Divyeshkumar Bharatbhai Patel vs State Of Gujarat

Umesh A. Trivedi, J

Heard Mr. Dharamveersinh J. Solanki, learned advocate for the respective appellants.

These Appeals are preferred by the respective appellants praying for an order in the nature of anticipatory bail in connection with the FIR being C.R. No. 11210066230025 of 2023 registered with Pal Police Station, Surat, where offence alleged against them under Sections 354(D)(1) and 114 of the Indian Penal Code as also under Sections 3(2)(v)a, (w)(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act”).

Though endorsement on the cause-list shows that respondent No.2 is served, but she is neither present in person or through an advocate.

Mr. Solanki, learned advocate for the appellants submitted that not only the husband of the first informant, even the appellants are also serving in the Surat Municipal Corporation. Over and above that, the first informant is also serving as temporary labour in the Rander Zone of Surat Municipal Corporation. Since the appellants were communicating about the visitors to the first informant, she was keeping grudge against the appellants and therefore, while first informant was working with the appellants on a truck for the purpose of repairing and maintaining the public road, she has alleged that intentionally the appellants were touching her, which is of a sexual nature and is without her consent. He has further submitted that even accepting the allegation levelled in the First Information Report, it doesn’t constitute any offence under “the Atrocities Act”. He has further submitted that since no offence under “the Atrocities Act” is said to have been committed, for an offence under Section 354(D) of IPC, which is bailable one, merely because of an offence under “the Atrocities Act” is involved, they may not be refused an order of anticipatory bail.

As against that, Mr. K.M.Antani, learned Additional Public Prosecutor for the respondent – State submitted that since as per the allegations levelled in the FIR, an offence under IPC is invoked, which falls within the schedule provided under Section 3(2)(v)(a) of “the Atrocities Act”, is rightly invoked and therefore, relief of anticipatory bail is specifically barred under Section 18 of “the Atrocities Act” and therefore, both these appeals may be dismissed.

Having heard the learned advocate for the appellants, learned Additional Public Prosecutor and going through the FIR as also the impugned order and the documents annexed with the appeals, it appears that not only the first informant but her husband and the present appellants are serving in the Surat Municipal Corporation. Though the husband of the first informant is serving in different department of Surat Municipal Corporation, the present appellants are said to have providing information to her husband in respect of visitors to the first informant, she had a grudge against the appellants and therefore, the present FIR appears to have been filed. Though much can be said about or concluded here, with a view not to prejudice the case of anyone, it is avoided hereafter. However, hearing the learned advocate for the appellants and going through the contents of the FIR and the order impugned, I am satisfied, without concluding that no prima facie case as exists under “the Atrocities Act”, that the appellants deserve an order of anticipatory bail.

Hence, the present appeals are allowed. The appellants are ordered to be released on bail in the event of their arrest in connection with the FIR being C.R. No. 11210066230025 of 2023 registered with Pal Police Station, Surat, on their executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand Only) each with one surety of like amount on the following conditions:

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

(b) shall remain present at concerned Police Station on 09.03.2023 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 their residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand of the appellants 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 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 the anticipatory bail order.

Accordingly, the present appeals are allowed. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order. Direct service permitted.