Bharatsinh Ratansinh Padhiyar vs State Of Gujarat

Ilesh J. Vora, J

By this appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) Act, 1989 (hereinafter referred to

as “the Atrocities Act†for short), the appellants have challenged the order dated 13.01.2021 passed in Criminal Misc. Application No.10/2021 by

learned 3rd Additional Sessions Judge, Vadodara at Karjan, whereby, the application filed by the appellants seeking anticipatory bail under Section 438

of the Cr.P.C in the event of their arrest in connection with the FIR being C.R.No.11197025201738/2020, registered at Karjan Police Station, Dist.

Vadodara, for the offence punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of

the Atrocities Act, has been dismissed.

Heard Mr.Viral Dave, learned counsel for the appellants, Ms. Krina Calla, learned APP for the respondent State and Mr. Nandish Thacker,

learned counsel for respondent No.2-original complainant.

Learned counsel for the appellants has raised the following main contentions :-

(I) The appellants are innocent and have been falsely implicated in the alleged offence.

(ii) That, the incident was happened due to cutting trees lying near the common lake of village;

(iii) That, the allegations made in the FIR do not attract the ingredients of provisions of the Atrocities Act;

In view of the above contentions, learned counsel for the appellants prays to grant anticipatory bail to the appellants in the event of their arrest.

On the other side, Ms. Calla, learned Addl. Public Prosecutor appearing on behalf of the respondent â€" State as well as Mr. Nandish Thackar,

learned counsel appearing for respondent No.2 pray for its rejection by contending that, on the basis of the allegations and material placed on record,

no case for grant of anticipatory bail is made out. They further submit that, Section 18-A of the Atrocities Act clearly bars to grant anticipatory bail

and therefore, prays that the appeal may be dismissed.

In the case of Subhash Kashinath Mahajan Vs. State of Maharashtra, [2018(6) SCC 454], the Apex Court held that, there is no absolute bar against

the 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.

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.

In the case of Pruthvi Raj Chauhan Vs. Union of India & Ors, [AIR 2020 1088] three Judges Bench of the Supreme Court read down Section 18

of the Atrocities Act by declaring as follows:

“Considering the applicability of provisions of Section 438 Cr.P.C, it shall not apply to the case under Act of 89. However, if complainant does not

make out a prima facie for applicability of the provisions of the Act, the bar created by Section 18 and 18A (i) shall not apply.â€​

Looking to the facts and circumstances of the case, more particularly, plain reading of the FIR shows that, on 22.10.2020, some of the trees at

village Khandha, Taluka Karjan, Dist. Vadodara, were uprooted and lying near the common village lake. The complainant along with one Mr.

Ghanibhai Imtiyazbhai had been entrusted to remove the trees which were lying near the lake. As a result, they had proceeded towards the place,

meanwhile, the present appellants came there and raised a dispute and caused voluntary injuries and also insulted with an intent to humiliate the

complainant being a member of scheduled castes and scheduled Tribes. In this background of the facts, FIR came to be lodged under the Indian Penal

Code and Atrocities Act.

It is an admitted fact that, for the alleged incident, cross complaints have been registered and there is delay of 15 days in lodging the FIR. It further

appears that, main dispute between the parties has arisen with respect to the trees, which were lying near the lake as the complainant intends to

remove it at the instance of wood trader. It also appears that the learned Court below without considering the factual aspect of the case, straightaway

refused to grant of anticipatory bail. It is also pertinent to note that, no recovery is required to be effected and the appellants have no criminal past

antecedents. They have joined the investigation and are not likely to abscond. Under such circumstances, this Court is inclined to extend the benefit of

bail. Accordingly, without expressing any opinion on merits of the case, present appeal deserves consideration.

In the result, present appeal is allowed and the impugned order order dated 13.01.2021 passed in Criminal Misc. Application No.10/2021 by

learned 3rd Additional Sessions Judge, Vadodara at Karjan, is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the

event of their arrest in connection with the FIR being C.R.No.11197025201738/2020, registered at Karjan Police Station, Dist. Vadodara, 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 25.06.2021 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 them

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 their residence

till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial

court within a week;

(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 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. 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. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute

to the aforesaid extent.