JASHUBHAI MAJDAN GADHAVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule Mr. S. T. Mehta, Ld. APP appearing for the respondent-State waives service of the Rule. Heard Mr. Harin P. Raval and Mr. S. T. Mehta, learned APP appearing for the respective parties. 1. Whether in cases wherein, when any person who is accused of having committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Atrocities Act) is specifically barred from having the benefit of anticipatory bail u/Sec. 438 of the Criminal Procedure Code, 1973 (for short the Code) by virtue of an express provision as contained in Section 18 of the said Atrocities Act, and yet relying upon the decision in case of Pankaj Suthar v. State of Gujarat, reported in 1992,(1) Gujarat Law Herald, p. 86, makes an application for such anticipatory bail which if the court is not inclined to grant the same, whether at this stage, such an aggrieved person simultaneously, by way of an alternative remedy can be permitted to invoke the provisions contained in Section 439 of the Code to get himself released on regular ordinary bail, though he is not arrested by the Police ? This in short, is the simple but at the same time the question of quite some importance arising in this Misc. Criminal Application.

(2.) . In short, the petitioner Jasubhai Mojdan Gadhvi, apprehending his arrest at the hands of Police in connection with Cr. No. 68 of 1992 registered at Becharaji Police Station, for the alleged offence punishable u/Secs. 504, 506(2), 114 of the Indian Penal Code and u/Sec. 3(I)(X) of the Atrocities Act, has by this Misc. Criminal Application moved this Court for getting himself released, in the first instance on an anticipatory bail u/Sec. 438 of the Code and failing which in the alternative, on ordinary regular bail u/Sec.439 of the Code.

(3.) . Few relevant facts: According to the complainant Harijan Vankar Mohanbhai Devabhai, the incident in question took place on 22-4-1992 at 18-00 hours near his house at Village Edala, Ta. Chanasma, when the petitioner alongwith three other persons namely: (i) Gadhvi Vishnubhai Jasubhai (armed with dharia), (ii) Gadhvi Bharatdan Kanubhai, and (iii) Gadhvi Navaldan Hingaldan, picking up the quarrel, gave abuses to him saying, to quote sala dhedo fati gaya chhae meaning thereby these untouchables have gone beyond control. The case of the complainant further in detail is to the effect that on the aforesaid date, time and place, some boys of Gadhvis were playing with a ball in the street which accidently bumped into the street near the house of the complainant which was taken away by the complainant. It further appears that thereafter, despite the fact that the ball was returned to the said Gadhvi boys, Gadhvi Vishnubhai Jasubhai came out from his house and picked up the quarrel, as stated above. On the complainant requesting Vishnubhai Jasubhai not to give abuses, he got infuriated and continued giving further abuses. In the meantime, the petitioner and other two accused persons appeared on the scene of the incident and joined Vishnubhai in giving abuses and threats by saying, to quote dhedaone jivata raheva deva nathi, janthi mari nakho meaning thereby the dhedhas (untouchables ) are not to be allowed to remain alive, kill them. Thereafter, Vishnubhai went inside the house and came out with a dharia. As all these four accused were about to beat him, the complainant and his family members hurriedly went inside the house. Even thereafter, the accused persons were uttering threats saying, to quote tenughar sargavi muko ane bahar nikare to dhedane janthi mari nakho meaning thereby burn his house and in case he comes out kill him. On the basis of these allegations, on 23-4-1992 at about 0.30 hours Harijan Vankar Mohanbhai Devabhai filed a complaint before Becharaji Police Station for the alleged offences, which as stated above, came to be registered as C.R. No. 68 of 1992. It is under these circumstances, as stated above, that the petitioner apprehending his arrest has rushed to this Court for getting himself released either on an anticipatory bail u/Sec. 438 of the Code or in the alternative u/Sec. 439 of the Code on regular bail.