Licenced to : nilesh Mandovara

2022 (0) AIJEL-HC 244214

GUJARAT HIGH COURT

Hon'ble Judges: B.N.Karia

Manjulaben Vitthalbhai Gevariya Versus State Of Gujarat

Criminal Appeal No. 1888 of 2021 ;

Decided on:- 29-03-2022

Acts and Rules Referred :

SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989
Section - 3(2)(5a), 3(1)(r)(s), 18
CODE OF CRIMINAL PROCEDURE, 1973

Criminal Law

Atrocities - anticipatory bail - if complaint does not make out a prima facie case for applicability of the
provisions of the Atrocity Act, bar created by S. 18 and 18A(i) shall not apply.

Code of Criminal Procedure, 1973 - S. 438 - Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 - S. 3(2)(va), 3(1)(r), (s), 18 - offence of atrocities - anticipatory bail - bar u/S. 18 and
18A of Act, 1989 - Trial Court rejected application of anticipatory bail - aggrieved - held, 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 - prima facie
provisions of S. 3(2)(va), 3(1)(r), (s) of Atrocity Act would be doubtful to be applied in present case - no
averment made in complaint that present appellants were knowing that however, respondent No. 2 was
member of SC and ST and they have committed any offence for insulted her - therefore, complaint does
not make out any prima facie case for the applicability of the provision of Atrocity Act, therefore, barred
u/S. 18 and 18A would not apply as no prima facie case for material tactics warranting arrest of present
appellants - anticipatory bail is granted - impugned order quashed and set aside - appeal allowed.

Imp.Para:- 9, 14

Cases Referred To :

1. Lalita Kumari V. Government Of U.P., 2014 2 SCC 1 : 2014 AIR SC 187 : 2013 (13) Scale 559 : JT 2013
(14) 399 : 2013 AIR SCW 6386

Cases Relied on :

1. Danishkhan @ Sahil Vs. State (Govt. of NCT of Delhi) passed in Bail Application No. 3497 of 2020
2. Union of India Vs. State of Maharashtra in Review Petition (Cri.) No.228 of 2018 in Criminal Appeal
No.416 of 2018

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3. Vishal Nanchanbhai Suthar Vs. State of Gujarat passed in Criminal Misc. Application No. 20040 of
2021 Decision passed in Criminal Appeal No. 1311 of 2008
4. Gorige Pentaiah V. State Of Andhra Pradesh And Ors, 2008 12 SCC 531 : 2008 AIR SC(Supp) 634 : 2008
(11) Scale 715 : JT 2008 (9) 543 : 2008 (12) SCR 623
5. Prathvi Raj Chauhan Vs. Union Of India And Others, 2020 4 Scale 198 : 2020 (4) SCC 727 : 2020 AIR SC
1036 : 2020 (4) Scale 198 : JT 2021 (1) 88
6. Subhash Kashinath Mahajan V/s. State Of Maharashtra, 2018 6 SCC 454 : 2018 (2) GCD 952 : 2018
CrLJ 3422 : 2018 (186) AIC 145 : 2018 (4) Scale 661

Appereances :
Aaditya D.Bhatt, Chandni S.Joshi, M.H.Bhatt
Equivalent citations: 2022 (0) GUJHC 14510 : 2022 (0) JX(Guj) 477

JUDGEMENT :-
1. From the cause list, it appears that notice was duly served to respondent No.2 but, when the matter
was called out nobody was appeared to assist the Court.

2. From the record , it appears that Registry has received letter from learned 10th Additional Sessions
Judge, Surat dated 25th January, 2022 along with report of the Superintendent of learned 10th Additional
Sessions Court, Surat confirming that notice was duly served to the respondent No.2 as per the
endorsement made by ASI, Varachha Police Station, Surat.

3. Present appellants filed Criminal Misc. Application No.6433 of 2021 before the Court of learned 10th
Additional District & Sessions Judge, Surat u/s 438 of the Code of Criminal Procedure, 1973 requesting to
enlarge the appellants on anticipatory bail in the event of their arrest on account of offence being
registered vide C.R. No.11210060212819 of 2021 with Varachha Police Station, Dist. Surat Rural for the
offence punishable u/s. 498(A), 323, 114, 506(2) of the Indian Penal Code and u/s.3(2)(5-a), 3(1)(r)(s) of
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short "the Atrocity
Act") wherein, learned 10th Additional Sessions Judge, Surat rejected the said application vide order dated
1.11.2021.

4. Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14-A of the Atrocity Act.

5. Heard learned advocate appearing for the appellants and learned APP for the respondent-State.

6. Learned advocate for the appellants has submitted that appellants are totally innocent persons and
they have been falsely implicated in the said offence. That, present case is nothing but a matrimonial
dispute between husband and a wife, who separately lived at Mumbai and there is no involvement of the
present appellants without and sharing any domestic relations with other family member, including the
present appellants. In support of arguments learned advocate for the appellants has relied upon the
decision of this Court in case of Avinashbhai Prabhudas Satapara Vs. State of Gujarat passed Criminal
Appeal No. 596 of 2020; (2) decision of Delhi High Court in case of Danishkhan @ Sahil Vs. State (Govt. of
NCT of Delhi) passed in Bail Application No. 3497 of 2020 (3) decision of this Court in case of Vishal
Nanchanbhai Suthar Vs. State of Gujarat passed in Criminal Misc. Application No. 20040 of 2021(4)
decision of the Apex Court rendered in case of Prathvi Raj Chauhan Vs. Union of India & Others reported in
Writ Petition (C)No. 1015 of 2018. Hence, it was requested by learned advocate for the appellants to
enlarge the present appellants on anticipatory bail in the event of their arrest.

7. Learned APP for the respondent State has strongly objected the submissions made by learned
advocate for the appellants and submitted that looking to the investigating papers, involvement of the

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present appellants has clearly established by the prosecution. Learned APP has referred particularly last
para of the complaint and submitted that instigation was given by the present appellants to the accused
No.1-husband and he was insulted by her caste mainly that she was belonging to Scheduled Caste and
Scheduled Tribes.

8. She has referred statements of brother and parents of respondent No.2 recorded by the Investigating
Officer during the investigation and submitted that they have also supported the say of the complainant
as present appellants being family members of the husband of the complainant were giving physical and
mentle cruelty to her. Complainant was deserted from her matrimonial home. That, clear allegations are
made against present appellants and therefore, prima facie involvement of the present appellants in the
alleged offence was established by the prosecution Therefore, learned APP for the State has requested to
dismiss the present appeal.

9. If we consider the judgment of Hon'ble Supreme Court delivered in the case of Subhash Kashinath
Mahajan Vs. State of Maharashtra reported in 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 appellants in his complaint of committing any offence
under the provisions of the Atrocity Act. In the case of Union of India Vs. State of Maharashtra in Review
Petition (Cri.) No.228 of 2018 in Criminal Appeal No.416 of 2018, it was opined that direction nos.(iii) and
(iv) issued by the Hon'ble Supreme Court deserve to be and are hereby recalled and consequently we hold
that direction no.(v), also vanishes. The other directions remained as it is as there is no bar in granting
anticipatory. This Court has made scrutiny of the complaint and prima facie, it is found that there are no
specific averments, attracting the provisions of the Act as mentioned in the complaint.

10. In the case of Gorige Pentaiah v. State of Andhra Pradesh and Ors, reported in (2008)12 Supreme
Court Cases 531, it was held that 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 was intentionally insulted or intimidated by the accused with intent to humiliate in a place within
public view.

11. Having considered the facts of the case, police papers and submissions made by learned advocate
appearing for the appellants as well as learned APP for the respondent-State, it appears that on 28th
August, 2021, FIR was lodged by the respondent No.2 against the present appellants. It also appears that
complainant - Pritikaben was married to the accused no.1- Sureshbhai Gevariya on 6.5.2009. It also
appears that appellant No.1 is mother-in-law, appellant No.2 & 3 are sister-in-law of the complainant. After
marriage, the complainant moved with her husband to Room No.4, Rambujarat Yadav Ni Chali, SV Road,
Bhavani Chowk, Ambavadi, East Mumbai and therefore the complainant along with her husband lived
separately at Mumbai. Out of their said wedlock, one daughter and one son was born and both are minors.
However, in terms of social relations, she had assimilated herself in the family and no one from the family
ever stigmatized her on the ground that she is from the Tribal community and as far as the present
appellants are concerned she has always been treated her like she is her daughter/family member and not
her daughter in law and appellants used to take care of her as a child. Complainant was new at the family
so everyone was supporting her. As per the version of the FIR, complainant alleges that the appellants and
her family were behaving with cruelty towards the complainant and were not treating her properly and

