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Judgment
,
Ilesh J. Vora, J",
This is an appeal under Section 14 A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as",
“Act 1989â€, for short) challenging the order dated 05.03.2021 passed by learned Additional Sessions Judge, Bharuch, in CRMA No.175/2020 in",
connection with the FIR being C.R No.11199001201186 of 2021 registered with C â€" City Police Station, Dist. Bharuch, for the offences punishable",
under Sections 302, 323, 325, 504, 506(2) and 114 of IPC and Sections of the 3(1)(r), 3(1)(s), 3(2)(V)A and 3(2)(v) of the Atrocities Act.",
Rule. Ld. Counsel appearing for the respective respondents waive Service of Rule for the respective respondents.,
Heard Mr. N.D.Nanavaty, learned Senior Counsel for Mr.Yash Nanavaty, learned counsel for the appellant â€" accused, Mr. Hardik Soni, learned",
APP for the respondent No.1-State and Mr. Parvez Pathan, learned counsel for respondent No.2 through video conferencing.",
The brief facts of the prosecution are that, on 17.12.2020, the complainant deceased - Jashubhai Dayalbhai Jadav went to ‘Kutch Super",
Store’, situated at Vrajvihar Society at Bharuch for purchasing of grocery. When he was at the payment counter, the accused Dinubha Shivsinh",
was also present for payment. The deceased intends to put his purchased items at the counter, but the place was occupied by the accused Dinubha.",
The deceased Jashubhai made a request to give place to put his grocery, but instead of giving place, the accused Dinubha annoyed and started abusing",
him and verbal altercation was arisen. Thereafter, the complainant Jashubhai left the store and was standing near the store to purchase vegetables,",
meanwhile, the accused Dinubha, present appellant Pravinsinh and other two persons, came at the place where the complainant was standing and he",
was abruptly beaten up by the accused Dinubha and co-accused. According to the case of the prosecution, all the accused had inflicted fist and kick",
blows upon the complainant, as a result, the complainant suffered severe fracture over his hip and on his left great toe. It is alleged that, at the place,",
the appellant Pravinsinh facilitated the other co-accused to run away from the spot and hurled the abuses and uttered offensive words amounting to,
the offence under the Atrocities Act. The complainant Jashubhai was taken to the private hospital of Dr. Abhishek Darji where he was admitted for,
treatment and operation was performed for fracture of hip and was discharged on 23.12.2020. During the stay at the hospital, the FIR came to be",
lodged by the complainant Jashubhai for the offences as referred above. On 27.12.2020, Jashubhai Jadav succumbed to the injuries and as per the PM",
report, the cause of death was “hemorrhagic shock due to severe and diffused lungs injury following chest injury and due to right hip and limbs",
injuryâ€. The investigation has been thoroughly carried out and accordingly, the present appellant and co-accused have been arrested and finally,",
chargeshee in this regard has been filed.,
Before filing of the chargesheet, the appellant had filed bail application before the court of learned Addl. Sessions Judge, Bharuch, which came to",
be rejected. Thereafter, the bail application was filed before this Court which came to be withdrawn by the appellant. After filing of the chargesheet,",
the appellant had preferred successive bail application being CRMA No.175/2021 before the court of learned Sessions Judge, Bharuch, which also",
came to be rejected vide order dated 05.03.2021. While rejecting the said bail application, learned Sessions Judge, Bharuch, observed that, the",
eyewitnesses have supported the case of the prosecution and considering the nature of offence, severity of punishment, gravity of accusation, the",
Court is not inclined to exercise its discretion in favour of the appellant.,
Referring to the facts of the FIR and chargesheet case papers, it is the submissions of Mr. N.D.Nanavaty, learned Senior Counsel for the appellant",
that, the appellant herein is innocent and falsely implicated as accused; the appellant had not inflicted any injury to the complainant, which is evident",
from the FIR and statement of the witnesses; no grievous injuries as per the medical papers and there is a contradiction with ocular and medical,
evidence. Learned Sr. Counsel further would submit that, considering the case of the prosecution it appears that, due to trivial altercation at the",
supermarket, which had been finally culminated into physical assault by main accused - Dinubha Shivsinh, the deceased had suffered injuries as",
mentioned in the medical certificate. Under the circumstances, it was pointed out that, considering the role attributable to the present appellant, prima",
facie it is not established that, the appellant had caused the injuries as alleged.",
In the aforesaid background facts, learned Sr. Counsel would submit that, when chargesheet is already filed, further detention of the appellant as",
pre-trial prisoner would not serve any purpose and therefore, the appeal may be allowed and the appellant may be enlarged on bail with appropriate",
terms and conditions whatever deem it fit by this Court.,
On the other hand, learned APP Mr. Hardik Soni, appearing for the respondent State opposed the bail contending that, the name of the appellant",
has been specifically disclosed in the FIR by the deceased and his role in the commission of present crime is also prima facie established from the,
charge-sheet case papers. Therefore, considering the seriousness of the offence and severity of the sentence of punishment, the appeal may not be",
entertained.,
Mr. Parvez Pathan, learned counsel for respondent No.2 reiterating the contents of the affidavit in reply, contended that, there is specific allegation",
made in the FIR by the deceased to the effect that, the appellant and other co-accused have assaulted the deceased. He would further urge that, if the",
appellant is released on bail, the appellant being a headstrong person, he would be able to influence the witnesses or temper the evidence. Under the",
circumstances, the learned counsel for respondent No.2 prays for dismissal of the appeal.",
This Court has perused the materials placed on record in the form of chargesheet. This Court is conscious of the fact that, this is not the stage",
where it can be gone into the merit or demerit of the case, appreciation of the evidence or any other criteria touching upon the merits of conviction or",
acquittal at the end of trial. The law in regard to grant or refusal of bail is very well settled. The court while granting bail should exercise its discretion,
in judicious manner and not as a matter of course. The question whether the accused is admitted to be bail or not is dependent on variety of,
circumstances and the most acceptable being (a) whether there is any prima facie or reasonable ground to believe that, the accused has committed",
the offence (b) nature and gravity of charge, (c) severity of punishment in the event of conviction (d) denger of accused absconding or fleeing the",
cause of justice (e) character, behavior, position and standing of the accused in the society (f) likelihood of offence being repeated and (g) reasonable",
apprehension of the appellant tempering with the prosecution witnesses.,
In the background of the aforesaid settled position of law and having regard to the facts of the case, this Court is of the prima facie view that, on",
17.12.2020, when deceased Jashubhai left the super market and was standing nearby market to purchase vegetables, he was assaulted by the accused",
Dinubha and other co-accused. The record further indicates that, the complainant Jashubhai was conscious at the time of incident and also at the",
hospital when his FIR was recorded by the investigating officer. Under the circumstances, after close scrutiny of the FIR disclosed by the deceased",
and his further statement subsequently recorded by the investigating officer, it prima facie shows that, the appellant came at the place later on i.e.",
after the complainant was assaulted by the main accused Dinubha and his accomplished. Therefore, considering the role attributable to the present",
appellant in the alleged crime, without discussing further on the merits of the case, this Court is of the view that, the appellant has made out a case for",
bail. This Court is of the view that, merely accused is charged with the serious offence by itself not a ground to deny bail if there are other",
circumstances justifying grant of bail.,
No.,Conditions
(a),not take undue advantage of liberty or misuse liberty;
(b),not act in a manner injuries 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 Sessions Judge concerned;
(e),"furnish latest 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 the trial Court;