore second matter requires to be heard first)) Bar of Sec. 18 and Sec. 18A(2) of Atrocity Act against granting "Anticipatory Bail" in Atrocity Cases.
Case of Subhash Kashinath Mohajan v. State of Mah. (20- 3-2018) 2018.(6) SCC 454 reviewed and recalled in Union of India State of Mah (1-10-2019) AlR 2019 SC 4917 (relevant paras 6 to 9).
Challenge to Sec. 18A of Atrocity Act rejected by Hon'ble Supreme Court in Prithvi Raj Chauhan y. Union of India (10-02-2020YAIR 2020 SC 1036 (relevant paras 4(47 to
51), 4(57), 5, 6, 32, 33 "what legislature cannot do legitimately cannot be done by interpretative process by the courts".Page 12 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020
R/CR.A/2534/2019 CAV ORDER "32 I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."
Vilas Pandurang Pawar v. State of Mah 2012 (8) SCC 795, para 9;
"The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain the application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, the scope for an appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence. Swaran Singh State 2008 (8) SCC 435 "PUBLIC VIEW"
(relevant paras. 22 to 31)
27. Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of section 3()(S) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression public place', but instead the expression used is in a place within public view'. In our Page 13 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER opinion, there is a clear distinction between the two expressions.
28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a Chamar) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression place within public view' with the expression public place'. A place can be a private place but yet within the public view. On the other hand, a pub- lic place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other lo- cal body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.
Prima Facie case because;
1. Quashing petitions earlier withdrawn, order at Annex. D in Crim. Appeal 2534/2019, and, order at Annex. B in Crim. Appeal 2537/2019.
2. Casteist abuse "dubda" is done in public view. There- fore sec. 3(1)(s) of Atrocity Act is attracted.
3. Complainants are insulted, intimidated to humiliate them in public view. Therefore sec. 3(1)(r) of Atrocity Act is attracted.
4. In the FIR in Crim. Appeal 2534/19 clothes of com- plainant are torn, he is physically abused, his money is stolen. Therefore sec. 3(2)(va) of Atrocity Act is attracted.
5. In the FIR in Crim. Appeal 2537/19 the complainant is Page 14 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER woman Sarpanch of Ranakpor Gram Panchayat. She is intimidated and prevented from doing her work, road con- struction for village. Therefore sec. 3(1)(m) of Atrocity Act is attracted.
Additional Submissions;
1. Irrelevant and misleading submissions made by Ac- cused.
(i) In the application at Annex. A in Crim. Appeal 2534/19, none of the complainants/first informants are named.
(ii) In the FIR at Annex. B in Crim. Appeal 2534/19, none of the complainants/first informants are named.
(iii) How above two are connected with the FIR's in ques-
tion?
Kamleshpuri Ashokpuri Goswami v. State of Guj. - Judgment delivered by Hon'ble Justice A.P. Thakar on 28-3-19 in Criminal Appeal No. 558 of 2019.
Identical case as current ones where since casteist abuse was given, a prima facie case was made out. (relevant paras 3, 9, 10) Azimkhan Hamidkhan Pathan v. State of Guj. - Judg- ment delivered by Hon'ble Justice B.N. Karja on 29- 10-2018 in Criminal Appeal 1498/2018.
Guidelines for granting Anticipatory Bail in Atrocity Mat- ters. (relevant paras 15 to 18)."
9.1 By raising the aforesaid contentions, a specific objection is raised that even the law is also amply made it clear by the Apex Court right upto 2020 that in which circumstance powers under Section 438 of the Code of Criminal Procedure can be exercised and as such looking to these overall material on record, and peculiar circumstance, no error is committed by the Court below Page 15 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER in any form.
10. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstances are not possible to be unnoticed by this Court;
(1) At first point of time, as it conveyed to the Court, the wife of the complainant i.e. Daxaben, who happened to be the Sarpanch of Gram Panchayat, was prevented from inspection and development of public road in the village and while carrying out the said public work, she was mercilessly dealt with by the accused persons and in the public domain on the public road in the presence of several persons, such kind of words have been used which has resulted into filing of a complaint by her, which was numbered as II-C.R.No.34 of 2017 by invoking provisions of Atrocity Act. In the said complaint also, a quashing petition being Criminal Misc. Application No.6223 of 2017 was filed by the said accused persons, which came to be withdrawn by the accused persons after exhaustive hearing on 11.12.2019.
