Chiragsinh Ghanshyamsinh Sisodiya vs State Of Gujarat

1. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act" for short) at the instance of the appellant- original accused for anticipatory bail in connection with the FIR being C.R. No.I-13 of 2019 registered with Dholka Rural Police Station, Ahmedabad (Rural) for the offences punishable under Sections 447, 435, 120(B), 506(2) of the Indian Penal Code read with Sections 3(2)3, 3(2) and (5a) of the Atrocity Act.

2. The case of the prosecution, in brief, is that there is a civil dispute going on and on the date of occurrence, at about 8.30 to 8.45, when the complainant and his nephew Shri Vijaykumar Jivanbhai Sonara reached near the field, they saw that some part of his land was burning and they saw three persons trying to run away from the field and at that time, they abused the caste of the present complainant and threatened the complainant. It is also alleged in the complaint that they have identified the three accused and shouted them but they did not stop and ran away and during that,

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one mobile of Virendrasinh was fallen down, which was produced before the concerned police station.

3. On the basis of the said complaint, the present appellant moved an application for anticipatory bail, being Criminal Misc. Application No.959 of 2019 before the Sessions Court, Ahmedabad (Rural), which came to be rejected opn 26.3.2019 by learned 12th (Ad-hoc) Additional Sessions Judge, Ahmedabad (Rural).

4. Being aggrieved and dissatisfied with the impugned order, the appellant has preferred this appeal and has stated that he has been falsely implicated and there is no specific role or overt act has been attributed top him in the FIR. It is also contended that the story given by the respondent No.2 is totally false as no specific allegation of abusing the caste of the complainant by the present appellant is made against him. It is contended that he is serving as LRD. It is also contended that the other co-accused who were directly involved in the alleged offence are already released on regular bail. According to him, there is no offence made out under the Atrocity Act and the allegation against him is not believable. He has also contended that he is serving in police department since last 3 years and if his bail is not granted, it will spoil his service. He has prayed to enlarge him on anticipatory bail.

5. heard learned advocate Mr. S.S. Saiyed for the appellant, learned Additional Public Prosecutor Ms. Monali Bhatt for the respondent No.1- State and learned advocate Mr. S.P. Kotia for learned advocate Mr. Devendra G. Rana for the respondent No.2- original complainant. Perused the material placed on record and made available by the prosecution.

6. Learned advocate Mr. Saiyed for the appellant has stated the same facts which are stated in the memo of the appeal and has stated that there is some civil dispute between the contesting party

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and at the relevant time, the appellant was not present at the place of occurrence and he has been falsely involved in the incident and there is no need of custodial interrogation of the appellant. Mr. Saiyed has prayed to enlarge the appellant on anticipatory bail.

7. Per contra, learned Additional Public Prosecutor Ms. Monali Bhatt for the State has vehemently opposed grant of anticipatory bail to the appellant and has stated that the present appellant has been named in the FIR and he is a police employee and he has taken part in the alleged offence. While referring to the statements of co-accused and call details, she has contended that on the date of occurrence, the present appellant had talked with one Virendrabhai whose mobile was found from the place of occurrence and according to the call details, conversation was proved to be occurred between the present accused and Virendrabhai. She has also contended that there is a prima facie material to show that the offence under the Atrocity Act has been committed and there is a bar of Section 18-A of the Atrocity Act and he being one of the conspirators to commit the alleged offence, his appeal for anticipatory bail should be dismissed.

8. Learned advocate Mr. Kotia for the original complainant has adopted the arguments of learned Additional Public Prosecutor and has submitted that there is a prima facie case against the present accused regarding commission of the offence under the Atrocity Act therefore, the appeal of the present appellant should be dismissed.

9. The Court has taken into consideration the law laid down by the Apex Court in the case of Ashabai Machindra Adhagale Vs. State of Maharashtra and others reported in (2009) 3 SCC 789, in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012)1 SCC 40, in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in (2008)12 SCC 531 and in the case of Dr. Subhash Kashinath

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Mahajan Vs. The State of Maharashtra and Another reported in AIR 2018 SC 1498.

10. Amended Section 18(A) of the Atrocity Act, which has been added by the legislature by Amendment Act of 2018, reads as under:-

"18A. (1) For the purposes of this Act,--

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to a case under this Act,notwithstanding any judgment or order or direction of any Court.".

10.1. For inserting this new provision of Section 18(A), the statement of objects and reasons thereof is necessary to be carved out. The statement of objects and reasons, which has been appended with the said Bill No.140 of 2018, is as under:-

STATEMENT OF OBJECTS AND REASONS The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (said Act) was enacted with a view to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes and to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. The said Act was amended in 2015 with an objective to deliver greater justice to members of the Scheduled Castes and the Scheduled Tribes.

