PANKAJ D SUTHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr. P. S. Chapaneri, the learned A. P. P. waives service of the Rule on behalf of the Respondent-State.

(2.) Few relevant facts necessary to decide the question raised above, as per the story given out by the complainant Babubhai Chhaganlal Patel, are to the effect that on 4-7-1991 at 9-00 a.m. when he was at his residence taking supper, the petitioner-accused Pankaj D. Suthar, R.F.O. at Godhra in company of four others came in a Jeep bearing GJN-4451 and keeping the same at some distance sent Beat-guard Usmanbhai Pathan, to call him, who on coming to the house informed the complainant that Ranger Saheb was waiting outside and was calling him. To this, the complainant replied that he was coming, but since this reply did not satisfy Usmanbhai, he was dragged out and while pushing was taken near the Jeep where the petitioner-accused and others surrounded him and ordered him to take seat in the Jeep. According to the complainant, when he stated that he would be coming and meeting them next day morning, the petitioneraccused not liking this reply, got enraged and he with the help of Round Forester Mr. Somabhai Ahir got him bodily lifted and dumped in the rear portion of the Jeep and then drew away. On way all through out, he was beaten and with a view to see that he did not raise any shouts, his mouth was gagged and shut by inserting a piece of cloth. Thereafter, he was taken to the quarters of Malanpada Depot and there also he was severely beaten up and given threats with a view to obtain signature on some confessional statement. However, since the complainant did not oblige by yielding to the said pressures the petitioner-accused and 5-6 others started beating him with sticks, iron bars and also with fists and kicks on various parts of his body, as a result of which he was rendered unconscious. According to the complainant, when he regained consciousness, he asked for water. At that time, the petitioner-accused and accused No. 2 after some conversing inter se instead of giving water to drink, asked the complainant to drink his own excreta (urine). On refusing to do so, the complainant was once again further beaten up this time with a view to compel him to drink his urine. Thereafter, according to the complainant, he was taken to some unknown place in Jeep where he was asked to place his signature on the confessional statement for the alleged theft of forest wood worth Rs. 15,OUO/ ~, administering the threat that if that was not done, he would be killed. However, since he had not committed any such offence as alleged by the Forest Officers, lie refused to sign the confessional statement in question. Thereafter, according to the complainant, the petitioner-accused and four others started discussing inter se and the petitioner-accused was heard suggesting that the complainant should be taken to some Police Station and be involved in some offence. Accordingly, at about 23-00 hours, he was taken to Dharampur Police Station but PSO there plainly refused to take him in his custody. Thereafter as the condition of the complainant started worsening, he was taken to Dharampur Hospital where he was made to lie down on a bench and leaving him then and there only the petitioner-accused and others went away. Thereafter, at the instance of accused No. 6 who happened to he a Doctor at the said Hospital, the nurse on duty gave him one injection hut no other treatment was given. According to the complainant, as he was seriously beaten, he was groaning under the pain. Accused No. 6 Doctor did not like this and therefore getting angry over him gave filthy abuses and gave 4-5 slaps. In the meantime, on the basis of some information, relatives of the complainant including his father, brother, police-patel of the village and 4-5 other persons came to Dharampur Hospital to inquire about the complainant. On finding that his condition was very serious, accused No. 6 was requested to give treatment to him but that was refused, as a result of which, the father of the complainant went to Dharampur Police Station and filed a complainant. Further according to the complainant, on the next day at about 10-00 a.m. one M.L.A. named Mr. Madhubhai Bhayya visited him in the hospital and asked the Doctor accused No. 6 to give him some treatment, as a result of which, he was provided with one cot for sleeping. Further according to the complainant, as he was not given any satisfactory treatment at Dharampur Hospital, he requested the Doctor to transfer him to the Civil Hospital at Valsad which was complied with and he took treatment there. On the basis of the aforesaid facts and circumstances, the complainant Babubhai Patel after 10 days that is to say on 14-7-1991 at 6-00 hours filed a complaint against the petitioner-accused and five others for the alleged offences under Sees. 325, 326, 452, 351, 365. 504, 506(2) of the I.P.C. and Sec. 3(1 )(i) of the Atrocities Act, before the P.S.I., Dharampur Police Station. It is under these circumstances that the petitioner-accused apprehending his imminent arrest at any moment with a view to save himself from being illegally harrassed, maligned disgraced, humiliated and further in order to save his service career from being blotted on the basis of vaxatious, malacious allegations, has knecked the doors of this Court for getting himself enlarged on anticipatory bail under Sec. 438 of the Code in the event of his arrest.

