Gujarat High Court
Chandrapal Prabhatjee Khatik vs State Of Gujarat on 13 September, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.A/143/2020 ORDER DATED: 13/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 143 of 2020
With
R/CRIMINAL APPEAL NO. 246 of 2020
With
R/CRIMINAL APPEAL NO. 248 of 2020
With
R/CRIMINAL APPEAL NO. 253 of 2020
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CHANDRAPAL PRABHATJEE KHATIK
Versus
STATE OF GUJARAT
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Appearance:
MR YN OZA for MR MN MARFATIA(6930) for the Appellant(s) No. 1
MR MANISH J PATEL(2131) for the Opponent(s)/Respondent(s) No. 2
MR JK SHAH, ADDL PUBLIC PROSECUTOR(2) for Respondent(s) No. 1
MR PRAVIN GONDALIA for Respondent No.2 in Cri. Appeal No.253 of 2020
MR NISHITH K JOSHI for Respondent No.2 in Cri. Appeal No.248 of 2020
MR JAYDEEP M SHUKLA for Respondent Nos.2-3 in Cri. Appeal No.246 of 2020
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 13/09/2021
COMMON ORAL ORDER
1. This group of Criminal Appeals is filed by the original complainant under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989 for quashing and setting aside the impugned orders whereby the Court below was pleased to pass an order under Section 438 of the Code of Criminal Procedure by granting anticipatory bail to the respective accused persons.
2. All these appeals are arising out of the very same incident and complaint and are filed for quashing and setting aside the respective orders passed by the Court below for grant of anticipatory bail. Learned advocates appearing for the respective sides have requested to take up all these Criminal Appeals conjointly and decide the same by passing a common order since the substantial issues are same on facts and law and as such, upon this request made by respective Page 1 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 learned advocates appearing for both the sides, the Court has taken up the appeals for hearing by treating Criminal Appeal No.143 of 2020 as a lead matter and for sake of convenience, since the very same incident has given rise to all these Criminal Appeals, facts are taken from the lead matter, i.e. Criminal Appeal No.143 of 2020.
3. The facts giving rise to the present proceedings are that the appellant- original complainant is an advocate by profession and resides at the address mentioned in the cause title. The incident took place on 26.12.2019 when the appellant reached home from working in the evening and after sometime, went out to get a pack of biscuits from the shop situated just opposite to the society. It is the case of the appellant complainant that while going towards the shop, respondent No.2 and around eight accused persons were standing in a group near the common plot of the society, made a derogatory comment and insulted pertaining to the caste to which the appellant is belonging. With a view to see that no quarrel can take place, the appellant initially ignored the comments and went to purchase biscuits and after purchasing, while returning home, once again respondent No.2 along with other accused persons made derogatory comments, insulted the caste of the appellant and when the appellant requested the respondent No.2 and other accused persons not to make such derogatory caste remarks, respondent No.2 along with other persons thereafter, attacked the appellant and on account of fear, the appellant went inside the home. It is the case of the appellant that after that, respondent No.2 and other accused persons followed the appellant to his home and after forcibly entering in the home, respondent No.2 and other accused persons began beating the appellant and all while abusing and insulting the caste of the appellant, the accused persons were armed with sharp edged iron rods with which, the appellant was attacked and he sustained injuries as well. On account of such beating up of the appellant, lot of people gathered and later on, respondent No.2 along with other accused Page 2 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 persons ran away from the spot by giving threat to the appellant of dire consequences if the appellant reports the matter to the authorities.
4. On account of such incident, which had happened with the appellant, the appellant along with his friends went to Vadaj Police Station and gave a complaint/ FIR being C.R. No.I-238 of 2019 on 27.12.2019. While giving the complaint, the appellant has provided photographs as well as video of the incident to the investigating officer. The appellant has identified the accused persons from the photographs and CCTV footage, also provided the names of witnesses who are present during the incident and have their statements as well.
5. It is the case of the appellant that the respondent No.2 filed an application, being Criminal Misc. Application No.9276 of 2019, before learned Additional Sessions Judge, Court No.29, City Sessions Court, who was pleased to grant anticipatory bail to respondent No.2 and it is this order of grant of anticipatory bail, the appellant is constrained to file the present Criminal Appeal under Section 14A of the Atrocity Act for seeking quashment of the order dated 4.1.2019.
6. Similarly, in other Criminal Appeal, namely Criminal Appeal N.248 of 2020, with regard to the very same incident, learned Judge was pleased to grant anticipatory bail vide order dated 20.1.2020 in Criminal Misc. Application No.257 of 2020 to another accused person named Manan Girishkumar Gajjar.
