Apikbhai Dhirubhai Bambhaniya vs State Of Gujarat & Anr

Divyesh A. Joshi, J

Rule. Learned APP waives service of notice of rule for respondent – State of Gujarat.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11211050230489/2023 registered with the Thangadh Police Station, Surendranagar for the offence punishable under Sections 363, 366, 376(2) (J)(N) of the Indian Penal Code, under Sections 3(1)(W)(i) and 3(2)(5) of the Atrocities Act and under Sections 5(L) and 6 of the POCSO Act.

Learned advocate for the applicant submitted that the so-called incident has taken place on 02.11.2023, for which, the FIR has been lodged on 06.11.2023 and the applicant has been arrested in connection with the same on 06.11.2023 and since then, he is in judicial custody. Learned advocate submitted that now the investigation is completed and after submission of the chargesheet, the present application is preferred. Learned advocate submitted that during the course of investigation, the concerned IO has recorded the statement of the victim,, wherein she has described entire sequence of incident of events in a very graphical manner to the effect that initially they came in contact through one application viz., Moj and, thereafter, they have started chatting on WhatsApp and, thereafter, they have attracted towards each other and developed relationship. It is also stated that she was called by the applicant at a particular place and, thereafter, the victim had voluntarily accompanied him and stayed for about 7 days and during that period, she had developed physical relationship with her own. Learned advocate further submitted that when the victim was taken to doctor for examination by the concerned IO, she has categorical stated in her history that the said act was consensual act. It is, therefore, urged that considering the nature of the offence and considering the age of the applicant, the applicant may be enlarged on regular bail by imposing suitable conditions.

Learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spelt out from the papers of the chargesheet. Learned APP submitted that the age of the victim was 16 years and 2 months at the time of commission of crime and during the investigation, her statement has been recorded, wherein she has stated in a very categorical terms that against her will and wish, the rape was committed by the applicant – accused. It is, therefore, urged that the present application may not be entertained.

Learned advocate, Ms. Kachara appears on behalf of the original complainant opposed the grant of present application with a vehemence and submitted that role of the present applicant is clealry spelt out from the compilation of the chargesheet and in the statement of the victim recorded under Section 164 of the CrPC, she has stated in a very categorical terms that the accused has committed rape upon her and developed physical relationship against her will and wish. It is, therefore, urged that considering the above facts, the present application may not be entertained.

Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the present application is preferred after submission of the chargesheet and now the investigation is completed and the applicant is in jail since 06.11.2023. I have considered the role attributed to the present applicant at the time of commission of crime. I have considered the role attributed to the present applicant as also the statement of the victim recorded by the IO as well as history given before the doctor by the victim. It is found out from the statement of the victim that it was a consensual act of the victim and she had developed relationship with her own will and wish. Therefore considering the above factual aspects, the present application deserves to be allowed.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022) 10 SCC 51.

In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with the FIR being C.R. No.11211050230489/2023 registered with the Thangadh Police Station, Surendranagar on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender passport, if any, to the concerned court within a week;

[d] not leave the State of Gujarat without prior permission of the concerned court;

[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.

Rule is made absolute to the aforesaid extent. Direct service is permitted.