(2) Further, it appears that the present complaint in question which has been filed on 8.2.2017 being I-C.R.No.10 of 2017 is appearing to be a furtherance of earlier complaint and at about 8.00 p.m. in the night, when the complainant and his wife, who happened to be the Sarpanch, both were sitting at house, since relatives have come, some 20 persons in the mob came to the spot and committed the alleged offence which is specifically narrated in the complaint. Now, this complaint was requested to be quashed by the present appellants but, the said effort has not Page 16 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER been successful since after hearing at length, the said quashing petition was withdrawn by the learned advocate being Criminal Misc. Application No.5160 of 2017. So, from the aforesaid circumstances, it is quite visible that this majority contentions which have been raised by Mr.N.K.Majmudar, learned advocate, that offence is not made out; the words which have been used cannot attract the provision of the Atrocity Act and prima facie; the complaint itself is abuse of process of law, are the contentions which have been gone into, examined and not found favour with the appellants and it is not in dispute that this anticipatory bail under Section 438 of the Cr.P.C. is pressed into service before the court below after disposal of the said quashing petition. Hence, these circumstances are not possible to be unnoticed by this Court.
(3) Further, it appears that on one breath, contentions about applicability of Atrocity Act and whether complaint is with malafides or abuse of process of law aspects have not been accepted by High Court in Section 482 of the Cr.P.C. petition and other way, appellants are expecting to examine and deal with for claiming anticipatory bail under Section 438 of the Cr.P.C., this in opinion of this Court is impermissible.
11. Now, in the light of aforesaid peculiar circumstance, the recent law which has been propounded by the Apex Court after considering the series of previous decisions in the context of exercise of power under Section 438 of the Cr.P.C., the Court would like to quote some relevant observations from the recent decision.
Page 17 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020R/CR.A/2534/2019 CAV ORDER 11.1. In addition to judgment cited by Mr. Shethna, recent decision of Apex Court worth to be taken note of.
11.2 In case of Prithvi Raj Chauhan v. Union of India, reported in AIR 2020 SC 1036, the relevant paragraphs are 4 (47 to 51), 4(57), 5, 6, 32 and 33 but the most relevant paragraph is Para.32 which reads as under:
"32. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre- arrest bail would defeat the intention of Parliament."
12. The aforesaid observations are clearly indicative that the Court has to balance the two interest i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and further observation that liberal use of the power to grant pre- arrest bail would defeat the intention of Parliament and as such, this recent pronouncement is sufficient enough to indicate that Section 438 of Cr.P.C. powers are to be exercised sparingly and only in exceptional circumstance where no prima facie offence is made out as shown in the FIR and further also, that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law.
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13. Now, if these observations are to be considered in the context of peculiar background of present fact where it is visible from the record that in a petition for quashing, all these contentions which are now made by learned advocate in present appeal, must have been canvassed and despite the petition for quashing was not entertained. So, the question only left for consideration is whether Section 438 of the Cr.P.C. powers can be exercised or not. The answer appears to be clearly in negative.
14. Additionally, it appears to the Court that when the High Court in inherent jurisdiction under Section 482 of the Cr.P.C., has not found favour with the appellants and the complaint was assumed to be not an abuse of process of law and as such, even protection which was granted came to be vacated, in such circumstance it is obvious that the learned Sessions Judge cannot examine merit about complaint and come to a different conclusion that complaint is abuse of process, no prima facie case is made out and then, exercised the powers under Section 438 of the Cr.P.C. and as such, it appears to this Court that no error is committed by the court below.
15. Further, this Court is in appeal under Section 14A of the Atrocity Act, is examining the validity of an order passed by the court below and as such, keeping that appeal scope in mind, this Court has to examine as to what error appears to have been committed by the court below. As a result of this, under such exercise of jurisdiction, while reading the order passed by the court below, it clearly visible that there is an application of mind by the court below while passing the impugned order and Page 19 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER further, the court below has also taken into consideration the disposal of the petition for quashing and in that eventuality, it is not open for the court below now to assume that complaint ex- facie is nothing but an abuse of process of law and thereby, take a limited permissible view to exercise the jurisdiction under Section 438 of the Cr.P.C. In considered opinion of this Court, looking to this peculiar background of fact, the learned Sessions Judge has not committed any error. The reason assigned by the learned Judge contained in Para.6 of the impugned order, deserves to be quoted hereinafter :
"6. In view of the above submissions and taken into account police papers as well as affidavit executed by the investigating officer, it is evident that incident pertains to the year 2016. However, since, the applicants approached the Hon'ble Gujarat High Court under Section 482 of Cr.P.C. and were granted interim protection by the Hon'ble High Court, the applicants were not arrested by the investigating agency and thereafter the quashing petition filed by the applicant was withdrawn on 11.12.2019 and the interim protection granted was further extended for a period of week. It is also evident from the police papers that the complainant and the applicants were known to each other prior to incident and the complaint. There is a mention of applicants having referred to complainant as 'Dubra'. Therefore, it cannot be said that no case under the Atrocity Act, is made out. The argument that the use of word 'Dubra' was used to refer to the complainant as a physically infirm person, cannot be appreciated at this stage. Hence, taken into account the nature of accusations as well as the bar created Section-18 of the Prevention of Atrocity Act, this court is not inclined to exercise the discretion of granting anticipatory bail to the present applicants...."