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alleged that the appellants and other accused were at first behaved very nice to her but as the time
passed, they all started behaving her with cruelty and used to stigmatize her and call her that she is from
the scheduled tribe and she is not as same as other members of family, is not correct. Present
complainant has never stayed with the appellants Nos. 1 and 2. From the documents i.e. Aadhar Card
produced on record, it appears that residential address of appellants No.1 and 2 is Room No.6, N.G.Patel
Chawl No.2, Western Express Highway, Rawalpada, Dahisar (East) Mumbai. As per another documents
produced on record i.e. Aadhar Card of respondent No.2, she is residing at 306, Saavan Appartment,
Trikam Nagar Society, L.H.Road, Varachha, Surat City. These documents suggest that till the last scuffle
with the husband, complainant lived in Mumbai at Room No.4, Rambujarat Yadav Ni Chali, Chali No.7, SV
Road, Bhavani Chowk, Ambavadi, East Mumbai from where she took a train to come to Surat after calling
her brother, she went her parental home. Prima facie, it appears from the complaint that allegations made
against the present appellants are vague and lack specifics and as far as allegations under Atrocities Act
are concerned, the involvement of the present appellants was not made out against the present
appellants. Further, it appears that complainant may have matrimonial dispute against her husband but
instead of trying to settle the issue, she has chosen to settle her scores against the entire family by way of
filing this complaint. Further it appears that other co-accused were released on bail by competent Court of
law. This Court in Criminal Appeal No. 596 of 2020 has referred judgment of Prathvi Raj Chauhan Vs.
Union of India and others reported in 2020 SC 1036 wherein, the amended Section 18A of the Atrocity Act
vis-a-vis the application for bail under Section 438 of the Cr.P.C was considered as under :-

"8. Concerning the provisions contained in section 18A, suffice it to observe that with respect to
preliminary inquiry for registration of FIR, we have already recalled the general directions (iii) and (iv)
issued in Dr. Subhash Kashinath's case (supra). A preliminary inquiry is permissible only in the
circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v.
Government of U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed by this Court in the
review petitions on 1.10.2019 and the amended provisions of section 18A have to be interpreted
accordingly.

9. The section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra),
which made it necessary to obtain the approval of the appointing authority concerning a public servant
and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on
Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made
in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr.
Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act
with respect to anticipatory bail.

10. Concerning the applicability of provisions of section 438 Code of Criminal Procedure, it shall not apply
to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for
applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.
We have clarified this aspect while deciding the review petitions.

11. The court can, in exceptional cases, exercise power under section 482 Code of Criminal Procedure for
quashing the cases to prevent misuse of provisions on settled parameters, as already observed while
deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.

12. The challenge to the provisions has been rendered academic. In view of the aforesaid clarifications,
we dispose of the petitions." (Per : Ravindra Bhat,J.)

28. In the meanwhile, Parliament enacted the amendment of 2018 11 (by Act No. 27 of 2019), which is the
subject matter of challenge in these proceedings. The clear intention of Parliament was to undo the effect

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of this court's declaration in Subhash Kashinath Mahajan (supra). The provisions of the amendment
expressly override the directions in Subhash Kashinath Mahajan, that a preliminary inquiry within seven
days by the Deputy Superintendent of Police concerned, to find out whether the allegations make out a
case under the Act, and that arrest in appropriate cases may be made only after approval by the Senior
Superintendent of Police. The Parliamentary intent was to allay the concern that this would delay
registration of First Information Report (FIR) and would impede strict enforcement of the provision of the
Act.

20. The judgment of Mishra, J has recounted much of the discussion and reiterated the reasoning which
led to the recall and review of the decision in Subhash Kashinath Mahajan (supra); I respectfully adopt
them. I would only add that any interference with the provisions of the Act, particularly with respect to the
amendments precluding preliminary enquiry, or provisions which remove the bar against arrest of public
servants Accused of offences punishable under the Act, would not be a positive step. The various reports,
recommendations and official data, including those released by the National Crime Records Bureau, paint
a dismal picture. The figures reflected were that for 2014, instances of crimes recorded were 40401; for
2015, the crime instances recorded were 38670 and for 2016, the registered crime incidents were 40801.
According to one analysis of the said 2016 report, 422,799 crimes against scheduled caste communities'
members and 81,332 crimes against scheduled tribe communities' members were reported between
2006 and 2016.

