Code of Criminal Procedure, 1973 – Section 439 – Indian Penal Code, 1860 – Sections 121, 121A, 124A, 153A, 153B and 120-B – Violent Partidar agitation in Gujarat – Sedition Cases filed by the Surat and Ahmedabad police – Patidar Anamat Andolan Samiti (PAAS) – granted bail to patel quota agitation leader Hardik Patel – ordered him to stay outside the State for six months and submit his passport.
Gujarat Police Act
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 08/07/2016
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO.6440 of 2016
CRIMINAL MISC.APPLICATION NO. 6873 of 2016
HARDIK BHARATBHAI PATEL….Applicant Versus STATE OF GUJARAT….Respondent
Appearance : MR ZUBIN BHARDA, ADVOCATE WITH MR RAFIK LOKHANDWALA, ADVOCATE for the Applicant; MR MITESH AMIN, PUBLIC PROSECUTOR ASSISTED BY MR J.K. SHAH, APP for the Respondent.
1. The present two applications, which have been filed by the same accused under
Section 439 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’) praying for releasing him on bail during the pendency of the trial, were heard simultaneously since the applicant is facing almost same charges for two different offences though registered at two different Police Stations on different dates. Hence, the same are being disposed of by this common judgment and order.
2. In Criminal Misc. Application No.6440 of 2016, the applicant has prayed to release him on regular bail in connection with an offence registered as I C.R. No.90 of 2015 with DCB Police Station, Ahmedabad for which he is facing charge under Sections 121A, 124A and 120-B of Indian Penal Code etc..
3. In Criminal Misc. Application No.6873 of 2016, the applicant has prayed to release him on regular bail in connection with an offence registered as I C.R. No.135 of 2015 with Amroli Police Station, Dist. Surat for which he is facing charge under Sections 124A, 115 and 201 of Indian Penal Code etc..
4. As stated herein above, both these applications were argued by learned advocate appearing for the respective parties relying upon the material collected by the Investigating Agency.
5. The facts emerge on record from the material gathered by both the Investigating Agency reveal as under :-
5.1 The present applicant and other persons, namely, Dinesh Bhagwanbhai Bamaniya, Chirag Bharatbhai Patel, Ketan Lalitbhai Patel, Alpesh Ghanshyambhai Kapetiya, Amrishkumar D. Patel who belonged to Patel community of State of Gujarat formed an organization in the month of June / July 2015 and the same was named as ‘Patidar Anamat Andolan Samiti’ (hereinafter referred to as ‘PAAS’) to seek status of other backward class for Patel (Patidar) community and to get reservation in Government jobs and educational institutions under the quota meant for other backward classes (OBC). Some public gathering and demonstration were held at different places of Gujarat in the month of July and August, 2015. At some places, there was scuffle between the members of the gathering and police party and offences were registered against several members of Patidar community. Several rallies were organized by PAAS at different cities and a huge rally was organized by PAAS on 17.8.2015 at Surat wherein about 3 Lacs people gathered. The demand of Patidar community was to include them in the OBC since most of their community people are poor farmers, economically backward and most of them are residing in villages.
5.2 The present applicant who was the convener of PAAS organized a rally which was named as ‘Mahakranti Sabha’ on 25.8.2015 at Ahmedabad. The said sabha / rally was organized at GMDC Ground, Ahmedabad wherein Lacs of people from Patidar community, who were supporting the demand of PAAS, remained present. The applicant as well as other persons addressed the rally and prepared their demand by a written memorandum. Speeches were delivered by different persons including the present applicant who led the rally being the convener of the PAAS.
5.3 The District Collector, Ahmedabad visited the place of rally i.e. GMDC Ground to accept the Memorandum which was denied to him by the speakers including the applicant and the Collector was told that the memorandum of demand shall be handed over to Hon’ble the Chief Minister of State of Gujarat at GMDC Ground.
5.4 The large numbers of Patidars who had gathered in the morning hours at GMDC Ground were requested by the organizers to leave the place since they have come from distant places from all over Gujarat. Therefore, only few thousand persons including women and children were present at GMDC ground.
