Ajaykumar Ramkishore Chaturvedi vs State Of Gujarat

B.N. Karia, J

The appellant has filed Criminal Misc. Application No. 706 of 2019 before the court of learns Special Judge (atrocity) Tapi at Vyara u/s 438 of the

Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail in the event of his arrest on account of offence being

registered vide C.R. No. I-28 of 2019 with Kakrapar Police Station, Dist: Tapi for the offence punishable u/s 354(1)(I) of the Indian Penal Code and

u/s 3(1)(W)(II), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short “the Atrocity Actâ€), wherein

the learned Additional Sessions Judge, Tapi at Vyara rejected the said application. Feeling aggrieved by the said order, the appellant preferred said

appeal u/s 14A of the Atrocity Act.

Heard learned advocates for the respective parties and learned APP for the respondent-State.

Learned advocate for the appellant has submitted that the present case is a classic example of abuse of the provisions of the Atrocity Act. In the

entire FIR, there is no whisper or allegation that the present appellant has committed the alleged offence knowing that the lady complainant is

belonging to Scheduled Case which is mandatory ingredient to constitute an offence under the Atrocity Act. That, a bare reading of FIR would

indicate that the complainant has nowhere alleged that she was belonging to a scheduled case and the appellant was aware about the same and has

committed the alleged offence. That, the present appellant has been falsely implicated in the present FIR and a false case has been foisted upon the

present appellant for the reason that the present appellant was a strict superior of the complainant who had on the same night reprimanded and

scolded the victim for not maintaining cleanliness as well as not maintaining the water cooler properly. That, another reason to implicate the present

appellant in the offence was that the Sarpanch from the village of the complainant had come to the present appellant seeking a death certificate in the

name of certain person which the appellant had refused and therefore, keeping such grudge, impugned FIR has been filed That, complainant has

moved independent machinery by way of initiating independent departmental proceedings which is underway and there is no adverse adjudication

against the appellant. That, victim had waited for months to file such an FIR as victim realized that adjudication of the departmental proceedings is not

going to conclude in her favour and that women cell after examining the present appellant may decide to take no action against the present appellant

as the complaint filed was false and fabricated. That, the version of the complainant is far from truth and do not find any corroboration from

independent circumstances. It is further submitted that basic ingredients of the offence are missing in the complaint and no offence under the Atrocity

Act is committed by the present appellant. That, specific role of the present appellant was not disclosed in the complaint. That, the present appellant is

unnecessarily dragged into the present offence. Hence, it was requested by learned advocate for the appellant to enlarge the present appellant on

anticipatory bail in the event of his arrest.

From the other side, learned APP for the respondent -State and learned advocate for the respondent no.2 has strongly objected the submissions made

by learned advocate for the appellant and argued that the appellant is strong-headed person and Doctor in the present hospital and is misusing his

position and being influence person, no Nurse would be in a position to work and serve in the hospital. It is further submitted that the complaint about

harassment and molestation was done by the present appellant and because of fear of losing her job, and therefore, custody of the appellant is

necessary for proper investigation. Learned APP has drawn attention about prosecution witnesses from the police papers and argued that incident

was immediately informed to the sister namely Seema and Kantaben as well as Superintendent Ms. Gupta. It is further submitted that delay was

explained sufficiently by the complainant in lodging the complaint. Section 18 of the Atrocity Act clearly bars in granting anticipatory bail to the present

appellant. Learned APP has further submitted that statement of the complainant under Section 164 of the CrPC has been recorded. Learned advocate

for the respondent no.2 has filed his written objections on behalf of the original complainant, which is taken on record. Ultimately, learned APP for the

State and learned advocate for the respondent no.2 have requested to dismiss the present appeal.

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 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 else would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present

appellant of committing any offence under the provisions of Sections 3(1)(r) and 3(1)(s) of the Atrocity Act.

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, but this Court has made scrutiny of the complaint

and prima facie, it is found with malafide.

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 was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view.

Having considered the facts of the case, police papers and submissions made by learned advocate for the respective parties as well as learned APP

for the respondent-State, it appears that a complaint was lodged against the present appellant on 23rd November 2019 for the alleged offence

committed by the present appellant on 24th August 2019. The complainant, in her complaint, has tried to explain for lodging the complaint after a

period of three months approximately saying that before the Women Cell, he had lodged a complaint and she was awaiting of the outcome of the

complaint. Therefore, she has not approached the police authorities. From the entire complaint, no allegation of using any derogative words were made

by the complainant or shown that present appellant intimidated or humiliated her on her caste in a public place. It also appears from the record that

departmental inquiry was initiated by the department against the present appellant and is pending. The appellant has been transferred by the

department to Rajasthan after alleged incident .

Here, if we consider the entire complaint, ingredients of the offence, as alleged, are missing. In fact, no specific role was attributed against the present

appellant. Therefore, considering decision rendered in the aforesaid citations, present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated Criminal Misc. Application No. 706 of 2019 by learned

Additional Sessions Judge, Vapi at Vyara is hereby quashed and set aside. The appellant is ordered to be enlarged on bail in the event of his arrest on

furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that the appellant

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 27th January 2020 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 him

from disclosing such facts to the court or to any police officer;

(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;

(h) shall not enter into rural area of Ahmedabad District for a period of six months. In any case, if her presence is required to enter into such area, the

appellant may approach the learned Sessions Court concerned.

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 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 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.

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. Rule is

made absolute to the aforesaid extent. Direct service is permitted.