Point of law: petitioner is a lady accused and even considering the provision of section 437(ii) of Code of Criminal Procedure which gives powers to the Magistrate to release certain category of person by the Magistrate even if the offence punishable with death for imprisonment of life or even if earlier convicted of the offence. Hence, mainly on the ground that the petitioner is a lady accused, discretion is required to be exercised in her favour.

ORDER :

1. Present petition has been preferred by the petitioner - original accused No.7 under section 438 of the Code of Criminal Procedure in connection with the F.I.R. bearing C. R. No. 11214008202061 of 2020 registered at Bardoli Police Station, District: Surat Rural, for the offence punishable U/Ss.364-A, 323, 342, 504, 506(2), 427 and 114 of Indian Penal Code (“Code” for short) dated 27.08.2020 lodged by the complainant - Mahavirbhai Harakhchand Jain.

2. As per the FIR, the complainant is giving honorary services in Animal Welfare Board of India of Navsari District as Animal Welfare Officer since 12 years and his duty is to protect cows and buffaloes from cruelty and to stab them from taking to slaughter house. He also works as Member in All India Animal Welfare Board of India of Navsari District. The complainant has also stated in the complaint that on 26.08.2020 at about 10.00 a.m., he was present in his shop and at that time, he received a phone call from one Rajeshkumar Hastimal Shah, resident of Vapi working as Officer of All India Animal Welfare Board of India of Gujarat State and he was informed that they have to go before the police authority of Tapi in respect of transportation of cows and buffaloes and he was called near Chikhli Bridge. The complainant reached there and Rajeshbhai and other 3 members of the institute namely, Vishal Ahir @ Vallabhbhai Ramjibhai, Bhadresh Nagindas Modi and Shivam Pande were present and they all proceeded towards Vyara in Scorpio Car of Rajeshbhai. One Tempo No.GJ-21-W-9570 was passing from Palsana to Vyara, in which the buffaloes were being transported in a cruel manner and Tapi District Control was informed and the said vehicle was detained by police and thereafter they all reached to Vyara and visited DSP of Tapi District and on the basis of the information received by them the police seized total 6 vehicles. The complainant used to move to stop such kind of activity and he was present near petrol pump at village Jesingpura on 27.08.2020 at about 3.00 a.m. and upon receiving the information, one pick up car No.GJ-19-U-3950 was passing in a full speed from Gadh to Vyara and the complainant chased the said vehicle and when he tried to stop the vehicle, driver of the pick up car dashed the vehicle with the car of the complainant for which, one Rajeshbhai Shah has given complaint at Vyara Police Station.

It is further stated in the FIR that in pursuance of the complaint, he was present at Vyara Police Station and he received information that another tempo is found with the animals and he went there by Government vehicle and the petitioner was dropped at Manekpur Check post at 2.30 p.m. and at that time one Black Scorpio Car came in which one Bharatbhai Bharwad along with Jay Patel @ Nagraj, Sanjaybhai Goga and Jagdish Bharwad were present. Thereafter one Swift Desire Car No. GJ-19-AF-1544 also came there wherein 4 persons had come and all these 8 persons of two cars started giving him kick and fist blows and dragged him into Scorpio Car and he was put into the middle seat. Jay Patel @ Nagraj was driving the vehicle and Bharatbhai Bharwad was in the front seat. Along with the complainant, Sanjaybhai Goga and Jagdish Bharwad sat. Jay Patel @ Nagraj has put mobile phone in the video recording mode. The complainant inquired that why he is forcefully taken by them, he was again beaten on different parts of the body. Bharatbhai Bharwad and Jagdish Bharwad had inflicted blows by wooden log. Jay Patel @ Nagraj has also given fist blow and when complainant asked about the said incident, they replied that why the complainant is involved in detaining the vehicles carrying animals and they further stated that the vehicle detained yesterday was of Bharwad community and they suffered loss of Rs.10 Lakh and they demanded Rs.2 Lakh and again he was beaten when the complainant stated that everything is done at the instance of Rajesh Shah. Thereafter, the complainant was asked to seat in Swift Desire C