7. So far as Criminal Appeal No.246 of 2020 is concerned, same is filed against grant of anticipatory bail to two accused persons, named Karan Bhagat and Viren H. Kadia, vide order dated 29.1.2020 passed in Criminal Misc. Application No.290 of 2020.
8. Whereas, in Criminal Appeal No.253 of 2020, the appellant has Page 3 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 challenged the order of grant of anticipatory bail to the accused persons, i.e. respondent Nos.2 to 7 of the present Criminal Appeal, in which anticipatory bail is granted vide order dated 16.1.2020 passed in Criminal Misc. Application No.186 of 2020.
9. So with respect to the very same incident and complaint, all respective accused persons have been granted anticipatory bail under Section 438 of the Code of Criminal Procedure, which has given rise to the aforesaid Criminal Appeals who are taken up for hearing.
10. The lead appeal has been admitted by the Court on 28.1.2020 and after process having been served upon the respective accused persons in all these criminal appeals, the same have been taken up for hearing.
11. Learned advocate Shri Yatin Oza appearing with learned advocate M.N. Marfatia for the appellant- original complainant has vehemently contended that present proceedings are not for the purpose of cancellation of bail but are against the very grant of anticipatory bail and as such, this thin-line of distinction deserves to be considered. It has been vehemently submitted that bare reading of the FIR is clearly indicating that with connivance with each other, the accused persons have committed a serious offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short, 'the Atrocity Act') and have given threat of dire consequences. Specific allegations are made in the FIR attracting the specific terms and what was done with the appellant- complainant, said circumstances and the allegations are clearly attracting the provisions of the Atrocity Act and as such, learned Judge could not have ignored the allegations which are prima facie establishing the offence being committed under the Special Act. Shri Oza has submitted that the reasons which are assigned by the Court below while granting anticipatory bail under Section 438 of the Code of Criminal Procedure, are not sufficient or cogent enough to sustain the Page 4 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 ultimate conclusion. Catena of decisions have clearly indicated that there is a specific embargo under Section 18 of the Atrocity Act and further, by virtue of insertion of Section 18A, a proviso has made it clear that moment, prima facie allegations are attracting the offence, no Court shall exercise jurisdiction under Section 438 of Cr.P.C. Learned Judge has committed a serious error in exercising the jurisdiction which is not vested by virtue of specific provisions under the special Statute. According to Shri Oza, the reasons which are assigned by the Court below are perverse to the record and cannot be said to be just and proper reasons. The judgment which has been relied upon by learned Judge is not applicable in the background of the present facts and hence the very grant of anticipatory bail is erroneous. This error deserves to be corrected. Shri Oza has submitted that there is a clear object for which Section 18 has been incorporated and further realizing the situation, which is prevailing, even the legislature has thought it fit to incorporate Section 18A under the Atrocity Act and this specific provision ought not to have been ignored so lightly by the Trial Court. The very narration of incident in specific terms clearly establishes that these accused persons in connivance to each other have committed a serious crime. Simply because a particular word is not mentioned, would not be a ground to ignore the specific ban under Sections 18 and 18A of the Atrocity Act. According to him, in no uncertain terms, the complainant has clearly mentioned that these accused persons have in the society uttered a specific word against the caste of the appellant and on the contrary, an allegation is made to the effect that these accused persons have uttered that people of such kind of caste should not be allowed to be in the society and when such kind of assertion is clearly mentioned in the complaint, there is hardly any reason available with the Trial Court to exercise jurisdiction, which is otherwise not vested, and as such, very grant of order from inception is bad in law and hence, irrespective of the time which has taken place in the present proceedings to get it disposed of, is no ground to nullify the challenge Page 5 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 which has been made in the present proceedings.
12. Learned advocate Shri Oza has submitted that overall contents of the complaint are clearly indicating that not only the words against particular caste to which the complainant is belonging are uttered in the society but he was dragged from the house again and beaten up. These allegations are not possible to be unnoticed by the Court. Time and again, Hon'ble the Apex Court has clearly analyzed the statutory provisions and has propounded that only in a rare case, when ex-facie no offence is made out, in that circumstance only power may be exercised, but not in a routine or in a manner in which the Court below has exercised. Shri Oza has submitted that if this kind of orders to be allowed in general, despite specific ban in the Statute, same would disturb the fabric of the society and no person belonging to this caste would be allowed to stay peacefully in a democratic country, like us. Learned Judge has clearly ignored the very object of the Statute and specific provisions and has exercised the discretion in too general in form when such discretion is already taken away. Shri Oza has submitted that the order in question is not sustainable, as a result of this, same be quashed and set aside.
