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Kaminiben Nitinbhai Rajput vs State Of Gujarat on 9 April, 2019

R/CR.A/679/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 679 of 2019

KAMINIBEN NITINBHAI RAJPUT
Versus
STATE OF GUJARAT

Appearance:
C J GOGDA(7488) for the Appellant(s) No. 1,2
MR AV NAIR(5602) for the Appellant(s) No. 1,2
MR RAJABHAI J GOGDA(3628) for the Appellant(s) No. 1,2
VIKAS V NAIR(7444) for the Appellant(s) No. 1,2
MR NIMESH M PATEL(6780) for the Opponent(s)/Respondent(s) No. 2
MR. MAULIK M SONI(7249) for the Opponent(s)/Respondent(s) No. 2
MS.MONALI BHATT, APP (2) for the Opponent(s)/Respondent(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

Date : 09/04/2019

ORAL ORDER

1. By way of this appeal filed under Section 14A(2)
of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, the
appellants­original accused nos.2 and 3 have prayed
to release them on anticipatory bail, in the event of
their arrest, in connection with the FIR registered
as C.R.No.I­20 of 2019 with Vejalpur Police Station,
District­Ahmedabad (Rural) for the offences
punishable under sections 306, 498A and 114 of the
Indian Penal Code, 1860 (“IPC” for short), Sections 3
and 7 of the Dowry Prohibition Act, 1961 and Section
3(2)(v­a), 3(1)(r) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
(“Atrocities Act” for short).

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R/CR.A/679/2019 ORDER

2. The appellants herein had approached learned 12th
(ad­hoc) Additional Sessions Judge, Ahmedabad
(Rural), Ahmedabad for being released on anticipatory
bail by filing Criminal Misc. Application No.819 of
2019, which came to be rejected by the impugned
judgment and order dated 14.03.2019. Being aggrieved
by the aforesaid order, present appeal is preferred
before this Court.

3. The brief facts leading to filing of present
application are as under:­

3.1 The respondent no.2 herein­original complainant
has filed the impugned FIR on 28.02.2019 alleging
that her deceased daughter­Sonal was married with
original accused no.1­Ankit Rajput and during her
short span of marriage life, she was subjected to
physical and mental harassment by her husband and
present appellants. It is alleged in the FIR that
they were demanding dowry from her. It is alleged
that because of harassment caused by the accused, she
has committed suicide.

4. Mr.A.V.Nair, learned advocate for the appellants
has submitted that the appellants are innocent and
have not committed any offence as alleged in the FIR
and there is no prima facie material to show that the
incident was occurred merely on account of deceased
being a member of Scheduled Caste and Scheduled
Tribe. He has contended that the deceased has love
affair with her husband viz. Ankit Rajput­original

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R/CR.A/679/2019 ORDER

accused no.1, who is son of the appellant no.2 and
brother of the appellant no.1.

4.1 Learned advocate for the appellants has submitted
that due to love marriage of the deceased with
original accused no.1­Ankit Rajput, the complainant
was not happy and with a view to take revenge, the
impugned FIR involving present appellants has been
filed though they have not participated in the crime.

4.2 Learned advocate for the appellants has submitted
that appellant no.1 is married and residing
separately with her husband and had no such specific
occasion to visit her matrimonial home where the
deceased committed suicide.

4.3 Learned advocate for the appellants has submitted
that appellant no.2 being a old woman, suffering from
depression since years and she has not committed any
offence alleged against her.

4.4 Learned advocate for the appellants has submitted
that from the bare perusal of the FIR, it is evident
that the appellants herein have not committed any
scheduled offence of IPC, which is mandatory for
invoking provisions of Atrocities Act against the
present appellants.

4.5 Learned advocate for the appellants has
submitted that there is no ingredient of commission
of offences charged against the present appellants.