5.5 The Collector left the place without receiving any memorandum of demand prepared by PAAS. Meanwhile, the Police found that the situation at the ground and in the surrounding area was charged, the Police detained the applicant under Sections 68 and 69 of the Gujarat Police Act and took the applicant at a safe place. The news of the detention of the applicant who was the convener of PAAS, spread all over the State of Gujarat which resulted into disturbance the law and order situation in various parts of the State of Gujarat. Several Police Stations, police vehicles, private vehicles etc. were put ablaze. Some trains were intercepted at different places by members of Patidar community.
5.6 Since the applicant was not arrested in any offence and was detained only under Sections 68 and 69 of the Gujarat Police Act, ultimately, was made free within a short time. Subsequent to 25.8.2016 i.e. post rally at GMDC Ground, violence in different parts of State of Gujarat took place in which about 200 persons have sustained injuries, 10 persons from public died and one police personnel died. Thereafter, the situation in State of Gujarat was under control and, therefore, Public Interest Litigation being Writ Petition (PIL) No.174 of 2015, was filed by public spirited litigant seeking appropriate directions against the State to take immediate steps to control the law and order situation. The said petition came to be dismissed by the Division Bench of this Court on 3.9.2015 by observing that peace has restored in the State of Gujarat and, therefore, there was no need to issue any directions as prayed for in the said PIL.
5.7 One Narendra A. Gadhvi @ Rahul Gadhvi had submitted an application on 9.9.2015 to the Police Inspector of Vastrapur Police Station (within whose jurisdiction GMDC ground is located) to lodge a complaint against the offenders with regard to the rally organized at GMDC ground on 25.8.2015. Since the said application was not registered as FIR, said Shri Gadhvi preferred a writ petition under Article 226 of the Constitution of India before this Court being Special Criminal Application (direction to lodge FIR) No.5549 of 2015. The coordinate Bench disposed of the said petition by directing the Police Inspector of Vastrapur Police Station to consider the application dated 9.9.2015 submitted by Mr. Gadhavi, whether the said application discloses any commission of any cognizable offences or not and after perusing the application and the material, if the Police Inspector is of the view that the same discloses commission of cognizable offences, he shall proceed to register the FIR.
5.8 On 28.9.2015, one Vipul R. Desai from a patidar community and resident of Surat city sent a written note in the nomenclature of suicide note to Police Inspector of Amroli Police Station and to higher Officers of city of Surat and declared that he shall commit suicide if certainest action would not be taken by Police authorities in connection with rally held on 17.8.2015 at Surat. Having received the same, the Police Inspector of Amroli Police Station visited the residence of said Vipul Desai. Since he was not there, he met his brother Narendra Desai and assured to take appropriate steps in the matter. Therefore, the statement of the said Vipul Desai was recorded on 2.10.2015 by which he had assured that he is not going to commit suicide. On 3.10.2015, the present applicant met said Vipul Desai in presence of media persons and used such a language and in such manner and method against Police personnel, which constitute an offence. On 4.10.2015, again said Vipul Desai visited Amroli Police Station and declared that no provocative language was used by the present applicant.
5.9 Being the convener and member of PAAS, applicant with other accused were directly and indirectly trying to disturb the peaceful atmosphere of the State, the police personnel of State of Gujarat was in the process of collecting various types of material with regard to illegal activities being carried out by the applicant and the members of PAAS and other leaders. Having found sufficient material against the applicant and other accused, the Police thought it fit that all the accused persons are indulging in such activities which would constitute several serious offences and, therefore, decided to file complaints against all the accused including the present applicant. Accordingly, one offence being I C.R. No.135 of 2015 was registered with Amroli Police Station on 18.10.2015 for the offences punishable under Sections 124A, 155, 153A, 505 (2) and 506 of Indian Penal Code. The said complaint came to be filed by Deputy Commissioner of Police, Zone III, Surat. The said offence was registered with regard to the offence took place on 3.10.2015 in presence of media people. In pursuance of registration of the said FIR, the applicant came to be arrested on 19.10.2015.
5.10. Another offence being I C.R. No.90 of 2015 was registered with DCB Police Station, Ahmedabad for the offences punishable under Sections 121,121A, 124A, 153A, 153B and 120-B of Indian Penal Code on 21.10.2015 mainly with regard to the incident taken place on 25.8.2015 at GMDC ground. The said complaint came to be filed by the Assistant Commissioner of Police (Crime), Detection of Crime Branch, Ahmedabad City. In pursuance of registration of the said FIR, the applicant came to be arrested on 23.10.2015.