15.1 Even independently also, while reading the FIR as it is, it is not possible to assume at this stage that complaint is not making out case of applicability of the Act nor Court at this stage Page 20 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER can jump to a conclusion that its either malafide or abuse of process of law.
16. Additionally, in the background of aforesaid circumstance, this Court has also considered the report submitted by the learned APP which has clearly indicated that out of these 5 accused persons, 2 accused persons i.e. two of the present appellants have committed similar kind of offences attracting the provision of the Atrocity Act somewhere in the year 2011 for which a complaint was lodged before the Mangrol Police Station being I-C.R.No.58 of 2011 and, therefore, it is incorrect on the part of Mr.N.K.Majmudar, learned advocate, that these appellants are not having any criminal background.
17. Apart from this, the bare assertion in the complaint is rightly considered by the court below and keeping in view the intent of Legislature, there is no error committed by the court below in passing the order. In the background of aforesaid circumstances, the judgments which have been relied upon and tried to be pressed into service, and the scope of Section 438 of the Cr.P.C. which is considered by the Court as indicated above and as such, said judgments which have been dumped on record by learned advocate, are of no avail since the latest pronouncement would clearly indicate that peculiar background of fact is not permitting the Court to exercise power under Section 438 of the Cr.P.C.
18. Additionally, one another decision is pressed into service of Coordinate Bench delivered in Criminal Appeal No.596 of 2020, decided on 6.7.2020. But going to the details of the said case, it Page 21 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER appears that the facts are distinct in which the appellant was not knowing that deceased person was belonging to SC/ST category or not and, therefore, in such ignorance, the offence alleged to have been committed. This is clearly visible from Para.9 of the aforesaid decision of the Coordinate Bench. Whereas here in the instant case, on a previous hours, the wife of the complainant being Sarpanch was dealt with, prevented from carrying out public work in the public domain and was insulted and humiliated, for which a specific complaint is filed and the present incident has taken place at the instance of appellants since the wife had lodged the atrocity complaint and, therefore, to curb the voice of lady Sarpanch belonging to a particular caste and to see that the said complaint can be done away, this offence is committed by the present appellants with the aid and assistance of 20 persons and with full knowledge as it appears. Hence, no power can be exercised to intercept the process of investigation in any form. The powers can be exercised only in case where prima facie, no material exists or no prima facie case is made out about applicability of provision of the Act or is an abuse of process of law, only in that circumstance, the bar created by virtue of Sections 18 and 18A would not apply. But here the situation is converse. On the contrary, the High Court in petition for quashing appears to have examined the prima facie applicability of case and the same came to be withdrawn and disposed of, no error appears to have been committed by the court below. Hence, all contentions which are raised by Mr.N.K.Majmudar, learned advocate, are of no assistance to the appeals.
19. Additionally, at this stage, learned advocate Mr. Shethna Page 22 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER has relied upon one quoting from website of 'Divya Bhasker' dated 2.7.2010, in which this word 'Dubla' is stated to be a word of 'insult' and therefore, the department of Government has in a circular directed to use the word 'Halpati' or 'Talavia' in place of 'Dubla'. This is indicative of the fact that when the Government has also thought it fit to disallow such word to be used, there is hardly any reason for this Court to jump to a conclusion that usage of this word cannot attract the provisions of the Atrocity Act. At the best, this can be a point of trial, which can be agitated and examined at an appropriate stage.
20. Additionally, at this stage, learned advocate Mr. Shethna has relied upon one quoting from website of 'Divya Bhasker' dated 2.7.2010, in which this word 'Dubla' is stated to be a word of 'insult' and therefore, the department of Government has in a circular directed to use the word 'Halpati' or 'Talavia' in place of 'Dubla'. This is indicative of the fact that when the Government has also thought it fit to disallow such word to be used, there is hardly any reason for this Court to jump to a conclusion that usage of this word cannot attract the provisions of the Atrocity Act. At the best, this can be a point of trial, which can be agitated and examined at an appropriate stage.
21. In view of above, the present Criminal Appeal being meritless, the same is dismissed and the interim relief which has been granted earlier, shall stands vacated.
22. Upon pronouncement of the judgment, Mr.N.K.Majmudar, learned advocate for the appellants, has requested that since right from the beginning, the interim relief is operative, the appellants would like to approach the higher forum. So, for some Page 23 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020 R/CR.A/2534/2019 CAV ORDER reasonable period, the operation of the present order may not be effected by continuing interim protection.
To this request, after initial objection against this extension of time, the request is left it open to the Court's discretion.
Accordingly, the Court is of the opinion that from the beginning, the interim relief is operating in present proceedings, and while disposing of quashing petition also, time was granted, the Court is inclined to consider the request in part and accordingly, two weeks' time is granted to the appellants so as to enable them to approach the higher forum.
(ASHUTOSH J. SHASTRI, J) SRILATHA Page 24 of 24 Downloaded on : Mon Aug 31 22:21:11 IST 2020