He has referred to various documentary evidence

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R/CR.A/679/2019 ORDER

produced before this Court and relied upon various
judgments of the Apex Court as well as this Court. He
has submitted that Section 18 of the Atrocities Act
would not be applicable to this case and the
amendment carried out in the Amendment Act is only
qua the directions of the Apex Court to the
preliminary inquiry conducted before arrest. He has
further submitted that in view of the decision of the
Apex Court in the case of Dr.Subhash Kashinath
Mahajan Vs. State of Maharastra, passed in Criminal
Appeal No.416 of 2018 dated 20.03.2018, present
appellants are entitled to be released on
anticipatory bail pending the investigation and trial
and the amended Section 18 of the Atrocities Act
would not be applicable in the facts of the present
case.

4.6 Learned advocate for the appellants submits that
the nature of allegations are such for which
custodial interrogation at this stage is not
necessary. Besides, the appellants are available
during the course of investigation and will not flee
from justice. In view of the above, the appellants
may be granted anticipatory bail.

4.7 Learned advocate for the appellants on
instructions states that the appellants are ready and
willing to abide by all the conditions which may be
imposed by this Court while enlarging them on bail.

5. Per contra, Ms.Monali Bhatt, learned APP for the

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R/CR.A/679/2019 ORDER

respondent­State has submitted that deceased has
committed suicide during short span of marriage life,
and therefore, presumption under Section 113 of the
Indian Evidence Act, 1872 is required to be drawn.
There are statements of neighbors with whom the
deceased used to talk. From their statements, it is
transpired that present appellants were also
harassing the deceased. It is also contended that
though the complainant has filed affidavit in support
of the accused, it is a duty of the State to see that
the accused may be punished for such offences.
Therefore, she has prayed that present appeal may be
rejected.

5.1 Learned APP has relied upon the decision of Apex
Court in the case of Ashabai Machindra Adhagale Vs.
State of Maharashtra Ors., reported in (2009) 3 SCC
789 for the proposition that during investigation or
at the time of framing charge or at the time of
trial, it is open to the accused to show that he
either belongs to Scheduled Caste or Scheduled Tribe
so that applicability of Section 3(1)(xi) of the Act
is ruled out.

6. Mr.Maulik Soni, learned advocate for the
respondent no.2­original complainant has submitted
that the complaint has filed her affidavit contending
that the impugned FIR was registered by her as per
her oral information, in haste, without understanding
the legal consequence, as she was emotionally hurt
due to the sudden death of her daughter. She has

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R/CR.A/679/2019 ORDER

further stated that after the registration of the
impugned FIR, she realized that the impugned FIR was
filed in haste and after having consulted with
husband and relatives; she do not intend to further
pursue with the proceedings of the impugned FIR qua
the appellants herein and she do not have any
objection, if the appellants herein are released on
anticipatory bail, as prayed for in the present
appeal.

7. In view of the submissions made by the learned
advocate for the respondent no.2­original
complainant, Mr.Nair, learned advocate for the
appellants has submitted that possibility of the
false implication cannot be ruled out. He has
submitted that the appellant no.1 is residing
separately and there was love affair between the
deceased and her husband­original accused no.1­Ankit
Rajput which was not liked by the complainant, and
therefore, there was no question of demanding dowry
from the deceased by her husband.

8. Heard Mr.A.V.Nair, learned advocate for the
appellants, Ms.Monali Bhatt, learned APP for the
respondent­State and Mr.Maulik Soni, learned advocate
for the respondent no.2­original complainant and
perused the material available on record.

9. On Perusal of the decision of the Apex Court in
the case of Ashabai (supra) on which learned APP has
placed reliance, it is found in the FIR that the
caste of the accused was not mentioned and on that

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R/CR.A/679/2019 ORDER

basis, the High Court had quashed the petition, which
was appealed to the Apex Court, wherein the Apex
Court has observed that FIR is not expected to be
encyclopedia. After ascertaining the facts during the
course of investigation, it is open to the
investigating officer to record that the accused
either belongs to or does not belong to Scheduled
Caste or Scheduled Tribe. After final opinion is
formed, it is open to the Court to either accept the
same or take cognizance. Even if charge is filed at
the time of consideration of the charge, it is open
to the accused to bring to the notice of the Court
that the materials do not show that the accused does
not belong to Scheduled Caste or Schedule Tribe. Even
if charge is framed at the time of trial, materials
can be placed to show that the accused either belongs
or does not belong to Scheduled Caste or Scheduled
Tribe.