13. Learned advocate Shri Oza has further drawn attention to substantiate his argument about the assertions which are clearly made in the FIR and then, referred to Sections 18 and 18A of the Atrocity Act and thereby contended that in no circumstance, the order in question is allowed to be sustained in the eye of law. Shri Oza with a view to strengthen his submissions, has further drawn attention to series of decisions which are placed on record by virtue of separate paper-book compilation after giving copy to the the other-side, and has drawn attention to certain relevant observations contained in the said decisions and after referring, a contention is raised that the order in question no longer deserves to be continued since the very grant of order itself is illegal, as such deserves to be quashed and set aside.
Page 6 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022R/CR.A/143/2020 ORDER DATED: 13/09/2021 Following are the decisions referred to by learned advocate Shri Oza, which may be dealt with at appropriate stage in the present order:-
(1) Judgment dated 10.2.2020 delivered by Hon'ble the Supreme Court in Writ Petition (C) No.1015 of 2018;
(2) Judgment of Hon'ble the Apex Court in the case of Union of India Vs. State of Maharashtra reported in 2019(0) AIJEL-
SC 64961;
(3) Judgment in the case of Raghunath Rai Bareja and Another Vs. Punjab National Bank and others reported in (2007)2 SCC 230;
(4) Judgment delivered in Criminal Appeal No.1843 of 2019 dated 5.12.2019;
(5) Judgment in the case of Subhash Kashinath Mahajan Vs. State of Maharashtra reported in 2018 (0) AIJEL-SC 61923 (6) Judgment in the case of Manju Devi Vs. Onkarjit Singh Ahluwalia Alias Omkarjeet Singh and others reported in (2017)13 SCC 439;
(7) Judgment in the case of Hazari Lal Das Vs. State of West Bengal and Another reported in (2009)10 SCC 652.
14. Learned advocate Shri Oza has given much emphasize upon the recent decision of three Hon'ble Judges of Hon'ble the Apex Court reported in 2019(0) AIJEL SC-64961, another decision reported in (2020)2 SCC 118 and also the decision reported in (2009)10 SCC 652 and by referring to the specific observations contained in the relevant paragraphs, request is made to allow these Criminal Appeals by quashing and setting aside the impugned orders.
15. Learned advocate Shri Oza has submitted that if this kind of orders are allowed to continue, same would have not only effect of frustrating the very object of framing of the Statute and prescribing the mandate by virtue of Sections 18 and 18A of the Atrocity Act, but would also have far-reaching effect or consequence upon social fabric in the society. Shri Oza has submitted that the country is governed by Page 7 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 Rule of law if a person like the present appellant belonging to a particular caste is to be allowed to be dealt with in the manner in which it has been narrated in the complaint, no citizen of such class would remain safe and hence, to set an example as well, the orders impugned deserve to be corrected and has requested the Court to allow the present Criminal Appeals.
16. Learned Additional Public Prosecutor Mr. J.K. Shah appearing on behalf of the State has also made out a point that in the complaint, the incident is clearly narrated with clear assertion and the overall contents of the complaint indicate that the incident did occur against the appellant, who is belonging to a particular class in the society. Mr. Shah has submitted that the Statute is not requiring that specific name of caste to be referred to, which may attract the provision of the Atrocity Act, that is not the requirement and therefore, learned Judge has fallen in error in exercising the discretion. Mr. Shah has submitted that these proceedings being not for cancellation of anticipatory bail but against the very grant of anticipatory bail and as such, it has to be viewed from different perspective and for that purpose, the object of the provisions of the Act is also to be taken into consideration. According to Mr. Shah, the orders passed by the Court below are appearing to be in conflict with the specific provisions and as such, requested to quash and aside the same.
17. As against the aforesaid submissions, in the present group of appeals, learned advocate Mr. Manish J. Patel has led the group by submitting vehemently that bare reading of the complaint is not inspiring any confidence as to whether even prima facie offence under the Atrocity Act is committed or not. Nowhere in the complaint, actual words are narrated to indicate that any violation of the provision is reflecting. On the contrary, it appears that just with a view to rope all the accused persons and to see that they may not seek any protection, these provisions of the Atrocity Act have been inserted in the Page 8 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 complaint. In absence of any specific words being mentioned in the complaint, it has rightly not been assumed by the Court below that the provisions of the Atrocity Act are attracted and therefore, the discretion which has been exercised is just and proper. It has been contended vehemently that in catena of decisions, in the recent time, the Hon'ble Apex Court has stated that if prima facie Court finds that no case of any violation of the provision of the Atrocity Act is reflecting, Court can certainly exercise discretion under Section 438 of the Code of Criminal Procedure. It has been emphatically submitted that by considering the provisions of Section 18 and inserted Section 18A under the Atrocity Act, the Hon'ble Apex Court has propounded the aforesaid proposition and as such, when keeping the same in mind, the discretion is exercised by the Court below after assigning proper reasons, there is hardly any cogent reason to interfere with the order passed by the Court below.
