Court emphasized bail denial in serious offenses hinges on evidence risk of tampering and severity of the charges.

ORAL ORDER

[1.0] ADMIT. Learned APP waives service of notice of Admission for and on behalf of the respondent No.1 – State of Gujarat.

[2.0] Present appeal under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “Atrocity Act”) challenging the judgment and order dated 28.10.2024 passed by the learned Special Judge, Narmada at Rajpipla in Criminal Misc. Application No.458 of 2024 whereby the learned Judge rejected the application filed by the present appellant under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking regular bail in connection with FIR being C.R. No.11823009240606 of 2024 registered with Garudeshwar Police Station, District Narmada for the offences punishable under Sections 103 (2), 109, 189(2), 191(2), 191(3), 190, 115(1), 117(2), 126(2) and 127(2) of the Bharatiya Nyaya Sanhita, 2023 (for short “BNS”); section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short “Atrocity Act”) and Section 135 of the Gujarat Police Act . After the investigation, charge-sheet is filed which culminated into Special Atrocity Case No.9/2024 and is pending for adjudication. The present appellant filed application being CR.MA No.458 of 2024 under Section 483 of the BNSS which came to be dismissed vide order dated 28.10.2024 and hence, being aggrieved the appellant has filed the present appeal.

[3.0] The respondent No.2 – original complainant was joined as a party however, as he expired, his legal heir i.e. his father was brought on record however, he has chosen not to appear before this Court and has also made request to the Court through concerned Investigating OfÏcer to decide the matter on its own merits as he is unable to attend the Court but has opposed bail application filed by the accused. The statement of the complainant and his heir as recorded by the DySP, Ektanagar, Kevadiya is taken on record.

[4.0] Learned advocate for the appellant has mainly assailed the order of the learned Special Judge on the ground that appellant is innocent and is falsely enroped in the offence and neither in the FIR nor during the investigation any specific role is attributed to the present appellant and whatever allegations leveled are against accused Nos.1 and 4, who have played active role even as per the case of prosecution. The appellant is not having any past antecedent and none of the four eye- witnesses have stated anything about the presence or involvement of the present appellant at the scene of offence and even in the CCTV footage present appellant is not seen. Even, in the dying declaration, no names are given. Further, he has submitted that as per the case of prosecution, the complainant who subsequently succumbed to the injuries and another deceased both with intention to commit theft of iron rod from the premises at site of construction of museum were caught red-handed and thereafter they were assaulted. However, there was no intention of the accused to kill the deceased persons. Further, even in the Test Identification Parade, no one has identified the present appellant.

[4.1] Further, the appellant also belong to SC / ST community and therefore, section 3(2)(v) of the Atrocity Act will not be applicable to the present case. Even if we accept the case of the prosecution that in the history given by the complainant before the doctor, he had stated about the involvement of the present appellant but there are three different versions coming out from the case of prosecution i.e. in history given before the doctor, in dying declaration and in the complaint. He has submitted that in the present case investigation is over and charge-sheet is filed and the appellant is behind the bars since 07.08.2024 and as nothing is required to be recovered or discovered from the present appellant, he has submitted to enlarge the appellant on regular bail by imposing suitable terms and conditions.

[5.0] Per contra, learned APP ap