10. This Court has taken into consideration the law
laid down by the Apex Court in the case of Sanjay
Chandra Vs. Central Bureau of Investigation reported
in (2012) 1 SCC 40, Dr.Subhash Kashinath Mahajan Vs.
State of Maharashtra and another reported in AIR
2018 SC 1498 and Gorige Pentaiah Vs. State of Andhra
Pradesh and others reported in (2008) 12 SCC 531.

10.1 Learned APP has heavily relied upon the amended

Section 18(A) of the Atrocity Act, which has been

added by the legislature by Amendment Act of 2018.

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R/CR.A/679/2019 ORDER

The said Section reads as under:­

“18A. (1) For the purposes of this Act,–

(a) preliminary enquiry shall not be
required for registration of a First
Information Report against any person; or

(b) the investigating officer shall not
require approval for the arrest, if necessary,
of any person, against whom an accusation of
having committed an offence under this Act has
been made and no procedure other than that
provided under this Act or the Code shall
apply.

(2) The provisions of section 438 of the Code
shall not apply to a case under this
Act,notwithstanding any judgment or order or
direction of any Court.”.

10.2 For inserting this new provision of Section

18(A), the statement of objects and reasons thereof

is necessary to be carved out. The statement of

objects and reasons, which has been appended with the

said Bill No.140 of 2018, is as under:­

STATEMENT OF OBJECTS AND REASONS

The Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (said
Act) was enacted with a view to prevent the
commission of offences of atrocities against
the members of the Scheduled Castes and the
Scheduled Tribes and to provide for Special
Courts and exclusive Special Courts for the
trial of such offences and for the relief and
rehabilitation of the victims of such
offences. The said Act was amended in 2015

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R/CR.A/679/2019 ORDER

with an objective to deliver greater justice
to members of the Scheduled Castes and the
Scheduled Tribes.

2. In a recent judgment, the Supreme Court
has held that a preliminary enquiry shall be
conducted by a Deputy Superintendent of Police
to find out whether allegations make out a
case under the said Act before registering a
First Information Report relating to
commission of an offence and the approval of
an appropriate authority shall be obtained
before arrest of any person in connection with
such offence.

3. However, the provisions of the Code of
Criminal Procedure, 1973 provide that every
information relating to commission of an
offence, if given, shall be recorded and where
the investigating officer has reason to
suspect the commission of an offence, he can
arrest a person and there is no requirement of
conducting a preliminary enquiry before
recording of any such information or obtaining
of an approval from any authority before
arresting any person. Moreover, such
preliminary enquiry and approval would only
delay the filing of a charge sheet.

4. The principles of criminal
jurisprudence and section 41 of the Code of
Criminal Procedure, 1973 as interpreted in
several judgments, implies that once the
investigating officer has reasons to suspect
that an offence has been committed, he can
arrest an accused. This decision to arrest or
not to arrest cannot be taken away from the
investigating officer.

5. In view of the above, it is expedient
in the public interest that the provisions of
the Code of Criminal Procedure, 1973 be made
applicable in respect of registration of First
Information Report relating to commission of
an offence or arrest of any person without any
preliminary enquiry or approval of any

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R/CR.A/679/2019 ORDER

authority, as the case may be.

