Gujarat High Court
Champakbhai Lalubhai Patel vs State Of Gujarat on 5 April, 2019
Author: A. P. Thaker
Bench: A. P. Thaker
R/CR.A/419/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 419 of 2019
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CHAMPAKBHAI LALUBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR P B KHAMBHOLJA(5730) for the Appellant(s) No. 1,2
MR RAJESH R DEWAL(1024) for the Opponent(s)/Respondent(s) No. 2
MS MOXA THAKKAR, ADDL PUBLIC PROSECUTOR for Respondent No. 1
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 05/04/2019
ORAL ORDER
1. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act" for short) at the instance of the appellants - original accused for anticipatory bail in connection with the FIR being C.R. No.I-06 of 2019 registered with Vapi Town Police Station, Valsad for the offences punishable under Sections 325, 506(2) and 114 of the Indian Penal Code and Section 3(2) and 5(A) of the Atrocity Act.
2. It is the case of the appellants that one FIR came to be registered before Vapi Town Police Station by the respondent No.2 herein for the aforesaid offences on the allegation that the complainant has made several applications against the present appellants and has also filed writ petition before the High Court and due to that grievance, when the complainant was leaving his office, and shutting the shutter of his office, at that time, the petitioners have used filthy language and abused on his caste and Champakbhai caught hold of him. His son started beating the complainant with a stick, wherein the complainant got injured and on medical examination, it was found that he had sustained fracture Page 1 of 9 R/CR.A/419/2019 ORDER on left hand last finger and from the hospital, he has filed the complaint.
3. It is contended by the appellants that they are innocent and they have preferred anticipatory bail application before learned Sessions Court, being Criminal Misc. Application No.356 of 2019, which has been rejected by 3rd (Ad-hoc) Additional District & Sessions Judge, Valsad on 13.2.2019. According to them, they are innocent and they have not committed such an offence and the complainant, being an advocate, has managed the police and other authorities and he is forcing the appellants to sell out the properties in his favour and due to that, a false FIR against the them is filed. It is contended that they are not likely to run away. They have prayed to allow the appeal.
4. The complainant has filed objection on affidavit and has opposed the present appeal and has stated that due to recent amendment in the provisions of the Atrocity Act, i.e. sub-section (2) of Section 18(A), applicability of Section 438 is specifically barred along with the applicability of judgment and order or direction by any Court. It is also contended that the present appellants have mens rea of doing illegal act and activity and they have committed the offences as alleged in the FIR and there is a prima facie material. It is also contended that the appeal is devoid of any merit and may be rejected. He has narrated the entire controversy between the parties and filing of various petitions by him against the present petitioners.
5. Heard learned advocate Mr. Khambolja for the appellants, learned Additional Public Prosecutor Ms. Moxa Thakkar for the respondent No.1- State and learned advocate Mr. Rajesh Dewal for the respondent No.2- original complainant.
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6. Learned advocate Mr. Khambolja has read out the contents of the appeal and has stated that the appellants and the complainant are neighbour in the same building and cross-complaint filed by the appellants is not registered by the police. He has also contended that there is a dispute going on between the parties and the contents alleged in the FIR lodged against the present appellants and the allegations made therein are doubtful. He has prayed to allow the appeal.
7. Learned Additional Public Prosecutor Ms. Moxa Thakkar for the State has submitted that there is a dispute going on between the parties and on the date of incident, chapter case was filed and due to that, the present appellants have assaulted the complainant and he has got fracture injury, which is supported by the injury certificate and there is a prima facie evidence of commission of the offence under the Atrocity Act and therefore, the anticipatory bail application may be rejected.
8. Learned advocate Mr. Rajesh Dewal for the complainant while supporting the arguments of learned Additional Public Prosecutor has referred to the papers made available to the Court and has stated that there is a motive of the present appellants in assaulting the complainant and causing harassment to him and it is also contended that the present appellants have got illegal electric connection and installed heavy machineries, which are causing vibration to the building, for which the complainant has objected and filed various applications before the concerned authorities and due to that facts, the present appellants have assaulted the complainant and has used abusive language against the caste of the complainant and has also stated that in view of the amendment made in the Atrocity Act, especially Section 18(A), anticipatory bail application may not be entertained and it should be rejected. It is also contended that the punishment for the offences alleged in the FIR is of 7 years.
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9. In re-submission, learned advocate Mr. Khambolja for the appellants has submitted that considering the factual aspects of the case, Section 325 of the Indian Penal Code will not be applicable and as the incident had happened in sudden provocation, Section 325 of the Indian Penal Code is not applicable and he has prayed to allow the appeal.
10. The Court has taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40, in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in (2008)12 SCC 531 and in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another reported in AIR 2018 SC 1498.
11. Learned advocate for the complainant, who is an advocate, has heavily relied upon the amended Section 18(A) of the Atrocity Act, which has been added by the legislature by Amendment Act of 2018. The said Section reads as under:-
"18A. (1) For the purposes of this Act,--
(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act,notwithstanding any judgment or order or direction of any Court.".
