Aliakbar Ibrahim Baloch vs State Of Gujarat

B.N. Karia, J

Present appellant filed Criminal Misc Application No. 6 of 2022 before the Court of learned 7th Additional Sessions Judge & Special Judge (Atrocity), Bhachau, Dist. Kutchh 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.11993004210514 of 2021 with Bhachau Police Station, Dist. Kutchh-East-Gandhidham for the offence punishable u/s. 142, 143, 147, 148, 149, 323, 324, 294(b), 506(2) of the Indian Penal Code and u/s.3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short “the Atrocity Act”) and Section 135 of Gujarat Police Act wherein, learned 7th Additional Sessions Judge & Special Judge (Atrocity), Bhachau, Dist. Kutchh rejected the said application vide order dated 15.1.2022.

Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14-A of the Atrocity Act.

Heard learned advocate for the applicant and learned APP for the respondent-State.

Learned advocate for the appellant has submitted that appellant has nothing to do with said offence. That, the present appellant has known the complainant and injured person and therefore, the appellant just went to hospital to ascertain the health and the name of the appellant was involved in the said offence. That, the complaint is nothing but is frivolous and vexatious and the ingredients of the alleged offences are not attracted, therefore, the same is abused of process. That, the appellant undertakes not to tamper with the evidence and not to misuse his liberty in any manner. Hence, it was requested by learned advocate for the appellant to enlarge the present appellant on anticipatory bail in the event of his arrest.

Learned APP for the respondent-State has strongly objected the submission made by learned advocate for the appellant and submitted that name of the present appellant is disclosed in the FIR from the beginning. That, complainant himself is injured in the offence and admitted in the Government Hospital and at that time appellant and Mr. Javed Bhatti went to the hospital and threaten the complainant with dare consequences. That, investigation is under progress and therefore, prayer made by the present appellant or story created by the appellant cannot be accepted at this juncture it is matter of evidence. Ultimately, learned APP for the State has requested to dismiss the present appeal.

No arguments were advanced by learned advocate for the respondent No.2, however, notice was duly served to respondent No.2.

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 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 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. This Court has made scrutiny of the complaint and prima facie, it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint.

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 gone through the facts of the case and the allegations made in the complaint as well as impugned order and affidavit of Investigating Officer, it appears that present appellant went into Government Hospital at that time as per the allegations made in the complaint, threat was given along with co- accused Javed Bhatti. If complainant wanted to file a complaint, he would face dare consequences. No other allegations made in the complaint by the respondent No.2. There is nothing on record about any criminal antecedents against the present appellant. No allegations are made against present appellant of insulting or intimidated the respondent No.2 in respect of his caste in a public view. In the complaint also no allegations are made to attract provisions u/s.3(1)(r), 3(1)(s), 3(2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 and u/s. 135 of Gujarat Police Act.

The decision of the Hon’ble Apex Court in Criminal Appeal No. 1311 of 2008 has referred Section 3(1)(x) of the Act which reads as under:-

3(1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribes:-

(x)intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.

In absence of any basic ingredients of the Act, no case is made out as alleged against the present appellant. Therefore, considering the 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 15.1.2022 passed in Criminal Misc. Application No. 6 of 2022 by learned 7th Additional Sessions Judge and Special Judge (Atrocity). Bhachau, Dist. Kutchh 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 16.3.2022 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 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;

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. Notice stands discharged.

Registry shall communicate this order to the concerned Sessions Court as well as jail authorities.