Vanzara Sushilaben Gulabsinh vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Mr. Manish S. Shah on behalf of the appellants, learned Additional Public Prosecutor Mr. L.B. Dabhi on behalf of respondent No.1-State and learned Advocate Mr. Umarfaruk M. Kharadi for the respondent No.2- first informant.

By way of this appeal filed under Section 14A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,1989 read with Section 438 of the Code of Criminal Procedure, 1973, the appellants pray for being released on anticipatory bail in connection with F.I.R. No. 11207048220304 of 2022 registered with Morva Police Station, District Panchmahal, on 15.05.2022 for the offences punishable under Sections 323, 337, 504, 506(2), 427 of the Indian Penal Code, Section 135 of the Gujarat Police Act and also under Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

ADMIT. Learned APP Mr. Dabhi and learned Advocate Mr. Kharadi waive service of notice of admission of behalf of the respective respondents.

Learned Advocate Mr. Manish Shah for the appellants would submit that while the first informant has levelled allegations against the appellant No.1 who is the Sarpanch of village Agarvada and her husband i.e. the appellant No.2, and according to the learned Advocate, the entire story is cooked up just to settle political scores with the appellant No.1. Learned Advocate would submit that apart from the allegations levelled under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the other allegations are such that the present appellants might have been enlarged at the stage of the learned Sessions Court itself and whereas it is submitted that just with a view to aggravate the allegations, the offences under the said Act have been included. Learned Advocate would submit that as such, the wife of the elder brother of the first informant, one Jashwantbhai, had contested for the post of Member of the Agarvada Gram Panchayat, more particularly the village in which the appellant No.1 is the Sarpanch and whereas it is also submitted that a relative of the witness cited in the FIR one Bhupatsinh Pratapsinh Baria had also contested the election. Learned Advocate would also draw the attention of this Court to an application dated 20.12.2021, whereby serious allegations have been levelled against the said Bhupatsinh and whereas learned Advocate would submit that on behalf of the appellants, a learned Advocate had submitted an application to the Investigating Officer under the RTI Act and whereas it clearly appears that the application had been submitted to the police authorities at the relevant point of time. Learned Advocate would submit that the FIR, has also resulted in notice being issued to the appellant No.1 to call for a No Confidence Motion and whereas according to learned Advocate, if within 15 days of recipt of the said notice, if No Confidence Motion is not called for by the appellant No.1 as the Sarpanch, then the appellant No.1 risks of being disqualified as a Member of the Gram Panchayat itself. Learned Advocate relying upon the said document would submit that prima faice the allegations against the present appellants, more particularly appellant No.1 are clearly motivated by political considerations, and therefore, this Court may release the present appellants on anticipatory bail.

Learned Advocate Mr. Shah for the appellants on instructions states that the appellants are ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for their remand. Learned Advocate would further submit that upon filing of such application by the Investigating Agency, the right of appellants-accused to oppose such application on merits may be kept open.

This appeal as well as submissions of learned Advocate Mr. Shah have been vehemently opposed by learned Additional Public Prosecutor Mr. Dabhi appearing on behalf of the respondent-State, who would submit that Panchnama of the place where the incident had happened would show that damage had been caused to the property of the first informant. Learned APP would submit that there are statements of witnesses also, which would support the say of the first informant. Learned APP would submit that under such circumstances the appellants may not be released on anticipatory bail by this Court. To a specific query by this Court, learned APP would submit that except one witness Bhupatsinh Baria referred to hereinabove, all other witnesses are relatives of the first informant.

Submissions of learned Advocate Mr. Shah for the appellants have also been vehemently objected to by learned Advocate Mr. Kharadi for the first informant. Learned Advocate Mr. Kharadi would submit that at the stage of considering an application for grant of anticipatory bail, only a prima facie case is required to be seen and whereas perusal of the FIR reveals that a prima facie case is made out against the appellants, and therefore this Court may not interfere in the present appeal. To a specific query by this Court as to whether learned Advocate would be able to deny the fact that sister-in-law of the first informant was a person who has contested the Gram Panchayat election, learned Advocate Mr. Kharadi, would fairly submit that he could not deny the same.

Having heard the learned Advocates for the parties and having perused the documents given by learned Advocates for the parties as well as documents provided by the learned APP, the following relevant aspects are considered by this Court:

[1] That the allegations against the present appellants are of having assaulted brother of the first informant and having uttered caste related abuses, at the same time, from the submissions of learned Advocate Mr. Shah, prima faice it appears to this Court that the allegations are motivated.

[2] That from the Investigating Papers it appears that while damage has been caused to the property of the first informant, it also appears that the value of the damage caused was assessed at Rs. 500/-. Thus, prima faice, there appears to be some frivolity in the case of the prosecution.

[3] It also appears that the present appellants, had given an application against the only independent witness to the incident one Bhupatsinh Baria on 20.12.2021 and whereas it appears that receipt of the said application, more particularly the application making serious allegations, had been acknowledged by the officers of the concerned police station under the RTI Act.

[4] It also appears that while the present appeal is under consideration of this Court, a notice has been given to the appellant No.1 herein, calling upon the appellant No.1 as Sarpanch to call for a meeting for moving No Confidence Motion within a period of 15 days from the date of receipt of such notice. Such notice being given on 28.06.2022, the appellant No.1, risking her post as Sarpanch and also as Member of the Gram Panchayat, if the meeting as required is not conducted.

Having regard to the above, more particularly considering the fact that the damage caused to the property was only assessed at approximately Rs.500/- and further also considering the fact the only the independent witness, appears to have axe to grind against the present appellants and since prima facie it appears to this Court that the allegations appear to be political motivated, prima facie this Court is of the opinion that the prosecution is frivolous and hence not even a prima facie case is made out which would persuade this Court to refuse to grant of anticipatory bail to the appellants. Having regard to the same and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this appeal.

In the result, the present appeal is allowed by directing that in the event of appellants herein being arrested pursuant to the F.I.R. No. 11207048220304 of 2022 registered with Morva Police Station, District Panchmahal, the appellants shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with one surety of like amount, on the following conditions:

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

(b) shall remain present at the concerned Police Station on 13.07.2022 between 11:00 a.m. and 2:00 p.m.;

(c) shall mark presence at the concerned Police Station once in a month for a period of six months;

(d) 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;

(e) 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;

(f) 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 or till further orders;

(g) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.

Despite this order, it would be open for the Investigating Agency to file an application for police remand of the appellants to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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 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 is allowed in the aforesaid terms.

Direct service is permitted.