18. Learned advocate Mr. Patel has further submitted that the order in question is dated 4.1.2020 and over a period of this time, there is no case of any side that any violation or misuse of liberty is committed by the respondents accused and as such, under this set of circumstance, there is hardly any case made out to grant the relief as prayed for in the appeal. It has been submitted that grant of this relief would tantamount to canceling the anticipatory bail which has already been granted way back in January 2020 and therefore, in absence of any supervening circumstance, there is hardly any case made out to quash and set aside the impugned order. It has been submitted that bare look at the order clearly suggests that learned Judge has exercised the discretion when prima facie no material is found that the offence under the Atrocity Act is made out and that being so, keeping in view the law laid down by the catena of decisions of Hon'ble the Apex Court, which are even referred to in the order, well reasoned discretion is exercised. Learned Judge has categorically found that the FIR contains no required mandatory averments and Page 9 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 further, no express words are used which can safely be said to be any violation of the provision of the Atrocity Act. That being so, the discretion which has been exercised cannot be said to be perverse in any form. While passing the impugned order, not only the averments made in the FIR have been gone into at length but at the same time, the decisions which have been delivered by the Apex Court reported in 2019(2) CRIMES 400 (Gujarat) as well as the decision reported in 2019(2) CRIMES 303 (Gujarat) have also been taken note of and in addition thereto, even the provisions contained under Section 18 as well as Section18A have also been kept in mind while passing the order. In para 19 of the judgment, learned Judge has categorically referred to the decision delivered by the Apex Court as well as the decision delivered in Criminal Appeal No.1311 of 2008 and then arrived at a conclusion which may not be disturbed especially when approximately more a period of one year is passed.
19. Learned advocate Mr. Patel has submitted that after the incident in question, nothing untoward has taken place throughout even till date and in between, there is no animosity which has given rise to filing of any other proceedings and at present, there is no disturbance prevailing in the society as well, and as such with a view to continue the harmonized atmosphere, which is prevailing as on date, the order may not be disturbed in the interest of justice.
20. Learned advocate Mr. Patel has submitted that Hon'ble the Apex Court in the decision reported in (2019)6 SCC 268 has given benefit of doubt, especially when there was no specific reference to a particular caste or tribe which would bring the issue within the periphery of Section 3 of the Act and as such, has submitted that here also, the reading of the complaint would clearly indicate that no express words are indicated in the complaint which would attract the provisions of the Atrocity Act and therefore, when that be so, prima facie, when no such provisions are attracted, Court's discretion to grant protection is Page 10 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 not taken away and as such, no error is committed by the Court below which may call for any interference and has requested that the appeal proceedings may be dismissed.
21. Learned advocate Mr. Patel has submitted that exaggerated complaint has been filed in view of the fact that the complainant is a practicing advocate and further, the accused persons may not be aware about the particular caste since the complainant has just come to reside in the society before couple of days and in fact, nobody was knowing and as such, learned Trial Judge has rightly come to the conclusion. Even the complainant himself in the complaint has clearly not asserted as to he belongs to a which caste and thereby intentionally, insulted. Hence, in absence of these material words, which are clearly missing in the complaint, hardly any case is made out of setting aside the impugned order. Mr. Patel has submitted that in addition to this, even the Coordinate Bench of this Court, while entertaining the petition for quashing has also prima facie formulated an opinion that the FIR lacks basic ingredients of offence punishable under the provisions of SC/ST Act and thereby entertained the proceedings by ordering not to take any coercive step. Said order dated 31.1.2020 reflecting on page 48 of the lead matter is also supportive to the stand of the respondents- accused and hence, such assertions even of the Coordinate Bench are also reflecting, being part of the record of present proceedings, Hon'ble Court may not disturb the order which has been passed way back in January 2020, i.e. almost before one and half years. Mr. Patel has, under instruction, stated that since at present, there is no disturbing situation prevailing in the society where even the complainant appears to be residing, even the respondents- accused are prepared to abide by any condition which may be imposed upon even in the present proceedings against them. There is no any absolute ill-intention of any nature but, on account of the exaggerated version, the respondent accused have been roped into the prosecution. However, be that as it may, since the Page 11 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 Court below has also clearly opined that bare look at the complaint is not reflecting any violation of the provisions of the Atrocity Act and the Coordinate Bench has also prima facie formulated an opinion, as indicated above, the Court may not disturb the order, particularly in view of the fact that even in a very recent decision delivered by the Hon'ble Apex Court reported in (2021)1 SCC 733, Court can exercise discretion. Hence, no case is made out to set aside the impugned order. It has further been submitted that throughout, the respondents- accused have cooperated with the investigating machinery, in which they have not been further called, no T.I. parade is undertaken, no remand is sought, as a result of this, conjoint effect of the aforesaid circumstance may be considered in the interest of justice by not disturbing the order which has been impugned in the appeal.