6. The Bill seeks to achieve the above
objects.

10.3 In view of the statement of objects and reasons
for the amendment of the Atrocity Act, it appears
that due to the recent judgment of the Supreme Court
holding that preliminary inquiry shall be conducted
by Deputy Superintendent of Police to find out
whether the allegations made out a case under the
said Act before registering an FIR relating to the
commission of an offence and approval of appropriate
authority shall be obtained before arrest of any
person in connection with such offence, this
amendment is carried out in the Atrocity Act by
inserting Section 18A thereof. It also appears from
the statement of objects and reasons coupled with
the provisions made in sub­Section (2) of Section
18(A), that this provision of sub­section (2) has
been inserted only with a view counter to the
directions issued by the Supreme Court in the case of
Dr. Subhash Kashinath Mahajan Vs. The State of
Maharashtra (supra), wherein in conclusion at para
83, the Apex Court has held as under:­

“83. Our conclusions are as follows:

i) Proceedings in the present case are clear
abuse of process of court and are quashed.

ii) 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

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R/CR.A/679/2019 ORDER

complaint is found to be prima facie mala
fide. We approve the view taken and approach
of the Gujarat High Court in Pankaj D Suthar
(supra) and Dr. N.T. Desai (supra) and
clarify the judgments of this Court in
Balothia (supra) and Manju Devi (supra);

iii)In view of acknowledged abuse of law of
arrest in cases under the Atrocities Act,
arrest of a public servant can only be after
approval of the appointing authority and of a
non­public servant after approval by the
S.S.P. which may be granted in appropriate
cases if considered necessary for reasons
recorded. Such reasons must be scrutinized by
the Magistrate for permitting further
detention.

iv)To avoid false implication of an innocent, a
preliminary enquiry may be conducted by the
DSP concerned to find out whether the
allegations make out a case under the
Atrocities Act and that the allegations are
not frivolous or motivated.

v)Any violation of direction (iii) and (iv) will
be actionable by way of disciplinary action
as well as contempt.

The above directions are prospective. ”

10.4 Thus, so far as the conclusion of para 83(i) and

(ii) is concerned, there is no object and reason

given for nullifying those observations.

10.5 It is also pertinent to note that the Union of
India has also preferred review petition against the
aforesaid judgment, being Review Petition (Criminal)
of 2018 (Diary No.12243 of 2018) in Criminal Appeal
No.416 of 2018, wherein, review has been sought for

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R/CR.A/679/2019 ORDER

the conclusion at para 83(i) to (v). But, during the
course of argument, the Supreme Court has considered
only the directions at para (iii) to (v) of the
original decision. Thus, even on reading of the
amended provision of Section 18(A) 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 83(iii) to (v). Therefore, 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.

11. Considering the settled proposition of law
coupled with the facts of present case, it prima
facie appears that there was love affair between the
deceased and her husband­Ankit Rajput due to which
they have got married and this fact was not disclosed
by the deceased for five months to the complainant.
The complainant has filed affidavit contending that
she do not have any objection, if the appellants
herein are released on anticipatory bail, as prayed
for in the present appeal, but it is the duty of the
State to oppose the bail to see that appellants­
original accused herein are punished. It is well
settled law that unless and until it is proved
beyound reasonable doubt that the person has
committed any offence, he is considered to be
innocent. However, at the stage of considering the

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R/CR.A/679/2019 ORDER

bail application, punishing accused may be
irrelevant.

12. Considering the facts and circumstances of the
case, without entering into evidence on record, this
Court finds that this is a fit case, wherein
discretion under Section 438 of the Code is required
to be exercised, as there is no prima facie case
against the present appellants­accused.

13. In the result, the present application is
allowed and the impugned order dated 14.03.2019
passed in Criminal Misc. Application No.819 of 2019,
by the learned 12th (ad­hoc) Additional Sessions
Judge, Ahmedabad (Rural), Ahmedabad, is quashed and
set aside and it is directed that in the event of
appellants herein being arrested pursuant to FIR
registered as C.R.No.I­20 of 2019 with Vejapur Police
Station, Dist:Ahmedabad (Rural), the appellants
shall be released on bail on furnishing a personal
bond of Rs. 10,000/­ (Rupees ten thousand only)
each with one surety of like amount on the following
conditions:

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

(b) shall remain present at concerned Police
Station on 16.04.2019 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

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R/CR.A/679/2019 ORDER

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 their addresses 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 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;

14. 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. 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

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R/CR.A/679/2019 ORDER

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.

15. 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.

16. Accordingly, this appeal is allowed. Direct
service is permitted.

(A. P. THAKER, J)

GIRISH

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