2. In a recent judgment, the Supreme Court has held that a preliminary enquiry shall be conducted by a Deputy Superintendent of Police to find out whether allegations make out a case under the said Act before registering a First Information Report relating to commission of an offence and the approval of an appropriate authority shall be obtained before arrest of any person in connection with such offence.

3. However, the provisions of the Code of Criminal Procedure, 1973 provide that every information relating to commission of an offence, if given, shall be recorded and where the investigating

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officer has reason to suspect the commission of an offence, he can arrest a person and there is no requirement of conducting a preliminary enquiry before recording of any such information or obtaining of an approval from any authority before arresting any person. Moreover, such preliminary enquiry and approval would only delay the filing of a charge sheet.

4. The principles of criminal jurisprudence and section 41 of the Code of Criminal Procedure, 1973 as interpreted in several judgments, implies that once the investigating officer has reasons to suspect that an offence has been committed, he can arrest an accused. This decision to arrest or not to arrest cannot be taken away from the investigating officer.

5. In view of the above, it is expedient in the public interest that the provisions of the Code of Criminal Procedure, 1973 be made applicable in respect of registration of First Information Report relating to commission of an offence or arrest of any person without any preliminary enquiry or approval of any authority, as the case may be.

6. The Bill seeks to achieve the above objects.

10.2. In view of the statement of objects and reasons for the amendment of the Atrocity Act, it appears that due to the recent judgment of the Supreme Court holding that preliminary inquiry shall be conducted by Deputy Superintendent of Police to find out whether the allegations made out a case under the said Act before registering an FIR relating to the commission of an offence and approval of appropriate authority shall be obtained before arrest of any person in connection with such offence, this amendment is carried out in the Atrocity Act by inserting Section 18(A) thereof. It also appears from the statement of objects and reasons coupled with the provisions made in sub-Section (2) of Section 18(A), that this provision of sub-section (2) has been inserted only with a view to counter the directions issued by the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Another (supra), wherein in conclusion at para 83, the Apex Court has held as under:-

83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of

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court and are quashed.

ii) 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. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);

Iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded.

Such reasons must be scrutinized by the Magistrate for permitting further detention.

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

The above directions are prospective.

10.3. Thus, so far as the conclusion of para 83(i) and (ii) is concerned, there is no object and reason given for nullifying those observations.

10.4. It is also pertinent to note that the Union of India has also preferred review petition against the aforesaid judgment, being Review Petition (Criminal) of 2018 (Diary No.12243 of 2018) in Criminal Appeal No.416 of 2018, wherein, review has been sought for the conclusion at para 83(i) to (v). But, during the course of argument, the Supreme Court has considered only the directions at para (iii) to (v) of the original decision. Thus, even on reading of the amended provision of Section 18(A) coupled with the statement of objects and reasons for such amendment, it is apparent that the legislature has only made this amendment regarding nullifying the conclusion of the Apex Court in para 83(iii) to (v). Therefore, if in a given case, no prima facie case is made out or where on judicial

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scrutiny the complaint is found to be prima facie mala fide, then in that case, there is no absolute bar against grant of anticipatory bail in cases under the Atrocity Act.

11. On perusal of the material placed on record, it appears that the prosecution has heavily relied upon the conversation occurred between the present appellant and one Virendrasinh Sisodiya. On perusal of the chart made available to this Court for perusal regarding the call details and conversation thereof, it clearly shows that at the time of occurrence of the incident, presence of the accused is not at the place of occurrence but in the same village. Therefore, it is doubtful as to whether the complainant and witness Vijaykumar have really identified him.

12. On perusal of the material produced on record, it clearly appears that there is some doubt as to commission of the offence under the Atrocity Act by the present accused. Considering the material placed on record, without discussing it in detail, prima facie, this Court is of the considered opinion that the power under Section 438 of the Code of Criminal Procedure is required to be exercised in this case.

13. In the result, the present appeal is allowed and the order dated 26.3.2019 passed in Criminal Misc. Application No.959 of 2019 by learned 12th (Ad-hoc) Additional Sessions Judge, Ahmedabad (Rural) is quashed and set aside and it is directed that in the event of appellant herein being arrested pursuant to FIR registered as C.R. No.I-13 of 2019 registered with Dholka Rural Police Station, Ahmedabad (Rural), the appellant shall be released on bail on furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of like amount on the following conditions that the appellant shall :

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

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(b) remain present at concerned Police Station on 20.05.2019 between 11.00 a.m. and 2.00 p.m.;

(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;

(d) 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) at the time of execution of bond, furnish their addresses to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;

(f) not leave India without the permission of the Court and if having passports shall deposit the same before the Trial Court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

14. 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.

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15. 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.

16. The appeal stands disposed of, accordingly. Direct service is permitted TODAY.

(A. P. THAKER, J) OMKAR

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