Imrankhan Mubarakkhan Baloch vs State Of Gujarat

B.N. Karia, J

1 . The appellants have filed Criminal Misc. Application No. 119 of 2019 before the court of learned 3rd Additional Sessions Judge, Deodar Dist: Banaskantha u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellants on anticipatory bail in the event of their arrest on account of offence being registered vide C.R. No. I-35 of 2019 with Deodar Police Station for the offence punishable u/s. 354(A), 294(Kh), 323, 506(2) and 114 of the Indian Penal Code and u/s. 3(1)(r)(s), 3(1)(w)(i) and 3(2)(5A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocity Act"), wherein the 3rd Additional Sessions Judge, Deodar, Dist: Banaskantha rejected the said application.

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

3 . Heard learned advocates for the respective parties and learned APP for the respondent no. 1-State.

4 . Learned advocate for the appellants has submitted that while rejecting the application of the appellants, no cogent reasons were assigned by learned Additional Sessions Judge. That, no offence has been made out against the present appellants. It is further submitted that basic ingredients of the offence are missing in the complaint and no offence under the Atrocity Act as well IPC is committed by the present appellants. That, only to harass and pressurize the appellants, present complaint has been filed, on the contrary, no such incident has been taken place and in stereo type and flimsy manner false FIR came to be lodged against the present appellants. That, so called incident was taken place on 10.04.2019 at about 3.00 pm and FIR came to be lodged at 10.30 pm means after almost 7 hours and 30 minutes and therefore, it seems afterthought and false and creates doubt and no tenable in the eyes of law. That, the present appellants are unnecessarily dragged into the present offence. That, the complainant Savitaben daughter of Merubhai Savdasbhai Majirana and injured witnesses namely Pintubhai Majirana and Mukeshbhai Majirana have filed their affidavits stating that compromise was arrived at between the parties and thus, if the bail of the present applicants would be granted then they have no objection. Hence, it was requested by learned advocate for the appellants to enlarge the present appellants on anticipatory bail in the event of their arrest.

Learned APP for the respondent State has strongly objected the submissions made by learned advocate for the applicant and submitted that at this juncture, alleged settlement taken place between the parties cannot be considered as the investigation is under progress. While referring police papers of the prosecution, learned APP has submitted that injured persons have clearly stated in their statements before the Police about the incident taken place and injuries caused to them by the present appellants with the weapon. That, injury certificates also supports the case of the prosecution. That, no powers vested upon this Court under the Atrocity Act can be exercised for releasing the present appellants on anticipatory bail. That, if the appellants would be released on bail then they would win over the prosecution witnesses and ultimately, it was requested by her to dismiss present application.

From the other side, learned advocate for the respondent no. 2 has submitted that the settlement is arrived at between the parties and has produced xerox copies of the affidavit filed by the respondent no. 2-Savitaben daughter of Merubhai Savdasbhai Majirana as well as injured persons namely Pintubhai Merubhai Majirana and Mukeshbhai Merubhai Majirana. Learned advocate has further submitted that such an accident was not taken place and the respondent no. 2 has no objection if the prayer made by the present applicant would be granted by this Court.

Having gone through the police papers and contents of the complaint and as per facts of the case as well as submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State, it appears that certain allegations were made by the complainant in her complaint before the police. It is also shown from the complaint, some injuries were caused to the brother of the complainant namely Mukeshbhai Majirana and Pintubhai Majirana. From the injury certificate shown to the Court by learned APP, it appears that very simple injuries such as abrasion as well as tenderness were caused to them. In the affidavits filed by both of these persons i.e., Mukeshbhai Majirana and Pintubhai Majirana, they have clearly submitted about any such incident and also submitted about compromise arrived at between the parties. As the respondent no. 2 has no objection if the applicants would be released on bail, this court deems it fit to exercise the discretion by enlarging the present appellants on anticipatory bail.

8 . Therefore, considering decision rendered in the case of Gorige Pentaiah (supra), present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 07.05.2019 passed in Criminal Misc. Application No. 119 of 2019 by learned 3rd Additional District Judge, Deodar Dist Banaskantha is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of their arrest 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 himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 11th December 2019 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 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 they consider it proper and just and the learned Magistrate would decide it on merits;

(h) shall not enter into the village of the complainant for a period of four months.

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.

11 . 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.

At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the appellants on bail.

Direct service is permitted. Notice stands discharged.