Kanubhai Ramabhai Parmar vs State Of Gujarat

B.N. Karia, J

The appellants have filed Criminal Misc. Application No.580 of 2019 before the court of learned 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar u/s 438 of the Code of Criminal Procedure,1973 requesting to enlarge them on anticipatory bail in the event of their arrest on account of offence being registered vide I - C.R. No. 122 of 2019 with Prantij Police Station, Sabarkantha for the offence punishable u/s 304, 337 and 114 of the Indian Penal Code, u/s 7, 9, 2(D) of the Prohibition Employment As Manual Scavenger Their Rehabilitation Act and also u/s 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for R/CR.A/2268/2019 ORDER short "the Atrocity Act"), wherein learned 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar rejected the said application on 20.11.2019.

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

Heard learned advocate for the appellants, learned advocate for the respondent no.2 and learned APP for the respondent no.1− State of Gujarat.

Learned advocate for the appellant has submitted that looking to the allegations made in the F.I.R. in its entirety the same does not disclose any prima facie case against the appellants who are falsely implicated in the offence. That, looking to the F.I.R., the basic ingredients of the alleged offence is not found and no overtect is attributed to either of the appellants. That, necessary precautions were taken by the appellants and sewerage workers were never asked to go into the manhole and necessary equipments were also provided to them. But, complainant and deceased voluntarily not to choose and use same and it is the question that why they inserted the R/CR.A/2268/2019 ORDER pressure pipe into the manhole and that is how unfortunately incident has been occurred. At the incident, the appellants have not attributed any role or not committed any negligency. In the entire F.I.R., there is no whisper whatsoever, about the allegations of disrupting the complainant or the victim in the name of their caste in a public view and no allegations thereof are made and thus merely to increase gravity of the offence basic ingredients though not satisfied at all. That, appellants, respondent No.2 as well as the wife of the deceased have settled the dispute amicably of their will and volition. Hence, it was requested by learned advocate for the appellant to enlarge the present appellants on anticipatory bail in the event of their arrest.

From the other side, learned advocate for the respondent no.2 has submitted that as respondent No.2 has filed his affidavit and affirmed that the dispute is settled between the appellants and respondent No.2.The respondent No.2 has no objection if this Court may enlarge the appellants on Anticipatory Bail. Learned advocate for the respondent No.2 R/CR.A/2268/2019 ORDER has also submitted that an affidavit of wife of the Badarji @ Bahadurbhai Masar is filed by her wherein she has stated that on account of negligence of her husband, this accident was occurred. She has also further submitted that the dispute is peacefully and amicably settled and she has received an amount of Rs.2 Lakhs from the State Welfare Board. She has no objection in enlarging the present appellants on anticipatory bail.

Learned APP for the respondent no.1 has objected the submissions made by learned advocate for the appellants/respondent no.2. It is submitted that serious allegations are made against the present appellants, they are government contractor as well as Sanitary Inspector of Nagar Palika, remained absent at the time of incident, when this offence was committed. That, no precautions were taken by the present appellants to avoid such an incident. Learned APP has strongly relied upon the statements of the witnesses recorded by Investigating Officer including the Chief Officer of the Nagar Palika and notification issued by the State of Gujarat R/CR.A/2268/2019 ORDER dated 16. 12.2016 and argued that while cleaning the underground and drainage, responsible Officer/Supervisor were required to be present. Indisputedly appellants were not present when the offence was committed and one person was died. That, involvement of the appellants is prima facie, proved by the prosecution. Hence, it was requested by learned APP for the respondent no.1 to dismiss the present appeal.

Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent−State, it appears from the complaint lodged by the respondent No.2 before the police that while entering into the manhole, necessary instruments were available at the place of the offence but the deceased and the complainant refused to wear the helmet or to use the instruments which were required for them. Lid of gutter was opened by the deceased and suddenly his leg was slipped and he felt down into the sewerage, thereafter, hearing their shout other persons namely Bhavansingh as well as Rajnikant and others gathered there and tried to save Badarji @ Bahadurbhai R/CR.A/2268/2019 ORDER Masar. Thus, Rajnkant and Bhavansingh also entered into the sewerage but there was some poisonous smell, Rajnkant and Bhavansingh came out from the sewerage. Rajnikant was unconscious and he was shifted to the Government Hospital, Prantij. During this time Kanubhai Ramabhai Parmar, who is the appellant No.1 reached at the place of the offence and found that Badarji @ Bahadurbhai Masar was expired.

Prima facie, it appears that necessary precautions were taken by the present appellants but the deceased himself by an accident slipped in the sewerage and therefore, this accident was taken place.

From the statement of the Chief Officer also it appears that on account of slipping leg of deceased in the sewerage this accident was taken place in absence of Sanitary Inspector as well as the contractor− i.e. present appellants. If we consider the resolution of the State of Gujarat dated

12.2016, at the time of sewerage/drainage cleaning, responsible officer of the Municipal Corporation would remain present to take care of the employees.

From the contents of the complaint, it appears that deceased and other persons went into the sewerage to clean it without any safety devices. Respondent No.2 has no objection as the dispute is amicably settled with the present appellants. Wife of the deceased−Laxmiben Bahadurbhai Masar has also filed her affidavit raising no dispute in enlarging the present appellants on Anticipatory Bail as she has received an amount of compensation. Considering the facts of the case, this Court is of the opinion to exercise powers under Section 438 to enlarge the appellants on Anticipatory Bail in the event of their arrest.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 20. 11.2019 passed in Criminal Misc. Application No. 580 of 2019 by learned 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar 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 themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 5th 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 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 addresses 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 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 R/CR.A/2268/2019 ORDER 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.

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. Notice is discharged.

Direct service is permitted.