B.N. Karia, J
However, notice was duly served to the respondent No.2, but nobody was appeared to contest this Criminal Appeal for and on behalf of the
respondent No.2.
Present appellant filed Criminal Misc. Application No. 49 of 2022 before the Court of learned 3rd Additional Sessions Judge & In-charge Special
Judge (Atrocity), Bharuch u/s 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail in the event of his
arrest on account of offence being registered vide C.R. No.11199027211600 of 2021 with Jambusar Police Station, Dist. Bharuch for the offence
punishable u/s. 323, 504, 506(2) and 114 of the Indian Penal Code and u/s.3 (1)(r), 3(1)(s), 3(2)(va)of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocity) Act, 1989 (for short “the Atrocity Actâ€) wherein, the learned 3rd Additional Sessions Judge & In- charge Special Judge
(Atrocity), Bharuch rejected the said application vide order dated 21.1.2022 Feeling aggrieved by the said order, the appellant preferred said appeal u/s
14-A of the Atrocity Act.
Heard learned advocate for the appellant and learned APP for the respondent-State.
Learned advocate for the appellant has submitted that appellant is falsely implicated in the said offence by the investigating agency and no prima facie
case is made out against the appellant. That, appellant is an innocent person and he has not committed any offence as alleged offence. That, police
has falsely implicated the appellant in the present case. That, learned 3rd Additional Sessions Judge, Bharcuh has not appreciated the legal facts of the
record and also not appreciated the legal position of the law and dismissed the application. That, appellant has not played any direct or indirect role in
the alleged offence. That, appellant is falsely roped in the alleged offence by the complainant merely on the basis of suspicion. That, appellant was
elected as member of Taluka Panchayat and to merely seek revenge and wrek havoc on the appellant, he has been involved in the alleged offence.
That, appellant along with the other elected members of the Taluka Panchayat made an application against the relatives of the complainant before the
District Collector, Bharuch stating that the complainant as well as the other relatives are habitual to making complaint under the provisions of Atrocity
Act, 1989. Hence, it was requested by learned advocate for the appellant to enlarge the present appellant on anticipatory bail in the event of his arrest.
From the other side, learned APP for the respondent -State has opposed the submissions made by learned advocate for the appellant and submitted
that complaint itself shows that prima facie case is
made out against the present appellant. That, no prayer in nature of anticipatory bail can be granted to the present appellant, considering his
involvement established by the prosecution. That, Section 18A of the Act clearly bars to grant of anticipatory bail as prayed by the present appellant.
Therefore, no prayer may be granted by this Court for enlarging them on anticipatory bail. Ultimately, learned APP for the State has requested to
dismiss the present appeal.
Having considered the facts of the case, police papers and submissions made by learned advocate for the applicant as well as learned APP for the
respondent-State, it appears that offence was registered with Jambusar Police Station being C.R. No.11199027211600 of 2021 for the offence
punishable u/s. 323, 504, 506(2) and 114 of the Indian Penal Code and u/s.3 (1)(r), 3(1) (s), 3(2)(va)of the Atrocity Act. Further it appears from the
record that accused Nos. 1, 2 and 3 were released on regular bail by the learned Sessions Court.
If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan Vs. State of Maharashtra reported in
2018(6) SCC 454, wherein the Hon'ble Supreme Court has held that there is no absolute bar against 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. View taken by the
High Court of Gujarat in the case of Pankaj D. Suthar (supra) and Dr.N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the
averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging
someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present
appellant in his complaint of committing any offence under the provisions of the Atrocity Act.
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. This Court has made scrutiny of the complaint and
prima facie, it is found that there are no specific averments, attracting the provisions of the Act as mentioned in the complaint.
In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme Court Cases 531, it was held that according to
Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a
Scheduled Tribe, he was was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view.
From the record, it appears that present appellant is implicated in the alleged offence with a view to seek revenge against the result of election.
Appellant appears to be involved in a political party and complaint is made by respondent No.2 to implicate him in the alleged offence. That, appellant
was elected as member of Taluka Panchayat and therefore to take revenge, complaint appears to be filed by respondent No.2 Further, it appears that
appellant along with the other elected members of the Taluka Panchayat have filed one complaint against the relatives of the complainant before the
District Collector, Bharuch stating that the complainant as well as other relatives are habitual of making complaint under the provisions of Atrocities
Act. Further, to attract Section 3(1)(r), 3(1)(s) as well as 3(2)(va) as alleged by the prosecution, intention on the part of the accused persons to
intimate with intent to humiliate a member of Scheduled Caste or a Scheduled Tribe in any place within public view is must. The complaint is
completely silent in respect of alleged intention of the appellant humiliating him being member of Scheduled Caste or a Scheduled Tribe in a place
within a public view. Further, there is no disclosure that present appellant has misused by caste name in a place within public view. There is no
allegations made in the complaint that present appellant is knowingly committed any offence in respect of property against respondent no.2 being
member of Scheduled Caste or a Scheduled Tribe. The section applied by the prosecution appears to be doubtful in the present case.
Considering the peculiar facts of the case and submissions made by learned advocate for the appellant as well as learned APP and fact that three
other co-accused are released on regular bail by the learned Sessions Court, there are no averments made in the complaint to attract any provision of
Atrocities Act, prayer made by the appellant requires consideration.
The decision of the Hon’ble Apex Court in Criminal Appeal No. 1311 of 2008 has referred Section 3(1)(x) of the Act which reads as under:-
3(1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribes:-
(x)intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.
In absence of any basic ingredients of the Act, no case is made out as alleged against the present appellant. Therefore, considering the decision
rendered in the aforesaid citations, present appeal deserves consideration.
In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 21.1.2022 passed in Criminal Misc. Application No. 49 of
2022 by learned 3rd Additional Sessions Judge and In-charge Special Judge (Atrocity), Bharuch is hereby quashed and set aside. The appellant is
ordered to be enlarged on bail in the event of his arrest on furnishing a bond of Rs. 10,000/- with surety of like amount on the following conditions that
the appellant:-
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on 4.5.2022 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 address to the investigating officer and the court concerned and shall not change his 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 application for remand if he considers it proper and just the learned Magistrate would decide it
on merits; an and
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 appellant on bail.
Direct service is permitted.