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2019 Supreme(Guj) 323
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Dinesh Muljibhai Bagada - Appellant
Versus
State of Gujarat - Respondent
R/Criminal Appeal No. 380 of 2019
Decided On : 11-04-2019
For the Appellant : Mr Ashish M Dagli.
For the Respondent: mr. Manoj T Danak, MS Moxa Thakkar, ADDL
Headnote:
Tribes (Prevention of Atrocities) Act, 1989, Section 14(A)(2) - Indian Penal Code,1860, Sections 306 and 114, 438, 41 -Atrocity Act, Section 3(2)(5), 18(A) -Money Lending Act, Sections 40 and 42(d) -Learned advocate for the appellant submits that he does not press the appeal qua appeal stands disposed of qua appellant -Appeal under Section of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act at the instance of the appellants-original accused for anticipatory bail in connection with the FIR being-of registered with Police Station for the offences punishable under Sections and of the Indian Penal Code Sections of the Money Lending Act and Section of the Atrocity Act –Held, Considering the material placed on record it transpires that there is prima facie material appears against the appellant for the alleged offence of the Atrocity Act -Considering the overall facts and circumstances of the case without discussing the material on record it prima facie appears that the discretionary power under Section of the Code of Criminal Procedure is required to be exercised in his favour -Supreme Court has considered only the directions at para of the original decision -Even on reading of the amended provision of Section 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 if in a given case no prima facie case is made out or where on judicial 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 -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 -Without prejudice to the right of the accused to seek stay against an order of remand ultimately granted and the power of the learned Magistrate to consider such a request in accordance with law -It is clarified that the appellant 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 -Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging appellant -Appeal qua appellant is allowed.
1. At the time of dictation, learned advocate Mr. Ashish M. Dagli for the appellant No.1 submits that he does not press the appeal qua appellant No.1- Dinesh Muljibhai Bagada. Hence, the appeal stands disposed of qua appellant No.1. Notice is discharged. Now, this appeal is restricted only qua appellant No.2-Kiritbhai @ Mama Vallabhbhai Kalariaya.
2. 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 appellants-original accused for anticipatory bail in connection with the FIR being C.R. No.I-02 of 2019 registered with Jamkandorna Police Station, Rajkot (Rural) for the offences punishable under Sections 306 and 114 of the Indian Penal Code, Sections 40 and 42(d) of the Money Lending Act and Section 3(2)(5) of the Atrocity Act.
3. It is the case of the appellants that complainant Virabhai Keshubhai Parmar alleged that on 31.12.2019, at about 8.30, the complainant was at his work place, his father was was not present and at about 2 O'clock, in the afternoon, the complainant got call that his father was not well and was admitted in Sukhwala doctor at Gondal and on such information being received, he went to the said place and found that his father has passed away. It is alleged that thereafter, the deceased was taken to the Government hospital at Jamkandorna for postmortem. It is alleged that one Manish told the complainant that at about 2 O'clock, his father was sitting near the tree and he was unconscious and from the dickey of the motorcycle, a chit was found wherein his father had noted that because of financial crisis, he has taken this step and one Dinesh and Kirit have taken the benefit of his father and therefore, he had taken this step.
3.1. It is stated in the FIR that his father was earlier residing in a rented premise of one Dineshbhai and due to that they came in contact and afterwards, the father of the complainant and Dineshbhai had worked together for construction work and they had worked together in partnership. It is also contended that both were doing the business together and bank account was also opened in SBI Bank and RDC Bank at Rajkot. It is also contended that the father of the complainant was also running a society in the name of Balaji Madh wherein his father was President and the complainant was Secretary.
4. It is contended by the appellants that they have preferred anticipatory bail application before the Sessions Court, Dhoraji, being Criminal Misc. Application No.27 of 2019, which has been rejected by learned Sessions Judge, Dhoraji on 8.2.2019.
5. It is contended that the appellants are falsely implicated and they have not committed any offence as alleged in the complaint. It is also contended that appellant Dineshbhai who is proprietor of D.M. Construction at Ambedkarnagar, Rajkot, has participated in so many tender proceedings and agreements were done for construction work with the Deputy Engineer, R&B Department and the deceased was working on some occasion wherein the D.M. Construction received an order as sub-employee. It is also contended that Kiritbhai is not in any way related to any affairs of the deceased. It is also contended that there was no transaction between the petitioner No.2 and the deceased. They have also contended that they are ready and willing to give full cooperation to the investigating agency and in fact custodial interrogation of the appellants may not be warranted and on all these grounds they have prayed to enlarge them on anticipatory bail.
6. The complainant- respondent No.2 has filed affidavit-in-reply, wherein he has opposed the appeal on the ground that due to harassment of the appellants with regard to finance, his father has committed suicide. It is also contended that though his father had paid all the amounts borrowed from the appellants with interest, they demanded the amount with some oblique motive.