22. In addition to the above, learned advocate Mr. Pravin Gondaliya appearing for the respondent- accused in Criminal Appeal No.253 of 2020 has substantially adopted the submission made by learned advocate Mr. M.J. Patel, as indicated above, and has submitted that the appeal may be dismissed.
23. Further, learned advocate Mr. Nishith K. Joshi appearing on behalf of some of the accused in Criminal Appeal No.248 of 2020 has in addition to aforesaid learned advocates Mr. Manish J. Patel and Mr. Pravin Godaliya, has submitted that even majority accused are not knowing even the name of the complainant, irrespective about his particular caste. So, when that be the situation, there appears to be a wrongful arraignment of the accused persons in commission of the alleged crime. The complainant appears to be from a reserved category caste from Rajasthan, how the accused persons would know that the complainant belongs to a particular caste. On the contrary, he came to reside just about 12 days before in the society. Hence, when prima facie, the Court found that there is no provision of the Atrocity Act Page 12 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 attracted, judicial discretion is exercised, which cannot be said to be erroneous in any form. By referring to few decisions delivered by the Hon'ble the Apex Court reported in 2020 (0) AIJEL-SC 66664 as well as decision reported in AIR 2020 SC 1036, Mr. Joshi has submitted that the conjoint effect of all these decisions which have been cited in the present proceedings would lead to a situation where judicial discretion of the Court is not that much circumscribed that simply because there is a mention of any Atrocity Act in the complaint, Court cannot look into it. Basic ingredients and mandatory requirement of asserting in the complaint since being missing, hardly any case is made out by the appellant to call for any interference. Mr. Joshi has further also reiterated the very same point which has been mentioned by learned advocate Mr. Patel that the petitions for quashing are very much pending before the Coordinate Bench of this Court and as such, this protection which has been granted and continued throughout from January 2020 may not be disturbed simply because the complainant happens to be an advocate and precipitating the matter. After submitting this, Mr. Joshi has requested to dismiss the appeal which has been filed.
24. Having heard learned advocates appearing for the parties and having gone through the overall material on record, following circumstances deserve to be kept in mind while coming to an ultimate conclusion in the present proceedings:-
(1) First of all, a perusal of the FIR, reflecting on page 29 of the lead matter, i.e. Criminal Appeal No.143 of 2020, is indicating that on 26.12.2019, when the appellant came in the society and went for having a pack of biscuit, at that time, the accused persons, led by accused Mr. Pravinbhai Vania, have started altercation with the appellant and used caste based words and later on also, same has been repeated and then, when the appellant went inside the house, the accused persons allegedly chased him, beaten up and one of the Page 13 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 accused persons armed with iron pipe had caused injuries to the appellant. The incident then was reported with the assistance of the friends of the appellant- complainant and thereafter, after taking medical treatment, the complaint in question came to be lodged, which is registered as C.R. No.I-238 of 2019 on 27.12.2019 for the incident which occurred on 26.12.2019. Overall assertion of the complaint is indicating the attack and injuries caused to the appellant by accused persons and some altercation of words which were caste based and thereby the complaint came to be lodged for the offence punishable under the provisions of the Atrocity Act and on account of this complaint, applications for seeking anticipatory bail came to be moved before the Trial Court.
(2) A perusal of the Court below is indicating that after hearing at length to the parties to the proceedings, learned Additional Sessions Judge, Court No.20, City Sessions Court, Ahmedabad has passed an order on 4.1.2020 allowing the application submitted by the respondent accused by imposing suitable conditions and while exercising such discretion, learned Judge has come to the conclusion that prima facie, no offence under the Atrocity Act is reflecting. As a result of which, keeping in mind few observations made in the decisions delivered by Hon'ble the Apex Court as well as by the Gujarat High Court, a specific conclusion is arrived at that these observations are to be considered. The satisfaction which has been arrived at is on the basis of the perusal of the material on record and keeping in view the observations made by the Courts, such conclusion deems it proper to be reproduced hereunder:-
17. It is well settled that every case are having different facts and circumstances and if it is found that there is no prima-facie material to substantiate that offence under the Atrocities Act is made, in such a case, it cannot be declined that the Court is not having discretion to allow the anticipatory bail.
