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2020 Supreme(Guj) 899
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Prafulbhai @ Prafulkumar Vasudevbhai Pandya – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No. 760 of 2020
Decided On : 23-12-2020
Advocate Appeared:
For the Appellant : Mr. Aditya J. Pandya.
For the Respondents: Ms. Nilam N. Chauhan, Ms. M.H. Bhatt.
Point of Law: According to Section 3(i)(x) of the Atrocity Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe, he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view
Headnote:
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 - Sections 3(1)(r) and 3(2)(va)- Code of Criminal Procedure, 1973- Section 438 – Bail application – Rejection of bail application - Involvement of present appellant is clearly established by the prosecution as he has uttered words inserting the caste of the members of the ST/SC and therefore, clearly attracted the provisions of Sections 3(1)(r) and 3(2)(va) of the Atrocity Act
Finding of the Court: The present appellant was also discussing vedic angle of eclipse while another participant was countering the same on scientific basis. If we consider the transcript of entire debate produced on record, there was not a remotest reference to any Scheduled Tribes or Scheduled Caste or any members of the same. It appears that entire debate was center around effects of eclipse. On this background, allegations of prosecution regarding uttering of the words would require to be judged. From the bare reading of Section 3(1)(r) of the Atrocity Act, essential ingredients would be (1) mens rea i.e. intention to insult any member of SC/ST, (2) insult or humiliation of a member of SC/ST. From the transcript produced on record, it clearly transpires that there was no intentional utterance. No offence in absence of any intention can be made out by the prosecution. If we consider second ingredients to attract proviso of Section 3(1)(r) of the Atrocity Act, there has to be an actual insult/humiliation of members of SC/ST. It appears that same were not uttered with reference to any member of SC/ST, even remotely. Entire transcript would not suggest that subject matter of discussion was any member or the entire community of SC/ST community. If we consider Section 3(2)(va) of the Atrocity Act, this would be attracted if any offence as specified in the scheduled is committed by the accused. In the FIR, no charge is levelled against the appellant with any of the scheduled offence, and therefore, on the face of it, Section 3(2)(va) of the Atrocity Act would not be attracted.
Result: Criminal Appeal is allowed
ORDER :
1. The appellant has filed Criminal Misc. Application No. 1535 of 2020 before the Court of learned 7th Additional District and Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad u/s. 438 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on anticipatory bail in the event of his arrest on account of offence being registered vide C.R. No. 11191020201222 of 2020 with Vastrapur Police Station, Ahmedabad City for the offence punishable under Sections 3(1)(r) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short ‘the Atrocity Act’) wherein, the learned 7th Additional District and Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad rejected the said application on 22.07.2020.
2. Feeling aggrieved by the said order, the appellant preferred said appeal u/s. 14A of the Atrocity Act.
3. Heard learned advocates for the respective parties and learned APP for the respondent-State.
4. Learned advocate for the appellant has submitted that the appellant is innocent person and has not committed any alleged offence and appellant is not connected in any manner whatsoever with the alleged commission of offence. That, nowhere mentioned by the complainant that present appellant has insulted or intimidated with an intention to humiliate in a place within public place. That, the basis ingredients of the offence are missing in the complaint and no offence under the Atrocity Act has been committed by the present appellant. That, specific role of the present appellant was not disclosed in the complaint. That, present appellant is unnecessarily dragged into the present offence. Hence, it was requested by learned advocate for the appellant to allow present application.
5. Learned APP for the respondent-State and learned advocate for respondent no. 2 have referred the statement of Arunkumar Shankarbhai Patel and Tarunbhai Ganpatlal Solanki and submitted that both of the witnesses have supported a clear terms of the prosecution case. That no Sections 18 and 18A of the Atrocity Act and there is a bar of Section 438 of the Cr.P.C. That prima-facie involvement of present appellant is clearly established by the prosecution as he has uttered words inserting the caste of the members of the ST/SC and therefore, clearly attracted the provisions of Sections 3(1)(r) and 3(2)(va) of the Atrocity Act. That appellant was telecasting the program within a public view and number of persons were participated. As the appellant is involved in the offence, Trial Court has rightly rejected the prayer made by the appellant not to release him in the event of his arrest and therefore, it was requested by learned APP for the respondent-State and learned advocate for respondent no. 2 to dismiss present appeal.
6. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath Mahajan vs. State of Maharashtra, 2018 (6) SCC 454, wherein the Hon'ble Supreme Court has held that 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. View taken by the High Court of Gujarat in the case of Pankaj D. Suthar (supra) and Dr. N.T. Desai (supra) was approved by the Hon'ble Supreme Court. From the averments made in the complaint, basic ingredients of the offence, as alleged are missing in the complaint. Merely any particular word alleging someone caste would not involve the present appellant in the offence. There are no specific allegations made by the complainant against the present appellant in his complaint of committing any offence under the provisions of Sections 3(2)(5)(a), 3(g), 3(p), 3(r), 3(s), 3(z)(c) and u/s. 8 of the Atrocity Act.
7. In the case of Union of India vs. State of Maharashtra in Review Petition (Cri.) No. 228 of 2018 in Criminal Appeal, it was opined that direction nos. (iii) and (iv) issued by the Hon'b