5.11 Subsequent of registration of the offence before DCB Police Station, Ahmedabad against the applicant and other accused, the present applicant preferred an application under Section 482 of the Code for quashment of the FIR being Special Criminal Application No.6330 of 2015 and other allied matters. Similarly, for quashment of FIR registered with Amroli Police Station, the applicant preferred Special Criminal Application No.19858 of 2015. These petitions were partly allowed by the coordinate Bench and offences punishable under Sections 121, 153A, 153Bregistered against the applicant and other accused came to be quashed so far as offence registered with DCB Police Station is concerned. Similarly, offence registered with Amroli Police Station, offences punishable under Sections 153A, 505 (2) and 506 of Indian Penal Code came to be quashed.
5.12 The applicant preferred applications under Section 439 of the Code for releasing him on bail before the learned Sessions Court as well as before this Court. However, the same were not entertained since investigation in both the cases were going on.
5.13 The decision of the coordinate Bench in quashing matters were challenged by the applicant – accused before the Hon’ble Supreme Court since only few offences were quashed and set aside. The Hon’ble Supreme Court directed the Investigating Agency to complete the investigation and asked to submit charge- sheet before the competent Court as well as all the papers of investigation were directed to be placed before it. It is pertinent to note that the matter is at large before the Hon’ble Supreme Court for consideration about the quashment of all the remaining charges.
5.14 As per the directions of the Hon’ble Supreme Court, with regard to the offence registered with DCB Police Station, charge-sheet is filed on 16.1.2016 and with regard to the offence registered with Amroli Police Station, charge-sheet is filed on 8.1.2016.
5.15 Subsequent to filing of the charge-sheets, the applicant preferred applications for regular bail before the concerned learned Sessions Court which came to be rejected. Hence, the present applications.
6. Mr. Zubin Bharda, learned advocate appearing with Mr. Rafik Lokhandwala for the applicant firstly, by taking me through the FIR lodged at DCB Police Station, would submit that the complainant, by reproducing certain provisions of the Constitution of India, 1950 and all the penal provisions which were initially levelled against the present applicant as well as other accused (whose names have been referred in the earlier part of this order), as well as by reproducing only part of certain communications amongst the Patidars, his speeches telecast in the TV media, newspaper media etc., would submit that the prosecution has tried to establish that only the applicant is sole responsible for several incidents which have taken place in various parts of the State of Gujarat from July 2015 till the date of filing of the FIR. He would submit that in the FIR, the complainant has deliberately reproduced only those part of the speeches etc., which would prima facie create an impression that the intention of the applicant and other leaders, was to commit offences, fall under Chapters VI & VII of the Indian Penal Code which relates to offences against the State. However, if the material collected by the Investigating Agency and made part of the charge-sheet prima facie establishes that the applicant had always declared that PAAS wanted to continue the agitation in a peaceful manner. He would submit that serious allegations were made against the applicant and other accused under Section 121 of Indian Penal Code as if the applicant along with others had all intentions to wage war against the Government though the demand of getting reservation in OBC category was made to the Government. He would submit that number of rallies were organized before 25.8.2015 i.e. prior to the rally organized at GMDC ground, Ahmedabad. However, no serious offences were registered for the same. He would submit that during the rally organized at GMDC ground on 25.8.2015, the applicant has never provoked lacs of people who were present, since they were also interested in getting the reservation. By taking me through the speech delivered by the applicant on 25.8.2015, he would submit that he has put forward reasons for getting reservation under the class, namely, OBC. He has also time and again stated that he wants to proceed with the agitation in non-violent method and time and again requested the crowed gathered to act in peaceful manner. Therefore, the allegations levelled against the applicant are without any basis. He would submit that the Investigating Agency has prepared several transcripts of certain communication between the applicant and the anchor of T.V. Channels as part of charge-sheet which did not constitute any serious offence as alleged by the prosecution. He, therefore, would submit that even at the stage of filing of FIR, the coordinate Bench has entertained the application filed by the applicant and other accused for quashment of FIR and quashed the serious offence under Section 121 of Indian Penal Code. He would submit that at the end of his speech at GMDC ground, he requested the crowed gathered at GMDC to leave the place since most of them have come from different parts of State of Gujarat. He would submit that only few thousand persons were present when he announced that he would remain on fast until the Hon’ble Chief Minister comes and accept the memorandum. He would submit that at