30. These facts, in my opinion ought to be kept in mind by courts which have to try and deal with offences
under the Act. It is important to keep oneself reminded that while sometimes (perhaps mostly in urban
areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread
social prejudices against members of these oppressed classes. Significantly, the amendment of 2016, in
the expanded definition of 'atrocity', also lists pernicious practices (under Section 3) including forcing the
eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of
such communities and several other forms of humiliation, which members of such scheduled caste
communities are subjected to. All these considerations far outweigh the petitioners' concern that innocent
individuals would be subjected to what are described as arbitrary processes of investigation and legal
proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available
to those accused of committing offences under the Act; they remain unchanged by the enactment of the
amendment.

31. As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J,
has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court
has the inherent power to direct a prearrest bail.

32. I would only add a caveat with the observation and emphasize that while considering any application
seeking prearrest bail, the High Court has to balance the two interests: i.e. that the power is not so used
as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is
used sparingly and such orders made in very exceptional cases where no prima facie offence is made out
as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result
would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms,
otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to
grant prearrest bail would defeat the intention of Parliament."

12. Decision of the Hon'ble Delhi High Court in case of Danish Khan @ Saahil (Supra) wherein it is
observed as under:-

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It is not the purport or meaning of section 3(2)(v) that every offence under the IPC attracting
imprisonment of 10 years or more would come within the meaning of that provision merely because it is
committed against a person who happens to be a member of a Scheduled Caste or a Scheduled Tribe.
The enhanced punishment is attracted where the reason for commission of such offence under the IPC is
the fact that the person belongs to a Scheduled Caste or a Scheduled Tribe. For an IPC offence to attract
section 3(2)(v) of the SCST Act, it is necessary that the offender's action is impelled by the consideration
that the victim is a member of a Scheduled Caste or a Scheduled Tribe. This is what the Hon'ble Supreme
Court has held in the foregoing decisions; and this also conforms well with the Preamble to the SCST Act,
which is: "... to prevent the commission of offences of atrocities against the members of the Scheduled
Castes and the Scheduled Tribes ..." since this Special Act was enacted with a view to making more
stringent provisions for punishment inter alia of offences under the IPC which target persons belonging to
a Scheduled Caste or a Scheduled Tribe by reason of their caste status.

13. Another decision of this Court in case of Vishal Nanchandbhai Suthar (Supra) wherein it has observed
as under:-

"4. A bare reading of the FIR and the materials placed on record would show that after marriage, the
husband and wife have started to reside in a rented house at Ahmedabad. Therefore, prima-facie, the
allegations against the husband and in-laws with respect to alleged offence of rape etc. cannot be
accepted. The respondent no.2 belongs to Scheduled Caste and Scheduled Tribe. After her marriage with
accused no.1, she cannot claim the benefit of provisions of Atrocities Act. Thus, invocation of provisions
of Atrocities Act are also with oblique motive. Mr. Darji, learned advocate for the applicants would state
that the applicants have been arrested and presently they are on bail. Considering the facts and
circumstances of the case, the matter deserves consideration."

14. In view of the aforesaid dictum of law and facts of the present case, prima facie provisions of Section
3(2)(5-a), 3(1)(r)(s) of the Atrocity Act would be doubtful to be applied in the present case. There is no
averment made in the complaint that present appellants were knowing that however, respondent No.2
was member of SC and ST and they have committed any offence for insulted her. In such circumstances,
this Court is of the view that complaint does not make out any prima facie case for the applicability of the
provision of Atrocity Act therefore, barred under Section 18 and 18(a) would not apply as no prima facie
case for material tactics warranting arrest of the present appellants. Therefore, this Court is inclined to
exercise the discretionary powers u/s. 438 of Cr.P.C granting anticipatory bail to the appellants in the
event of their arrest pursuing to their complaint.

15. The decision of the Hon'ble Apex Court in Criminal Appeal No. 1311 of 2008 has referred Section 3(1)
(x) of the Act which reads as under:-

3(1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribes:- (x)intentionally insults or
intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place
within public view.

16. In absence of any basic ingredients of the Act, no case is made out as alleged against the present
appellants. Therefore, considering the decision rendered in the aforesaid citations, present appeal
deserves consideration.

17. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated
1.11.2021 passed in Criminal Misc. Application No. 6433 of 2021 by learned 10th Additional Sessions
Judge, Surat is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the

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event of their arrest on furnishing a bond of Rs. 10,000/- (each) with surety of like amount on the following
conditions that the appellants:-

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 5.4.2022 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 Trial 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;

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

19. 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 appellants, 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.

20. At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court
while enlarging the appellants on bail.

21. Registry shall communicate this order to the concerned Sessions Court as well as jail authorities.

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