Roshniben W/O Niralbhai Khalas vs State Of Gujarat

Hemant M. Prachchhak, J

This is an appeal under Section 14(A) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocity Act” for short) at the instance of the appellant – original accused for the anticipatory bail in connection with the FIR being C.R.No. 11191015220641 of 2022 registered with Nikol Police Station, District: Ahmedabad City for the offences under Sections 143, 147, 148, 149, 324, 294B, 506(2), 114, etc. of the Indian Penal Code, Section 135(1) of the G.P. Act and Section 3(1)(r), 3(1)(s), 3(2)(v-a) of the Atrocity Act.

Heard Mr.Sanjay Prajapati, the learned counsel appearing for the appellant and Mr.L.B. Dabhi, the learned Additional Public Prosecutor appearing for the respondent – State.

Mr.Prajapati, the learned advocate for the appellant has submitted the same facts which are narrated in the memo of appeal and has prayed to release the appellant on bail.

Per contra, Mr.Dabhi, the learned Additional Public Prosecutor for respondent No.1 - State has vehemently opposed the grant of bail and submitted that looking to the gravity and nature of offence, the present appeal may be dismissed.

On perusal of the material placed on record, it appears that there was a scuffle between two families. The first FIR is filed by the appellant and for the very same incident, after 9 days the present FIR has been filed by the complainant, wherein the appellant is shown as accused. However, considering the medical certificate, more particularly, the history given by the injured, it clearly reveals that the role alleged against the present appellant is not serious in nature. Considering the averments made in the FIR, it appears that there is doubt as to the commission of the offence under the provisions of the Atrocity Act and the offence under the provisions of the Indian Penal Code. Now, considering the material placed on record, this Court is of the opinion that without discussing the evidence in detail and when there is no prima facie case under the Atrocity Act then the power under Section 438 of the Criminal Procedure Code is available to this Court and considering the factual aspects of the present case, the appeal is required to be allowed.

In the result, the present appeal is allowed. The impugned order dated 10.10.2022 passed by the learned 8th Additional District & Sessions Judge, Mirzapur, Ahmedabad Rural, District: Ahmedabad in Criminal Misc. Application No.3072 of 2022 is hereby quashed and set aside. It is ordered that in the event of appellants herein being arrested pursuant to FIR being C.R.No. 11191015220641 of 2022 registered with Nikol Police Station, District: Ahmedabad City, the appellant shall be released on bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of like amount on the following conditions that the appellant shall :

(a) cooperate with the investigation and make available for interrogation whenever required;

(b) shall not remain personally present before the concerned police station, but as and when the Investigating Officer wants their presence, they may inform well in advance;

(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;

(d) 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) at the time of execution of bond, furnish her address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;

(f) not leave India without the permission of the Court and if having passports 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 remand of the appellant. The appellant 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 appellant, 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. The appeal stands disposed of, accordingly.

Direct service is permitted.