Imtiyazbhai @ Into Sahebkhan Kureshi Vs. State Of Gujarat and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1175611
CourtGujarat High Court
Decided OnNov-05-2014
Case NumberCriminal Misc. Application (For Anticipatory Bail) No. 16349 of 2014
JudgeA.J. DESAI
AppellantImtiyazbhai @ Into Sahebkhan Kureshi
RespondentState Of Gujarat and Another
Excerpt:
noneoral order: 1. by way of the present application under section 438 of the code of criminal procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in case of his arrest in connection with the fir registered at c.r. no.i- 33 of 2014 with umalla police station, bharuch. 2. since the respondent state of gujarat has opposed this bail application mainly on the ground that this application is filed for anticipatory bail under section 438 of code of the criminal procedure and since the applicant has committed the offence under the provision of sc/st act, hence he is not entitled for such prayer which is specifically barred under the provision of section 18 of the sc/st act. 3. brief facts arise from the record are as under: 3.1 that one lady namely afsana - wife of the kalubhai, one of the accused in the present case, eloped with one anilbhai and stayed at allahabad for few days. subsequently pursuant to compromise arrived at between the parties, the said lady went back to her matrimonial house. the said anilbhai consumed poison on 30/06/2014. pursuant to which, father of the said anilbhai lodged an fir for the above referred offence. hence, the present application. 4. mr. b.p.patel, learned advocate for the applicant would submit that the applicant is driver of two accused and has not played any active role in commission of the offence. 5. in support of his case, mr.patel, learned advocate for the applicant has relied upon the decision in case of vilas pandurang pawar vs. state of maharashtra reported in (2012) 8 scc 795 and would submit that while considering the case under the provisions of section 438 of the code of the criminal procedure with regard to the offence committed under the provisions of the scst act, the court has to take into consideration the papers of investigation whether any prima facie case is made out or not. 6. on the other hand, mr. h.k.patel, learned app would submit that there are serious charges against the present applicant, and therefore, he is not entitled for any anticipatory bail and when specific provision of section 18 is there, the court should not exercise its power. 7. i have heard learned advocate for the respective parties and perused the complaint as well as the papers of investigation. i have also considered the statements of the witnesses. prima facie, at this stage, i am of the opinion that there is no intention on the part of the present applicant to take part in the alleged offence the apex court has held in para 9 and 10 in the case of vilas pandurang pawar (supra), which reads as under: 9. section 18 of the sc/st act creates a bar for invoking section 438 of the code. however, a duty is cast on the court to verify the averments in complaint and to find out whethere an offence under section 3(1) of the sc/st act has been prima facie made out. in other words, if there is a specific averment in the complaint, namely insult or intimidation with intent to humiliate by calling with caste name, the accused persons are entitled to anticipatory bail. 10. the scope of section 18 of the sc/st act read with 438 of the code is such that it creates a specific bar in the grant of anticipatory bail. when an offence is registered against a person under the provisions of the sc/st act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. moreover, while considering the application for bail, scope for appreciation of evidence and other material or record is limited. the court is not expected to indulge in critical analysis of evidence on record. when a provision has been enacted in the special act to protect the persons who belong to the scheduled castes and the scheduled tribes and a bar has been imposed in granting bail under section 438 of the code, the provision in the special act cannot be easily brushed aside by elaborate discussion on the evidence. 8. i have also considered that fact that the dispute is in trivial nature and amicably settled between the parties and the parties are residing peacefully in the village. i have also considered the fact that other accused have been enlarged on bail. i have taken into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, i am inclined to grant anticipatory bail to the applicant. this court has also taken into consideration the law laid down by the honble apex court in the case of siddharam satlingappa mhetre vs. state of maharashtra and ors. as reported at [2011] 1 scc 6941, wherein the honble apex court reiterated the law laid down by the constitution bench in the case of shri gurubaksh singh sibbia and ors., as reported at (1980) 2 scc 665. 9. in the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to fir registered at c.r. no.i- 33 of 2014 with umalla police station, the applicant shall be released on bail on furnishing a personal bond of rs.10,000/- (rupees ten 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 the applicant remain present at concerned police station on 12.11.2014 between 11.00 a.m. and 2.00 p.m.; (c) 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; (d) 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; (e) 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 till further orders; (f) shall not leave india without the permission of the court and if having passport 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; 10. despite this order, it would be open for the investigating agency to apply to the competent magistrate, for police remand of the applicant. the applicant 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 applicant, 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. 11. at the trial, the trial court shall not be influenced by the prima facie observations made by this court while enlarging the applicant on bail. rule is made absolute to the aforesaid extent. direct service is permitted.
Judgment:

Oral Order:

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered at C.R. No.I- 33 of 2014 with Umalla Police Station, Bharuch.

2. Since the respondent State of Gujarat has opposed this bail application mainly on the ground that this application is filed for anticipatory bail under section 438 of Code of the Criminal Procedure and since the applicant has committed the offence under the provision of SC/ST Act, hence he is not entitled for such prayer which is specifically barred under the provision of Section 18 of the SC/ST Act.

3. Brief facts arise from the record are as under:

3.1 That one lady namely Afsana - wife of the Kalubhai, one of the accused in the present case, eloped with one Anilbhai and stayed at Allahabad for few days. Subsequently pursuant to compromise arrived at between the parties, the said lady went back to her matrimonial house. The said Anilbhai consumed poison on 30/06/2014. Pursuant to which, father of the said Anilbhai lodged an FIR for the above referred offence. Hence, the present application.

4. Mr. B.P.Patel, learned advocate for the applicant would submit that the applicant is Driver of two accused and has not played any active role in commission of the offence.

5. In support of his case, Mr.Patel, learned advocate for the applicant has relied upon the decision in case of Vilas Pandurang Pawar Vs. State of Maharashtra reported in (2012) 8 SCC 795 and would submit that while considering the case under the provisions of Section 438 of the Code of the Criminal Procedure with regard to the offence committed under the provisions of the SCST Act, the Court has to take into consideration the papers of investigation whether any prima facie case is made out or not.

6. On the other hand, Mr. H.K.Patel, learned APP would submit that there are serious charges against the present applicant, and therefore, he is not entitled for any anticipatory bail and when specific provision of section 18 is there, the Court should not exercise its power.

7. I have heard learned advocate for the respective parties and perused the complaint as well as the papers of investigation. I have also considered the statements of the witnesses. Prima facie, at this stage, I am of the opinion that there is no intention on the part of the present applicant to take part in the alleged offence The Apex Court has held in para 9 and 10 in the case of Vilas Pandurang Pawar (supra), which reads as under:

9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in complaint and to find out whethere an offence under section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely insult or intimidation with intent to humiliate by calling with caste name, the accused persons are entitled to anticipatory bail.

10. The scope of Section 18 of the SC/ST Act read with 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material or record is limited. The Court is not expected to indulge in critical analysis of evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.

8. I have also considered that fact that the dispute is in trivial nature and amicably settled between the parties and the parties are residing peacefully in the village. I have also considered the fact that other accused have been enlarged on bail. I have taken into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also taken into consideration the law laid down by the Honble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, wherein the Honble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia and Ors., as reported at (1980) 2 SCC 665.

9. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered at C.R. No.I- 33 of 2014 with Umalla Police Station, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten 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 the applicant remain present at concerned Police Station on 12.11.2014 between 11.00 a.m. and 2.00 p.m.;

(c) 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;

(d) 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;

(e) 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 till further orders;

(f) shall not leave India without the permission of the Court and if having passport 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;

10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant 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 applicant, 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.

11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.

Direct service is permitted.