18. Now, on going through the record of the case as a whole, more particularly F.I.R., no where mentioned in it that which type of Page 14 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 caste derogatory words have been used by the applicant for the complainant to derogate him.
19. Further, the order passed in case of Gorige Pentaiah v. State of Andhra Pradesh, reported in 2008(0) AIJEL-SC 42194, relied and produced by the learned Advocate for the applicant was passed in Criminal Appeal No.1311 of 2008,in which, it is observed that "It was not stated in the complaint that accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate the complainant in a place within public view. As the basic ingredients of offence were missing in the complaint, complaint is quashed." Thus, considering the facts of the case on hand, the same is helpful to the arguments advanced by the learned Advocate for the applicant.
20. In case of Yunushkhan Hayatkhan Malek v. State of Gujarat, reported in 2019(2) Crimes 400 (Guj.), relied and produced by the learned Advocate for the applicant, it is held that "When required mandatory averments are missing in F.I.R. itself, it is doubtful whether provisions of Atrocity Act would come into play and therefore, amended provisions under Section 18A will not help the respondent." Thus, looking to the facts of the case on hand, the same directly affects it as no specific averments have been mentioned by the complainant in the FIR that he has been abused by using caste derogatory words by the applicant with other accused. In case of Nai Natwarlal Motiram v. State of Gujarat, reported in 2019(2) Crimes 303 (Guj.), relied and produced by the learned Advocate for the applicant, it is held that "There is civil dispute between the parties. There is no prima-facie ingredients of provision of Atrocity Act.
Appellant has not used any weapon in commission of an offence. There is allegation that at his instigation, other accused have assaulted present complainant...When there is no prima facie case under Atrocity Act then power under Section 438 of Criminal Procedure Code is available to this Court. Bail Granted." Hence, as discussed above, as it appears from the complaint that there is no prima-facie case under the Atrocity Act, the same is applicable to the case on hand.
21. Thus, as discussed above, at this stage, as the complainant failed to attract the provisions of the Atrocities Act, as he failed to provide required mandatory averments in the F.I.R. and accordingly, he also failed to prove that there is prima-facie case against the applicant.
22. Therefore, after considering overall facts and circumstances of the case and record as a whole, at this stage, I am of the opinion that this is a fit case to use the discretionary power given under Sec.438 of the Cr.P.C. to release the applicant on anticipatory bail. Accordingly, I pass the following order.
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ORDER
The application filed by the present applicant under Sec.438 of the Criminal Procedure Code, is hereby allowed.
The applicant - Pravinbhai Dahyabhai Patel, is hereby ordered to be released on bail in the event of his arrest in connection with the offence registered at I-C.R. No.238 of 2019, with the Vadaj Police Station, Ahmedabad, on furnishing surety of Rs.15,000/- (Rupees Fifteen Thousand Only) and P.R. Bond of like amount, on the following conditions that the applicant:-
1. shall not directly or indirectly make any inducement or promise to any person acquainted with the facts of the case;
2. shall not leave the territory of India without the prior permission of the Court, till filing of the charge-sheet;
3. shall give correct permanent address, mobile number, identity proof to the police as well as the concerned Court;
4. shall mark his presence before the concerned Police Station on 1st day of every month till the charge-sheet is filed;
5. shall give full co-operation in the investigation;
6. shall not take undue advantage of his liberty;
7. shall not act in a manner injurious to the interest of the prosecution;
8. Investigation officer has liberty to file a remand application under Sec.167 of the Cr.P.C., if required before the concerned Trial Court and the concerned Trial Court will decide the said remand application on merits.
In any circumstances, if the concerned Trial Court pass an order to take the applicant/accused in Judicial Custody, than, this order will be treated as postponed for that period only and on completion of remand procedure, applicant will be considered as released on bail automatically;
9. shall surrender his passport with the concerned Investigating Officer/Trial Court, if possesses within three days of his release, otherwise, he will file affidavit about passport;
10. shall regularly remain present in the Trial Court;
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11. Bail Bond shall be furnished according to the satisfaction of the Investigating Officer.
The trial Court shall be at liberty to make necessary modifications in the above mentioned conditions.
If the applicant breaches any of the terms and conditions mentioned above, his bail bond stands cancelled automatically. This order be intimated to the concerned Police Station and Court if any, for information and necessary action. Pronounced in the open Court on this 04th Day of January, 2020.
(3) The aforesaid order of grant of anticipatory bail is the subject matter of challenge in the present appeal. The other accused persons have also been extended the similar protection on the line on which protection is extended the the accused person of the lead matter, i.e. Criminal Appeal No.143 of 2020.
