Gujarat High Court
Bhupendrabhai Labhshankar Vora vs State Of Gujarat on 2 February, 2022
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/932/2021 ORDER DATED: 02/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 932 of 2021
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BHUPENDRABHAI LABHSHANKAR VORA
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Appellant(s) No. 1,2,3
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1,2,3
MR A M JOSHIYARA(5145) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK K RAVAL(6366) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 02/02/2022
ORAL ORDER
1. Present appellants filed Criminal Misc. Application No. 277 of 2021 before the Court of learned Special Judge and Additional Sessions Judge, Sabarkantha @ Idar u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellants on anticipatory bail on account of offence being registered vide C.R. No.11209028211058 of 2021 for the offence punishable u/s. 323, 452 and 504 of Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act"), and Section 135 of the G.P. Act, wherein learned Special Judge and Additional Sessions Judge, Sabarkantha @ Idar rejected the said Page 1 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022 R/CR.A/932/2021 ORDER DATED: 02/02/2022 application on 05.07.2021
2. Feeling aggrieved by the said order, appellants have preferred present appeal under Section 14 of the Atrocities Act.
3. Heard learned advocate for the appellants, learned advocate appearing for the respondent No.2 and learned APP for the respondent-State.
4. Learned advocate for the appellants has submitted that the appellants are innocent person and have not committed any alleged offence and appellants are not connected in any manner whatsoever with the alleged commission of offence. That prima facie, there is no proof to substantial such allegation that the appellants had committed an offence under the Atrocities Act . That from the bare perusal of the FIR and allegations made in the FIR, no ingredients are fulfilled to make the appellants liable for the offence punishable under Sections 323, 452 and 504 of the I.P.C. That allegations of the complainant fails to fall within the parameter of definition of the attempt to murder, thereby it clearly goes to show that the complaint of the complainant is nothing but abuse of process of law wherein the basic ingredients to constitute offence of extortion is not made out. It is further submitted that complainant failed to mention what Page 2 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022 R/CR.A/932/2021 ORDER DATED: 02/02/2022 were the obscene words used by the accused to commit the said criminal offence and the complaint is also silent qua the fact as what were the intention of the accused to commit the alleged offence. That there is no evidence to show that actually any case of Atrocities is made out with the mala fide intention of keeping the appellants behind the bards, frivolous allegations are levelled with respect to the Atrocities. Hence, it was requested by learned advocate for the appellants to allow present criminal appeal.
5. Learned advocate appearing for the respondent No.2 as well as learned APP appearing for the respondent-State have strongly objected the submissions made by learned advocate appearing for the appellants submitting that in a complaint lodged by the respondent No.2, clear allegations are made against the present appellants involving them in the alleged offence, and therefore, no lenient view can be taken by this Court. Hence, it is requested by them to dismiss this criminal appeal.
6. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan Vs. State of Maharashtra reported in 2018(6) SCC 454, wherein the Hon'ble Supreme Court has held that there is no absolute bar against grant of Page 3 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022 R/CR.A/932/2021 ORDER DATED: 02/02/2022 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. View taken by the High Court of Gujarat in the case of Pankaj D. Suthar (supra) and Dr.N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(2)(5)(a), 3(g),3(p),3(r),3(s)(z)(c)& u/s. 8 of the Atrocity Act.
7. In the case of Union of India Vs. State of Maharashtra in Review Petition (Cri.) No.228 of 2018 in Criminal Appeal No.416 of 2018, it was opined that direction nos.(iii) and (iv) issued by the Hon'ble Supreme Court deserve to be and are hereby recalled and consequently we hold that direction no.(v), also vanishes. The other directions remained as it is as there is no bar in granting anticipatory bail. This Court has made scrutiny of the complaint and prima facie, Page 4 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022 R/CR.A/932/2021 ORDER DATED: 02/02/2022 it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint.
8. In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme Court Cases 531, it was held that according to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe, he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view.
9. Having considered the facts of the case, arguments of learned advocates appearing for the respective parties as well as learned APP appearing for the respondent-State, it appears that as per the case of the prosecution on 24.06.2021 at around 2:00 p.m. when the complainant and his wife and children were at their home, at that time Bhitiben entered into the house of complainant with a stick in her hand and started abusive words against the caste of the complainant and dragged him out of his house and started speaking abusive and offensive language. Further allegations were made in the complaint that Bhitiben told the complainant not to pour water in front of the house as pouring water causes unhygienic atmosphere Page 5 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022 R/CR.A/932/2021 ORDER DATED: 02/02/2022 and started saying about the caste of the complainant. It is further alleged in the complaint that, at that time, complainant asked Bhupendrabhai not to speak any bad words about their caste, and thereafter, his wife Mayaben and their daughter Bhitiben, came with stick and gave stick blow to the complainant as well as his wife and somehow, the complainant and his wife saved themselves and got rescued from the accused and went inside the house.
10. It further appears from the record that cross complaint is also lodged against the respondent No.2 by the daughter of appellant No.3-Bhitiben on 24.06.2021 for the offence punishable under Section 323, 294(b), 504, 506(2), 354 and 114 of the I.P.C. as well as Section 135 of the G.P. Act. From perusing both the complaints lodged by either side, it appears that there is certain dispute remained pending before the parties and they have lodged the complaint from their side before the police authority.
11. To attract the provisions under Sections 3(1)(r) 3 (1)(s) and 3(2)(va) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act),1989, there is no specific allegations made in the complaint that present appellant intentionally insulted or intimidated with intent to humiliate the respondent No.2 being a member of Page 6 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022 R/CR.A/932/2021 ORDER DATED: 02/02/2022 Scheduled Caste or Schedule Tribe in any place within public view. In absence of any specific ingredients awarded in the complaint and cross complaint is filed from the appellant's side against the respondent No.2, prayer made by the appellants requires consideration.
12. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 05.07.2021 passed in Criminal Misc. Application No. 277 of 2021 by learned Special Judge and Additional Sessions Judge, Sabarkantha @ Idar is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of their arrest on furnishing a bond of Rs. 10,000/- each with surety of like amount on the following conditions that the appellants:-
(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 09.02.2022 between 11.00 a.m. and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade her from disclosing such facts to the court or to any police officer;
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(d) shall 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) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
13. 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.
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14. 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.
15. 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.
16. Notice stands discharged. Direct service is permitted.
(B.N. KARIA, J) SUYASH Page 9 of 9 Downloaded on : Fri Feb 04 20:33:31 IST 2022