Gujarat High Court
Surendrakumar Mafatlal Doshi vs State Of Gujarat on 18 October, 2023
NEUTRAL CITATION
R/CR.A/1979/2023 ORDER DATED: 18/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ANTICIPATORY BAIL) NO. 1979 of 2023
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SURENDRAKUMAR MAFATLAL DOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR HARSHIL G BHAVSAR(11263) for the Appellant(s) No. 1
MR RUTURAJ NANAVATI(5624) for the Appellant(s) No. 1
MR PRADIP J PATEL(5896) for the Opponent(s)/Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
V D MARU(7547) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/10/2023
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
2. This is an appeal by the appellant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR being C.R. No.11187006230509 of 2023 registered before Lunawada Police Station, Mahisagar for the offence under Section 504, of the Indian Penal Code and Sections 3(1(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence. It is submitted that the present appellant is a Bank Page 1 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023 NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined Manager and he has not used the derogatory language and he has falsely implicated in the offence, whereas the complainant is a defaulter and the recovery proceedings came to be initiated against the complainant keeping grudge in connection to remain present in annual general meeting, the alleged dispute took place. Even on face of it, it is accepted that even though the incident took place in the chamber and no independent witnesses have supported the case of prosecution. It is alleged that the present appellant has used the derogetory language and humiliated the caste of the appellant. It is submitted that appellant is having no past criminal antecedents and nothing is required to be recovered and discovered from the appellant- accused. It is submitted that even on CCTV footage, it reveals that no such incident took place. With a with to pressurize him, the present appellant is falsely roped in the offence. Learned advocate appearing on behalf of the appellant would submit that considering the nature of offence, the appellant may be enlarged on anticipatory bail by imposing suitable conditions.
Learned advocate for the appellant, on instructions, states that the appellant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an appeal before the competent Court for his remand. He would further submit that upon filing of such appeal by the Investigating Agency, the right of appellant accused to oppose such appeal on merits may be kept open.
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4. Per contra, learned APP appearing for the respondent- State and learned advocate appearing for the original- complainant have opposed this appeal looking to the nature and gravity of the offence.
5. Learned APP further submitted that prima facie, offence was clearly made out against the present appellant. It is stated that the offence is under the Atrocity Act and incident took place in the Chamber. Though appellant is fully aware of the fact that the complainant belongs to Scheduled Caste. As accused was knowing his caste thought complainant was humiliated and insulted in the public. In view of above, prima facie, case is made out and one witness has also supported the case of the prosecution. It is submitted that the present appellant has used the derogatory language. Therefore, no prayer may be granted by this Court for enlarging him on anticipatory bail. Ultimately, learned APP for the State has requested to dismiss the present appeal.
6. Learned advocate appearing for the original-complainant has tendered affidavit of original complainant, which is taken on record. Learned advocate appearing for the original Complainant has adopted the same arguments canvassed by the learned APP and submitted that the appellant has used the derogatory language, therefore, prima facie, case is made out and his anticipatory bail may not be allowed. It is stated that incident took place in two part, first part in chamber while the Page 3 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023 NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined complainant left the Bank, at that time, the appellant has insulted the complainant and one independent witness has supported the case of the prosecution. In view of above, the incident took place in public. Mainly he has relied on the decision rendered in case of Ashabai Machindra Adhagale vs. State of Maharashtra reported in 2009(3) SCC 789, and stated that accused was knowing the caste of appellant and hence, present offence is made out against the present appellant. On plain reading of complaint and the allegations attract the provisions of Atrocity Act and there is no provision to grant anticipatory bail in the case of Atrocity Act, she has opposed the appeal. So far as delay part is concerned earlier complaint came to be filed before the concerned Police Inspector. In view of above, he requested to dismiss the present appeal.
7. I have gone through the thoughtful consideration and the arguments canvassed by the learned advocates for the respective parties. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an appeal for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of Page 4 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023 NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.
8. Present offence is made under the Atrocity Act. It appears that prima facie incident took place in two part. As per the allegations made in the FIR against the accused, the incident took place in chamber and chamber was closed from inside.
In view of above, no offence took place in the public view as the alleged incident took place in the chamber. In this context, reference is required to be made. This Court has taken into consideration the decision of the Hon'ble Apex Court rendered in case of Hitesh Verma vs. State of Uttarakhand reported in 2020(10) SCC 710.
So far as second part is concerned, the alleged incident took place while the complainant going out from the bank, it appears that going through the allegations leveled in the complaint only, no derogatory words being used or or the appellant humiliated the complainant. In this regard, learned advocate for the appellant as well as learned APP drew the Page 5 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023 NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined attention of this Court towards the statement of one witnesses but the said statement is recorded after one month of the said incident and considering the said fact it appears that incident took place out of chamber. Even witness remained in the chamber have also not supported about the use or utterance of any derogatory language on the part of the appellant. Even considering the dispute qua recovery of the loan, NPA, issuance of the notice and recovery proceeding and past antecedents against the present appellant.
9. Having considered the fact that and considering the FIR, no castiest slur or derogatory words being used by the present appellant and in view of the law laid down by the Hon'ble Apex Court in the case of Prathvi Raj Chauhan vs. Union of India reported in (2020) 4 SCC 727, as the allegation is prima facie not made out under the Atrocity Act. Hence, there is no bar to exercise the jurisdiction.
10. I have considered the following aspects:
i. The nature of allegations against the appellant do not attribute any specific role.
ii. Even from the allegations in the FIR, no ingredients are made out so as to attract offence under the Atrocities Act. Present offence is made under the Atrocity Act. It appears that prima facie incident took place in two part. As per the allegations made in the FIR against the accused, the incident took place in chamber and chamber was closed from inside.Page 6 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023
NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined iii. Considering the aforesaid fact, it appears that in the complaint only the caste is named, no such derogatory language being used or to insult the caste, no any exact word uttered by the present appellant or which are reflected. Subsequently, in the statement recorded during the investigation, it is stated that complainant was insulted.
iv. nothing is required to be recovered and discovered from the accused. However, right to seek remand of accused-appellant is also kept open;
11. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present appeal.
12. In the result, the present appeal is allowed by directing that in the event of arrest of the appellant herein in connection with FIR being C.R. No.11187006230509 of 2023 registered before Lunawada Police Station, Mahisagar, the appellant shall be released on bail on his furnishing a personal bond of Rs.10,000/- (Rupees ten thousands only) with one surety of the like amount Page 7 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023 NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined on the following conditions that he shall:
(a) cooperate with the investigation and make himself available for interrogation whenever required;
(b) remain present at the concerned Police Station on 27.10.2023 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 him/them 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 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) not leave India without the permission of the 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 appeal for remand if he considers it proper and just and the learned Magistrate would decide the same 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 appellant. The appellant shall remain present before the learned Magistrate on the first date of hearing of such appeal and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused Page 8 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023 NEUTRAL CITATION R/CR.A/1979/2023 ORDER DATED: 18/10/2023 undefined in the judicial custody for the purpose of entertaining appeal 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 appellant, 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.
14. At the trial, the Trial Court shall not be influenced by the prima-facie observations made by this Court while enlarging the appellant on bail.
15. Rule is made absolute to the aforesaid extent. Appeal is disposed of accordingly. Direct service is permitted.
Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 9 of 9 Downloaded on : Thu Oct 19 20:42:41 IST 2023