(4) The discretion vested in the Court is exercised by assigning proper reasons and after considering the relevant record and keeping in view the proposition of law and as such, prima facie, there appears to be an application of mind while exercising the discretion and the exercise of discretion is supported by assigning the reasons.
(5) Further, it appears to the Court that this order is passed way back in January 2020 and it is reported that no untoward incident thereafter has taken place in the society and it is not the case that any such supervening circumstance has arisen which warrants setting aside the order of grant of anticipatory bail. However, here is also not a case in which any alleged breach of any of the conditions is visible.
25. In the background of the aforesaid peculiar circumstance, when the Trial Court has come to the conclusion that in absence of any specific utterance with regard to the caste of the appellate, the provisions are not attracted at this stage prima facie and as such, the discretion is exercised. Now, to this proposition, in one of the decisions delivered by the Hon'ble Apex Court in the case of Narad Page 17 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 Patel Vs. State of Chhattisgarh reported in (2019)6 SCC 268, in which , in absence of any specific words about the caste of the tribe, benefit has been given to the accused even after trial and in para 8 of the said decision, it has been observed that during altercation, no reference was made about the caste of the tribe that the complainant belonged to a particular which caste and on that basis, benefit of doubt was given. Para 8 and 9 of the said decision read as under:-
8. It has been found that the appellant was not guilty of the offence under Section 506 IPC and the case presented by the prosecution in that behalf was completely rejected. According to the record, following certain acts committed by the appellant a Panchayat was held in which some abuses were hurled by the appellant. Going by the version of the complainant Deshiram himself, the expressions used by the appellant during the course of vertical altercation, did not refer to the caste or tribe that the complainant belonged though such assertion finds place in the testimony of the other witnesses.
9. Thus, the fact that the appellant abused the complainant Deshiram is quite clear and as such his conviction and sentence recorded under Section 294 IPC was fully justified.
However, going by the version of the complainant Deshiram according to which there was no reference to the caste or tribe of the complainant, there is a doubt as regards charge under Section 3(1)(x) of the Act.
26. In addition to this, the Coordinate Bench while entertaining the petition for quashing has also prima facie formulated an opinion that basic ingredients are lacking in the impugned FIR and thereby notices have been issued and protection has been extended, which order since the part of the record, the Court deems it proper to reproduce the same hereunder:-
Prima facie, it appears that the impugned F.I.R. lacks basic ingredients of the offence punishable under the provisions of the SC/ST Act. Therefore, present application deserves consideration.
Issue notice, making it returnable on 28.07.2020. The learned A.P.P. waives service of notice for the respondent - State.
Meanwhile, no coercive steps shall be taken against the applicants. However, the investigation may proceed further in Page 18 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 accordance with law but, the chargesheet shall not be filed without prior permission of the Court. Direct service qua respondent No.2, through the concerned police station, is permitted.
27. So, here is a case in which not only the Court below has formulated an opinion that prima facie the provisions are not attracted, but in addition to it, even the Coordinate Bench also prima facie opined about lacking of the basic ingredients of the offence punishable under the provisions of the Atrocity Act.
28. Further, a specific stand is taken by the accused persons that the appellant- complainant has come in the society just before few days, i.e. approximately 12 days, to reside in the society in a house of his relative and on account of his timings to attend the Court work, he was practically not known to the members of the society and as such, question of knowing the particular caste of the appellant may be plausible.
29. Additionally, from the record of this lead appeal, one Bhartiben has given a complaint before the Police Inspector in Mahila Police Station, West, Ahmedabad on 28.12.2019 indicating that the appellant is residing as a P.G. in the House No.13 and is not behaving properly and detailed statements are also recorded which are attached to the Further Affidavit filed by the appellant on page 52 onwards. This has been stated to be an afterthought complaint, but then, in absence of any specific reference to the caste of the appellant and in consonance with the prima facie observations made by the Court below as well the by the Coordinate Bench of this Court, this Court is also of the opinion that since the anticipatory bail is operative right from January 2020, nothing untoward has taken place and prima facie, the applicability of the Act is at stake, no case is made out to set aside the impugned order passed by the Court below.
30. Further, as stated above, while exercising the discretion, Page 19 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 learned Judge has prima facie come to the conclusion while exercising the discretion in absence of any other distinguishable material, that the Court would not like incline to set aside the impugned order by substituting the views which have been taken by the Court below as well as the Coordinate Bench in a petition for quashing.