that time, the Police personnel, without any reason applied lathicharge to those persons, including number of women who were sitting peacefully. Even the Police personnel started destroying the vehicles parked in several Societies belonging to public and in a particular area, where most of the residents were of Patidar community. This news spread in different parts of State, which resulted into several incidents. The high handed action of Police was also questioned before this Court by way of filing petition being Special Criminal Application No.5072 of 2015. The coordinate Bench by oral order dated 16.9.2015 directed a detailed investigation with regard to the allegations made against the Police personnel who damaged the properties of innocent citizens. He would further submit that since the applicant was detained under Section 68 and on the other hand, the Police personnel were acting in high handed manner, several incidents of attacking the Police stations and attacking the Police personnel came to be reported in different parts of State of Gujarat for which the applicant cannot be stated to have conspired as defined under Section 121A of the Indian Penal Code. He would further submit that the allegations levelled against the applicant that he has threatened that bombs shall be planted in the Assembly is not the bombs as interpreted by the Investigating Agency. However, if the speech is read as a whole, it was the ‘bomb of votes’ that means the intention of the applicant was to follow the principle of democracy and voting against Government in the next election. He would further submit that several communications between the applicant and the co- accused and other known and unknown persons would not directly or indirectly held the applicant liable for the language used by them.
6.1. Mr. Bharda would further submit that the organization PAAS was carrying on its agitation of getting reservation in OBC in a peaceful manner till 25.8.2015. The disturbances arose only subsequent to the high-handedness of the Police personnel. By taking me through the statement of one Pathik Nagin Patel, Advocate, he would submit that on 25.8.2015, at the end of the rally, the applicant declared that he will accept the memorandum from Hon’ble Chief Minister at his instance i.e. at the instance of said Pathik and that too in consultation with all other accused who were present at GMDC ground. Therefore, he would submit that it cannot be said that everything was preplanned and conspiracy was hatched before organizing the rally at GMDC ground. By taking me through the issues which were to be dealt with at GMDC ground, he would submit that it was categorically stated by PAAS that the rally is to be proceeded in a peaceful manner and everybody should restrain themselves in the rally. He, therefore, would submit that in sphere of moment, some incident took place at GMDC where two Police Officers were superficially injured, would not make the incident very serious though the reflections of people at large in State of Gujarat would have resulted into various incidents as stated herein above that too subsequent to assault by Police itself.
He would further submit that being the convener of an organization, namely, PAAS, he alone cannot be held to have committed all the offences for which he has been charged.
6.2 As far as the offence registered at Amroli Police Station is concerned, Mr. Bharda would submit that one Vipul Desai belonged to Patidar community intended to commit suicide and, therefore, the applicant went to Surat on 3.10.2015 and advised him not to commit suicide. However, certain sentences used by the applicant in presence of media at the time of meeting with the said Vipul Desai, has been treated out of its proportion by the Investigating Agency. He would submit that the incident of his meeting with Vipul Desai is of 3.10.2015, and when said Vipul Desai has categorically clarified about the say of the applicant on 4.10.2015, there was no need for the Investigating Agency to lodge the FIR after a period of 15 days. Certain offences have also been quashed by the coordinate Bench registered with Amroli Police Station. By taking me through the evidence collected in the said offence and transcript of mobile conversation of various members of Patidar community, no serious crime as alleged against the applicant is established. He would submit that the applicant has never attempted or there were no intentions of the applicant to bring into hatred or contempt or excites or attempt to excite disaffection towards the Government established by law, since he had not written or spoken such words. He would submit that he along with other accused was carrying on with his agitation by lawful means and in a peaceful manner and without exciting or attempting to excite the hatred contempt or disaffection amongst the community members.
6.3 As far as the offences with which the applicant is charged i.e. offences punishable under Sections 121A, 124A, 153A and 120-Bof Indian Penal Code, he would submit that by addressing various rallies and creating awareness with regard to the demand of inclusion of Patidar community in OBC, that too in peaceful manner and in democratic manner, without any intention to create disorder or to incite people to violence is not made out. There is no mensrea which is an essential element of offence under the above referred Section is prima facie established against the applicant. In support of his submission, he has relied on the decision of the Hon’ble Supreme Court in the case of