Pratikkumar Rajeshbhai Patel Vs State Of Gujarat - Shonee Kapoor

Court: HIGH COURT OF GUJARAT AT AHMEDABAD

Bench: JUSTICE S.H.VORA

Pratikkumar Rajeshbhai Patel Vs State Of Gujarat on 24 January 2019

Law Point:  

JUDGEMENT

1. Admit. Learned A.P.P. Mr.Pranav Trivedi and learned advocate Ms.S.M. Rana waive service of notice of admission for the respondent – State and respondent No.3 respectively.

2. By way of the present appeal under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the ‘Act’)., the appellant – original accused challenges the order dated 02.01.2019 passed by the learned Special (Atrocity) Judge and 3rd Additional Sessions Judge, Sabarkantha District, Himmatnagar in Criminal Misc. Application No.1135 of 2018 whereby, the learned Sessions Judge refused to grant anticipatory bail under Section 438 of the Code of Criminal Procedure to the appellant in connection with the F.I.R. being C.R.No.II-3056 of 2017 registered with Himmatnagar ‘B’ Division police station for the offence punishable under Sections 504 and 506(2) of the Indian Penal Code and Sections 3(1)(r)(s) and 3(2)(v)(a) of the R/CR.A/83/2019 ORDER said Act.

3. Learned advocate Ms.S.M. Rana for respondent No.3 files affidavit-in-reply which is ordered to be taken on record.

4. Learned advocate Ms.S.M. Rana for respondent No.3 would submit that quashing proceeding initiated by the appellant was rejected and further, text of the SMS messages, prima facie, indicates that there is commission of offence under the provisions of the said Act and, therefore, no discretionary powers should be exercised against the appellant.

5. Section 3 of the said Act obliges the complainant in opening recital, to plead the case that the accused is not the member of the said Act. No such plea is taken in the F.I.R. itself and, therefore, amended provisions of Section 18 of the said Act will not come into play in the present proceedings in view of the decision rendered in the case of Georige Pentaiah v/s. State of Andra Pradesh reported in 2008 (12) SCC 531.

6. Having heard submissions made at bar, it appears that there exists dispute between the parties to the proceedings, substantial investigation is over and no any other offence is registered against the appellant and, therefore, in view of the law laid-down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in [2011] 1 SCC 6941, present appeal deserves consideration.

7. In the result, the present appeal is allowed. Impugned order dated dated 02.01.2019 passed by the learned Special (Atrocity) Judge and 3rd Additional Sessions Judge, Sabarkantha R/CR.A/83/2019 ORDER District, Himmatnagar in Criminal Misc. Application No.1135 of 2018 is hereby quashed and set aside by directing that in the event of arrest of the appellant herein pursuant to FIR registered as C.R.No.II-3056 of 2017 registered with Himmatnagar ‘B’ Division, he shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten 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;
(b) 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;
(c) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(d) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;
(e) 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;
(f) remain present before the concerned Investigating Officer on 31.01.2019 at 11:00 am. for investigation purpose.
8. 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 R/CR.A/83/2019 ORDER 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.

9. 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.

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