31. In the context of the aforesaid discussion, several decisions have been cited both the sides, but undisputed proposition is that if prima facie applicability of the Act is doubtful, or not safely to be held applicable, in peculiar background of facts on hand, then in such case, there is no bar of granting anticipatory bail for the offence committed under the Act. The decision last in line delivered by the Apex Court is in the case of Rahna Jalal v. State of Kerala and Another reported in (2021)1 SCC 733. The observations contained in para 25 and 26 since material, the Court deems it proper to incorporate the same hereunder as these conclusions are arrived at after critical analysis of the provisions, case law cited before the Court and also keeping in view the provisions of Sections 18 and 18A of the Act in the context of exercise of the jurisdiction for grant or refusal of the anticipatory bail:-
25. For the above reasons, we have come to the conclusion that on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.
26 By the order of this Court dated 3 December 2020, interim protection from arrest has been granted to the appellant. The primary allegation which is pressed in aid to deny anticipatory bail is the pronouncement of triple talaq by the spouse of the second respondent. In the preceding paragraphs we have observed that an offence under the Act is by the Muslim man who has pronounced talaq upon his spouse, and not the appellant, who is the mother-in-law of the second respondent.Page 20 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022
R/CR.A/143/2020 ORDER DATED: 13/09/2021 Though, Mr. G. Prakash, learned counsel appearing on behalf of the State of Kerala has adverted to the allegations under Section 498A of the CrPC to oppose the grant of bail, we are of the view that having regard to the vague and general nature of those allegations in the FIR, bereft of details, the appellant (whose son is in a marital relationship with the second respondent) should not be denied the benefit of the grant of anticipatory bail. It must also be noted that the Judicial Magistrate First Class-I, North Parur, by an order dated Crl.A./ 2020 23 October 2020, while deciding the second respondents application9 under Section 23 of the Protection of Women from Domestic Violence Act, 2005 did not find any substance in the allegations against the appellant.
32. In the aforesaid analysis of the material as well as the latest pronouncement of the Hon'ble Apex Court, now the decisions which have been tried to be pressed into service by learned arguing counsel Shri Yatin Oza, the Court would like to consider the same in the context of background of the facts of the case on hand.
33. First judgment, which is relied upon, of Hon'ble the Apex Court passed in Writ Petition (C) No.1015 of 2018, learned advocate Shri Oza has pressed reliance upon the observations contained in the said judgment with a view to request the Court for setting aside the impugned order. However, out of several decisions, the decision, which is last in line, is also since pointed out, the Court deems it proper to consider the same.
34. In another decision also, which is relied upon, i.e. the decision reported in 2019(0) AIJEL-SC 94961, the Hon'ble Apex Court has dealt with the aspect of presumption as contained in para 49 and 50 and thereby has contended that this being an anticipatory bail, at this stage, the Court has to keep in mind the object of Section 18A. But, with regard to this very decision, the Hon'ble Apex Court has also observed in para 54 that if prima facie case has not been made out attracting the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989, in that case, bar created under Section 18 on grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by Page 21 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022 R/CR.A/143/2020 ORDER DATED: 13/09/2021 the decision.
35. Yet, another decision, which is relied upon is the decision reported in (2007)2 SCC 230, as well as the decision delivered in Criminal Appeal No.1843 of 2019 reported in (2020)2 SCC 118. The Court is in complete respectful agreement with the aforesaid observations on the principle laid down by the Hon'ble Apex Court, but, after considering all these decisions, the decision last in line reported in (2021)1 SCC 733 (supra), the Court has ultimately analyzed that even if the bare reading of the FIR/ complaint indicates that prima facie provisions of the Act are not found to be attracted, then harmonious construction of Section 438 of the Code of Criminal Procedure coupled with the provisions of the Atrocity Act would lead to a situation where there is no bar in granting anticipatory bail for an offence committed under the Act. Since this judgment of the Hon'ble Apex Court is the latest decision delivered after considering almost all the previous decisions, the Court in the background of the aforesaid peculiar set of circumstance, is of the opinion that it would not be just and proper to substitute the findings and set aside the impugned order of grant of anticipatory bail to the accused persons, more particularly when not only the Court below has come to a conclusion but even the Coordinate Bench while entertaining the petition for quashing, has clearly spelt out the opinion, as indicated above. In that view of the matter, the Court is of the opinion that no case is made out to set aside the impugned order. The judgments which have been relied by learned advocate Shri Oza are of no assistance to seek the relief, as sought for in the appeals. Accordingly, the appeals deserve to be dismissed. However, while disposing of these appeals, it is made clear that if it is found that the liberty is at any time in any manner misused by respective accused persons of this group of appeals, it would be open for the appellant to take out appropriate proceedings permission in law.
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36. With the aforesaid observations, present group of Criminal Appeal stands DISMISSED.
(ASHUTOSH J. SHASTRI, J) OMKAR Page 23 of 23 Downloaded on : Sun Jan 16 14:08:33 IST 2022