BHOPATBHAI SOMABHAI KANASIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These Criminal Appeals are filed by the appellants under Sec. 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989 (hereinafter referred to as 'the Act') for anticipatory bail, in connection with the offence registered at C.R. No.11184004210237 of 2021 for the alleged offence punishable under Ss. 366 , 376(2)(n) , 506(2) and 114 of the Indian Penal Code and Ss. 3(2)(v) , 3(1)(s) and 3(1)(w) of 'the Act' registered with Kadwal Police Station, Chota Udepur. Abovesaid Ss. are mentioned as it is reflected from the copy of FIR at page 8 of Criminal Appeal No.954 of 2021 and at page 10 of the Criminal Appeal No.1223 of 2021.

(2.) Heard Mr. Bhavesh J. Patel, learned advocate for one of the appellant-accused, Bhopatbhai Somabhai Kanasiya as also Mr.M.S.Padaliya, learned advocate for other co-accused, namely, Navalbhai Chhedabhai Bariya, submitted that considering the allegation leveled in the First Information Report (for short, 'FIR') as also in the papers of investigation, the appellants are said to have helped the main accused, Shailesh with whom the first informant was having some relationship while both were on run. It is further submitted that only allegation in the 'FIR' shown against the appellants that when first informant as also main accused were to report to the police station, they have prevented the main accused from being present with the police on that day and insisted that he should take away the first informant along with him and rest would be managed by them. The said incident is said to have occurred on 18/6/2021 when both were to be presented before the police. According to their submission, as such, the appellants cannot be said to have committed any offence, as alleged in the 'FIR'. At best, they can be said to have helped the main co-accused who had entered into live in relationship agreement executed to stay with each other and continue the relationship and by that, according to their submission, they cannot be said to have committed any crime as alleged in the Indian Penal Code as also 'the Act'. They have further submitted that the 'FIR' is also filed after a prolonged period without any excuse. The only excuse shown in the 'FIR' that there was some compromise entered into between two groups of two different villages from where victim as also main accused belong and as the main accused did not act as per the said compromise, the 'FIR' came to be filed. Not only that, according to their submission, so far as main offence under Sec. 376 of 366 of the Indian Penal Code is concerned, the appellants cannot be held responsible and therefore, they are required to be enlarged on anticipatory bail. It is further submitted that even without admitting prima-facie case is made out under 'the Act' which will dis-entitle the appellants for an order of anticipatory bail in view of Sec. 18 of 'the Act', according to the submission of the appellants, it is nothing but an abuse of process of law as appellant, Bhopatbhai Somabhai Kanasiya is neighbor of main accused, Shailesh, who is Sarpanch of the village where he resides. Therefore, he submitted that it is only with a view to see that more and more persons are involved in this case. This FIR invoking the provisions of 'the Act' against the appellants is filed and it is an abuse process of law, therefore, they have prayed that they be enlarged on anticipatory bail despite a bar under Sec. 18 of 'the Act'.

(3.) As against that, Ms.Hingorani, learned advocate for the first informant as also learned Additional Public Prosecutor/s submitted that when the appellants are accused of an offence under 'the Act' in view of Sec. 18 of the 'the Act', they are not entitled to invoke provision of Sec. 438 of the Code of Criminal Procedure, 1973 and therefore, these appeals may be dismissed, more particularly when they have actively participated into an offence by providing help/ support to the main accused to be with victim - first informant.