11.1. For inserting this new provision of Section 18(A), the statement of objects and reasons thereof is necessary to be carved out. The statement of objects and reasons, which has been appended with the said Bill No.140 of 2018, is as under:-
Page 4 of 9R/CR.A/419/2019 ORDER STATEMENT OF OBJECTS AND REASONS The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (said Act) was enacted with a view to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes and to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. The said Act was amended in 2015 with an objective to deliver greater justice to members of the Scheduled Castes and the Scheduled Tribes.
2. In a recent judgment, the Supreme Court has held that a preliminary enquiry shall be conducted by a Deputy Superintendent of Police to find out whether allegations make out a case under the said Act before registering a First Information Report relating to commission of an offence and the approval of an appropriate authority shall be obtained before arrest of any person in connection with such offence.
3. However, the provisions of the Code of Criminal Procedure, 1973 provide that every information relating to commission of an offence, if given, shall be recorded and where the investigating officer has reason to suspect the commission of an offence, he can arrest a person and there is no requirement of conducting a preliminary enquiry before recording of any such information or obtaining of an approval from any authority before arresting any person. Moreover, such preliminary enquiry and approval would only delay the filing of a charge sheet.
4. The principles of criminal jurisprudence and section 41 of the Code of Criminal Procedure, 1973 as interpreted in several judgments, implies that once the investigating officer has reasons to suspect that an offence has been committed, he can arrest an accused. This decision to arrest or not to arrest cannot be taken away from the investigating officer.
5. In view of the above, it is expedient in the public interest that the provisions of the Code of Criminal Procedure, 1973 be made applicable in respect of registration of First Information Report relating to commission of an offence or arrest of any person without any preliminary enquiry or approval of any authority, as the case may be.
6. The Bill seeks to achieve the above objects.
11.2. In view of the statement of objects and reasons for the amendment of the Atrocity Act, it appears that due to the recent judgment of the Supreme Court holding that preliminary inquiry Page 5 of 9 R/CR.A/419/2019 ORDER shall be conducted by Deputy Superintendent of Police to find out whether the allegations made out a case under the said Act before registering an FIR relating to the commission of an offence and approval of appropriate authority shall be obtained before arrest of any person in connection with such offence, this amendment is carried out in the Atrocity Act by inserting Section 18(A) thereof. It also appears from the statement of objects and reasons coupled with the provisions made in sub-Section (2) of Section 18(A), that this provision of sub-section (2) has been inserted only with a view to counter the directions issued by the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another (supra), wherein in conclusion at para 83, the Apex Court has held as under:-
83. Our conclusions are as follows:
i) Proceedings in the present case are clear abuse of process of court and are quashed.
ii) 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. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);
Iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded.
Such reasons must be scrutinized by the Magistrate for permitting further detention.
iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
The above directions are prospective.
Page 6 of 9R/CR.A/419/2019 ORDER 11.3. Thus, so far as the conclusion of para 83(i) and (ii) is concerned, there is no object and reason given for nullifying those observations.
11.4. It is also pertinent to note that the Union of India has also preferred review petition against the aforesaid judgment, being Review Petition (Criminal) of 2018 (Diary No.12243 of 2018) in Criminal Appeal No.416 of 2018, wherein, review has been sought for the conclusion at para 83(i) to (v). But, during the course of argument, the Supreme Court has considered only the directions at para (iii) to (v) of the original decision. Thus, even on reading of the amended provision of Section 18(A) coupled with the statement of objects and reasons for such amendment, it is apparent that the legislature has only made this amendment regarding nullifying the conclusion of the Apex Court in para 83(iii) to (v). Therefore, if in a given case, no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide, then in that case, there is no absolute bar against grant of anticipatory bail in cases under the Atrocity Act.
12. On perusal of the complaint, it appears that the appellants have used surname of the complainant while addressing him at the time of incident. Whether addressing the person by surname falls under the provisions of the Atrocity Act is doubtful. It also appears from the statements of the witnesses that there is a doubt as to applicability of the offences under the Atrocity. Therefore, when there is a doubt as to applicability of the provisions of the Atrocity Act, the amended provisions in the Atrocity Act may not be applicable ipso facto.
13. Further, considering the entire facts of the present case, it appears that there is a dispute between the neighbours and there is enmity between the parties. It also appears that the appellants are not likely to run away and the interest of the prosecution can be Page 7 of 9 R/CR.A/419/2019 ORDER secured by imposing certain conditions on the appellants.
14. Having considered the factual aspects of the case, this Court is of the opinion that the provisions of Section 438 of the Code of Criminal Procedure can be invoked in the present case.
15. In the result, the present appeal is allowed and the order dated 13.2.2019 passed in Criminal Misc. Application No.356 of 2019, by 3rd (Ad-hoc) Additional District & Sessions Judge, Valsad on 13.2.2019 is quashed and set aside and it is directed that in the event of appellants herein being arrested pursuant to FIR registered as C.R. No.I-06 of 2019 registered with Vapi Town Police Station, Valsad, the appellants shall be released on 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 appellants shall :
(a) cooperate with the investigation and make available for interrogation whenever required;
(b) remain present at concerned Police Station on 12.04.2019 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 addresses 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 Page 8 of 9 R/CR.A/419/2019 ORDER 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 appellants. 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, 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.
17. 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.
18. The appeal stands disposed of, accordingly. Direct service is permitted.
(A. P. THAKER, J) OMKAR Page 9 of 9