Mahendrasinh Pravinsinh Rajput @ Parmar vs State Of Gujarat

B.N. Karia, J

Present appellant has filed Criminal Misc. Application No. 91 of 2022 before the court of learned 6th Additional District Judge, District Banaskantha at Palanpur u/s 439 of the Code of Criminal Procedure, 1973 requesting to enlarge him on regular bail on account of offence being C.R. No. 11195024220073 of 2022 registered with Gadh Police Station, District: Banaskantha for the offence punishable under Sections 143, 337, 294(B), 506(1) of the Indian Penal Code; Section3(i)(r), 3(1)(s), 3(1)(za)(B), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short “the Atrocities Act”) wherein the learned learned 6th Additional District Judge, District Banaskantha at Palanpur rejected the said application on 19.02.2022.

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

Heard learned advocate for the appellant; learned advocate for the respondent no.2 and learned APP for the respondent-State.

Learned advocate for the appellant has submitted that the present appellant has been wrongly involved in the offence by the respondent no.2. Referring the complaint lodged by the respondent no.2, it is submitted that in fact the appellant has tried to give correct advice with a request to leave the place otherwise there would be no good things from the side of the complainant. Except this, no role was committed by the present appellant to involved in the offence. Referring Section 3(1)(za)

(B) of the Atrocities Act, it was submitted by learned advocate for the appellant that the Act itself is not applied in the present case looking to the facts of the case. It was submitted that FIR itself is prima facie false and fabricated and the entire incident is got up incident. While referring the FIR, it was submitted by learned advocate for the appellant that on 02.02.2022, the complainant desired to mounting a hourse and thereafter, meeting was held by the village people and decision was taken by the complainant that not to perform Varghodo function, and therefore, also Section 3(1)(za)(B) of the Atrocities Act has not been attracted prima facie. It was further submitted that out of 28 accused persons barring the present appellant, 20 accused persons are protected by this court in Criminal Misc. Application No. 3703 of 2022 and 7 accused persons are protected by this court in Criminal Misc. Application No. 3704 of 2022 vide order dated 18.02.2022. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge rejecting the bail application of the appellant and release the present appellant on regular bail.

Learned APP for the respondent-State and learned advocate for the respondent no.2 have strongly objected the submissions made by learned advocate for the appellant. Referring a complaint lodged by the respondent no.2 and submitted that present appellant himself opposed for wedding ceremony through Vargodo by the respondent no.2 in a public place. That, in presence of the police officials as granted by the State, present appellant threatened the respondent no.2 to leave the place of the offence otherwise he would suffer dire consequences. That, prima facie involvement of the present appellant is established by the prosecution and court has to protect the interest of the respondent no.2 as he is a member of SC/ST community. Further, he has referred Section 3(1)(za)(B) of the Atrocities Act and argued that appellant has opposed in public place for wedding process or mounting a horse by the respondent no.2. That, prima facie involvement of the present appellant is found in the present case and ultimately, it was requested by learned advocate for the respondent no.2 and learned APP for the respondent no.1 to dismiss present appeal.

Having considered the facts of the case, submissions made by learned advocate for the appellant; learned advocate for the respondent no.2 and learned APP for the respondent-State as well as documents produced on record, it appears that as per FIR, son of the complainant was to be married on 8th February 2022 and complainant and his family members have arranged a wedding procession of groom on Horse (VARGHODO in vernacular language) and the protest atmosphere been arisen in the village since being a member of Scheduled Caste and therefore, request for police protection was made. From the contents of the FIR, it appears that accused nos. 1, 2 and 10 opposed to perform any function by mounting a horse. On 06.02.2022, being Sarpanch, the accused no.1 told to the nephew of the complainant, who decided not to perform Varghodo function and then, the village people gathered along with all the accused persons and protested and threatened not to perform Varghodo function. It appears that thereafter, an application was given by the complainant for police protection. On 7th February 2022, at the time of departure of jaan, the accused nos. 4, 10 and 11 came and used words against the caste and abused the complainant and pelted with stoned wherein relatives were injured. As per the contents of the FIR, appellant requested to go back and the complainant was returned. It is alleged that since the appellant was hurt with certain words, and therefore, complainant filed this FIR wherein present appellant was arrested on 09.02.2022.

This court would like to refer Section 3(1)(za)(B) of the Atrocities Act, which is reproduced as under:

“mounting or riding bicycles or motor cycles or wearing footwear or new cloths in public places or taking out wedding procession, or mounting a horse or any other vehicle during wedding processions.”

From the entire complaint, if we peruse then it is admitted fact that there was no mounting or riding bicycles or motor cycles or wearing footwear or new cloths in public places or taking out wedding procession, or mounting a horse or any other vehicle during the wedding processions. Only allegation made in the complaint the present appellant was to leave the place of the offence otherwise there would be no good things. Except this, no other words are there or allegations in the complaint against the present appellant. No specific role is attributed to any other accused also in the complaint. From the record also, it appears that out of 28 accused, 27 accused persons are protected by this court vide order dated 18.02.2022 in Criminal Misc. Application No. 3703 of 2022 and Criminal Misc. Application No. 3704 of 2022.

Considering the peculiar facts of the present case, this Court is of the view to exercise the discretion in favour of the present appellant by releasing him on regular bail and present appeal deserves consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 19.02.2022 passed by the learned 6th Additional District Judge, BK District at Palanpur in Criminal Misc. Application No. 91 of 2022 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant 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 India without prior permission of the concerned Trial Court;

[e] furnish the present address of 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] mark his presence before the concerned Police Station on alternate Monday of every English calendar month between 11.00 a.m. and 2.00 p.m. till filing of the charge sheet.

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 prima facie observations made by this Court in the present order.

Direct service is permitted.