Arjanbhai @ Aju Sela Jograna vs State Of Gujarat

Umesh A. Trivedi, J

This is an Appeal filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred

to as “the Atrocity Actâ€) by the appellant challenging the order passed by learned 2nd Additional Sessions Judge and Special Judge,

Surendranagar dated 06.06.2019 in Criminal Misc. Application No.486 of 2019 whereby application for regular bail in connection with offence

punishable under Sections 332, 379,354,323,147,148,149,504, 506 (2) of the Indian Penal Code as also under Sections 25(1), 25(1)(b)(a), 27 of the

Arms Act and Sections 3 (1) (r), (s) , 3 (2) (va) , 3 (1) (w) (ii) of the Atrocity Act registered with Chotila Police Station,District: Surendranagar, being

C.R. No. I 31 of 2019 which came to be rejected.

Pursuant to the notice of admission of this appeal, respondent no.2 Jagrutiben D/o. Laljibhai, who is first informant in this case, is present before the

Court.

Heard learned advocates appearing for the parties.

Mr.Jayant Panchal, learned Senior Advocate for Mr.Ashish Dagli, learned advocate for the appellant submits that offences alleged against the

appellant are maximum punishable within five years only. He has further submitted that even if taking case at its highest, as submitted in the papers of

the investigation, majority of the offences are bailable. At the same time, there is no punishment provided beyond seven years. He has further

submitted that so far as offence under the Atrocity Act is concerned, maximum punishment would be five years and therefore, the appellant is

required to be released on bail. He has further submitted that as per the case of the prosecution, the appellant has used fire arms and opened fire in air

atleast three rounds. There is nothing on record to even suggest commission of that offence. He has further submitted that neither fire-arm is

recovered or discovered, no any empties or remnants recovered from the scene of offence, and therefore, with a view of make offence more serious,

it has been falsely mentioned in the FIR. He has further submitted that first informant is serving in the Forest Department as I/c. Range Forest Officer

and due to her high handed action, village people have made representation against her as they were also harrased. He has further submitted that even

the appellant had made a representation to the highest Police Officer to carry out independent and impartial investigation into the case. He has further

submitted that since about a month, the appellant is in jail, and therefore, he has requested to grant him regular bail, pending trial. Mr. Jayant Panchal,

learned Senior Advocate for Mr.Ashish Dagli, learned advocate for the appellant placed on record a copy of oral order dated 03.04.2017 passed by

this Court in Criminal Misc. Application No.8565 of 2017 wherein the first informant, for very same sort of allegation filed another case against other

accused which has been compounded at her instance, as disclosed in the said order. Copy of said order is taken on record. Relying on the said order, it

is contended that she is in a habit of filing such complaints against citizens.

Heard Mr.Rashesh Rindani, learned APP as also Ms.Jagrtuiben D/o.Laljibhai, first informant, who is present in the Court. It is submitted that

looking to the statements of the witnesses, who accompanied her at the time of offence and considering the same with medical certificates issued by

the government doctor, incident as alleged in the FIR, has occurred, and therefore, appellant should be detained in jail. At the same time, it is submitted

by the first informant that even subsequent to the registration of offence though appellant being in custody, she along, with her husband is being

threatened to settle the dispute and therefore, it is submitted that appellant may not be released on bail.

Having gone through the impugned order as also papers of investigation, it is clear that offence as alleged, even if presumed to have been

committed, maximum punishment provided for the same is not beyond five years. Considering the scene of offence panchnama as shown by first

informant as also other relevant material with regards to inspection of the place, without further dwelling in detail, it is difficult to decide on competing

claims. However, any discussion, in detail, with regard to material collected during the course of investigation may prejudice the case of either side.

Though there are more than three cases filed against the appellant of similar nature, according to learned advocate for the appellant, he has already

been on bail. Considering the investigation carried out so far, without recording any finding, which may affect either side, it is clear that the appellant is

entitled for bail, pending trial. At the same time, statement made by first informant with regards to threats administered to her at the instance of

appellant cannot be believed for the present, as there is no contemporaneous record to support the same nor any FIR or even application is filed

against the appellant in any police station or any department. Once striking fact requires to be mentioned is that husband of the first informant is also

serving in the police department and earlier he was in Chotila Police Station. Therefore, if the fact of administering threat is true and correct,

immediately FIR or application could have been filed, and therefore, it appears that such statement made by first informant is without any support to it.

The present appeal is therefore allowed. The appellant is ordered to be released on regular bail in connection with C.R. No.I-31 of 2019 registered

with Chotila Police Station, District: Surendranagar on executing a personal bond of Rs.25,000/- (Rupees Twenty Five 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 passport, if any, to the lower Court within a week;

(d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

(e) furnish the present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not

change the residence without prior permission of this Court;

(f) the appellant shall not enter into Chotila Taluka till examination of the first informant is over before the Trial Court. He is permitted to enter in

Chotila only for the purpose of marking presence and as soon as its over , he shall leave said area immediately.

This Court has taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of

Investigation reported in [2012] 1 SCC 40.

The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the

above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or

relax any of the above conditions, in accordance with law.

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. Direct service is permitted.