Gujarat High Court
Santosh @ Babar Arjunbhai Kori vs State Of Gujarat on 27 December, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/1778/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1778 of 2018
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SANTOSH @ BABAR ARJUNBHAI KORI
Versus
STATE OF GUJARAT
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Appearance:
JAYSINH Y SOLANKI(8634) for the PETITIONER(s) No. 1
MR. HARDIK Y KOTHARI(6895) for the PETITIONER(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
MR PRANAV TRIVEDI APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 27/12/2018
ORAL ORDER
1. Denial of bail for the offences punishable under Sections 394, 504, 506(2), 427 and 114 of the Indian Penal Code and under Sections 3(1)(r)(s) and 3(2)(5-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendments Act, 2015 (for short the Act) for which FIR came to be registered at C.R. No.I-97 of 2018 with Gogha Road Police Station; Dist: Bhavnagar by an order dated 28/09/2018 passed by the Court below has given rise to this appeal under Section 14A of the Act.
2. Having regard to the nature of accusation against the appellant and having regard to the fact that except 506(2) of the IPC; other offences are bailable, as also the fact that there is only one antecedent of similar nature, the bail cannot be denied to the appellant.
Insofar as Section 394 is concerned, it appears from the facts on record that during the scuffle and quarrel between the complainant and the accused, he allegedly snatched the mobile phone from the pocket of shirt of the complainant; however prima facie, it cannot be said that accused had intention or knowledge to commit the offence under Section 394 of the IPC (See decision 2011 (3) GLH 739).
For the offence punishable under Section 506(2) of the IPC, a criminal intimidation as defined in Section 503 of the IPC must be Page 1 of 3 R/CR.A/1778/2018 ORDER borne in the evidence on record. This Court has elaborately discussed the requirements of Section 503 and 506(2) of the IPC while deciding Criminal Appeal No.2213 of 2006. However, no ingredients of Section 503 of the IPC are borne in the evidence.
So far as accusations under section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are concerned, the necessary averments that the offender is not the member of Scheduled Castes and Scheduled Tribes are lacking from the FIR and in similar circumstances in Gorige Pentaiah v. State of Andhra Pradesh [(2008) 12 SCC 531],, the FIR devoid of such averments was quashed. Thus even under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellants ought to have been considered for the bail.
The Trial court unfortunately did not adhere to the above referred factual and legal scenario; consequently falling into a serious error resulting into denial of justice to the appellant. The impugned order therefore cannot be sustained. The same is required to be quashed and set aside. In absence of apprehension against the appellant fleeing from trial, tampering with the evidences or threatening the witnesses, case for admitting the appellant to bail is made out and the appellants are required to be admitted to bail.
3. Hence, this appeal is allowed and appellant is ordered to be released on bail in connection with C.R. No.I-97 of 2018 with Gogha Road Police Station; Dist: Bhavnagar on his executing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender his passport, if any, to the lower court within a Page 2 of 3 R/CR.A/1778/2018 ORDER week;
(d) not leave the territory of India without prior permission of the Sessions Judge concerned;
(e) report to the concerned police station concerned once in a calendar month; pending trial, if any.
(f) furnish the present address of residence along with the proof to the Investigating Officer concerned and also to the trial court at the time of execution of the bond and shall indicate change of residential address if any to the trial court.
4. The competent authority will release the appellant only if he is not required in connection with any other offence for the time being.
4.1 If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.
4.2 Bail bond to be executed before the lower court having jurisdiction to try the case.
4.3 It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.
4.4 At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the appellant on bail.
5. Appeal is allowed. Rule is made absolute. Direct service is permitted.
(G.R.UDHWANI, J) SOMPURA Page 3 of 3