Mahendra @ Maliyo Ramabhai Parmar vs State Of Gujarat

Admit. Learned A.P.P. waives service of notice of admission for the respondent - State and learned advocate Ms.Ashlesha Patel waives service of notice of admission for respondent No.2 - original complainant.

This criminal appeal is filed u/s 14(1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short, the "Atrocity Act") against the order dated 24.01.2019 passed by the learned Special Judge and 3rd Additional Sessions Judge, Nadiad in Criminal Misc. Application No.103 of 2019 (Special Atrocity Case No.22 of 2018) whereby, the learned Judge rejected regular bail application preferred by the appellant u/s 439 of the Code of Criminal Procedure, 1973 to enlarge the appellant on regular bail in connection with the FIR being registered vide I-C.R.No.62 of 2018 with Mahudha Police Station for the offences punishable u/s 376(2)(L), 323, 504 and 506(2) of the Indian Penal Code and Sections 3(1)(R) (W)(1)(2) and 3(2)(5-A) of the Atrocity Act.

Having heard submissions made at bar by the learned advocate for the appellant, learned advocate Ms.Ashlesha Patel for respondent No.2 and considering the chargesheet papers supplied by the learned A.P.P. during the course of hearing, it appears that the prosecutrix is blind, only one eye-witness - Mr.Bhopabhai has witnessed the incident but, his statement is not recorded, chargesheet is filed, no any other identical offence is registered against the appellant, the appellant is identified by the prosecutrix on the basis of appellant's voice and further, there is no any medical evidence and the F.S.L. report is nil.

So far as case under the provisions of Section 3 of the Atrocity Act is concerned, necessary averment that the appellant is not the member of Scheduled Caste or Scheduled Tribe is lacking from the FIR and in similar circumstances, in Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in (2008) 12 SCC 531, the FIR itself was quashed. Even otherwise, the appellant ought to have been considered for bail. Therefore, non-consideration has resulted into miscarriage of justice. The impugned order, therefore, cannot be sustained and the same be quashed and set aside and the appellant is ordered to be admitted to bail.

In the result, present criminal appeal is allowed and the impugned order dated 24.01.2019 passed by the learned Special Judge and 3rd Additional Sessions Judge, Nadiad in Criminal Misc. Application No.103 of 2019 (Special Atrocity Case No.22 of 2018) is hereby quashed and set aside. The appellant is ordered to be enlarged on bail on furnishing a bond of Rs.10,000/- with surety of like amount on the following condition that the 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] not leave the territory of India without prior permission of the Sessions Judge concerned;

[d] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.

[e] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned;

The competent authority will release the appellant only if the appellant is not required in connection with any other offence for the time being.

6.1. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.

6.2. Bail bond to be executed before the lower court having jurisdiction to try the case.

6.3. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.

6.4. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the appellant on bail.

The criminal appeal is accordingly allowed. Direct service is permitted.