(3.) Mr. J. B. Pardiwala, the learned Advocate appearing for the petitioneraccused while pressing hard for the anticipatory bail, has submitted that the accusations levelled by the complainant against the petitioner-accused arc prima facie mala fide, improbable, false, frivolous, vaxatious and in any event at least not free from doubt, and therefore, the same should not be accepted at its face value. While driving home this point, Mr. Pardiwala invited the attention of this Court to the following glaring facts, surfacing on the face of the complaint itself, viz., (i) that the incident took place on 4-7-1991 at 21-00 hours and yet for the reason best known to the complainant, the complaint regarding the same came to be filed on 14-7-1991 at 6-00 hours that is to say after a lapse of ten days and full deliberations; (ii) that immediately after the alleged incident, though the father and brother of the complainant alongwith another person no less than police-patel of the village and other 4-5 persons had gone to see the complainant at the hospital and thereafter the father of the injured complainant is alleged to have filed some complaint, yet neither a copy of the same is annexed with the present complaint nor the police officer before whom the said complaint was filed, has been cited as a witness in the list of witnesses given by the complainant at the end of the complaint; (iii) that looking to the facts alleged in the complaint and particularly the wild allegations that the complainant was severally beaten on several occasions not only with fists and kick blows, but also by sticks and iron bars and that too by number of persons, meaning thereby, there must have been serious injuries with external marks on his person and yet quite strangely when the medical officer of Dharampur examined the injured complainant on next day, i.e., 15-7-1991 at 9-30 a.m. he did not appear to have notice any such injuries. In fact, the certificate produced by Mr. Pardiwala reveals that what was vaguely complained of was merely a pain in the chest. It appears that some X-ray of the complainant were taken and the result was that of N.A D. This also sadly and adversely reflects upon overall credibility of the prosecution story; (iv) that as per the Anncxure 'B' to the petition on 4-7-1991, it appears that some complaint has been filed by the Forest Department against the complainant B. C. Patel for the alleged theft of the forest wood committed by him and therefore apparently with a view to demoralise and desist the petitioner-accused from discharging his duty effectively and thereby to get away from the clutches of law, false malicious and vexatious complaint has been filed by him by way of counterblast against the petitioner-accused. 3A. Mr. Pardiwala on the basis of the aforesaid contentions finally submitted that if the benefit of anticipatory bail under Sec. 438 of the Code was not made available to the petitioner-accused and if by sheer misfortune he was arrested and detained in custody for a period of 48 hours or more, then in that case, as per the provisions contained in Rules 5(2) of the Gujarat Civil Services Rules, 1971, he shall be deemed to have been placed under suspension by an order of appointing authority. This indeed would seriously prejudice the honest and innocent public servant like the petitioner-accused who day in and day out while discharging his public duty honestly, sincerely and firmly has to displease number of anti-socials and the criminals and who in turn bearing grudge and malice may schemingly victimise such innocent public servants by such false and malicious allegations. According to Mr. Pardiwala, if despite the overall improbabilities and the falsehood of the allegations as pointed out above, the Court is to refuse the anticipatory bail merely on the ground of the offence being under the Atrocities Act, then in that case, the petitioner-accused would be seriously prejudiced at the very threshold of the prosecution and in that case, if ultimately he was to be acquitted, damage caused as a result of denial of anticipatory bail would be simply irreparable. Mr. Pardiwala accordingly finally urged that this was one of those fittest case wherein on mere look and assessment of the complaint, the petitioner -accused deserves to be enlarged on anticipatory bail. 3B. As against the above, Mr. P. S. Chapaneri, the learned A. P. P. for the State vehemently submitted that the petitioner-accused having been accused of a very serious offence under Sec. 3(1) of the Atrocities Act, taking into consideration the special provision contained in Sec. 18 of the said Atrocities Act expressly withhelding the benefit of anticipatory bail under Sec. 438 of the Code to the persons accused of such offences under the Atrocities Act, this Court would not be legally justified in bypassing the same by releasing the petitioner-accused on anticipatory bail. To make good this submission, the learned A.P.P. invited the attention of this Court to Sec. 18 of the said Atrocities Act, which reads as under ;