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Judgment
Nikhil S. Kariel, J
Heard learned Advocate Mr. Sandip Patel on behalf of the applicant and learned Additional Public Prosecutor Mr. K.M. Antani on behalf of the respondent-State.
Rule. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent-State.
By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – original accused prays for being released on anticipatory bail in connection with FIR No. 11203068220244 of 2022 registered with Vanthali Police Station, District: Junagadh for offences punishable under Sections 363 and 366 of the Indian Penal Code.
Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicants-accused to oppose such application on merits may be kept open.
Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence.
Heard learned Advocate for the respective parties who have not submitted anything further.
Having heard learned Advocates for the parties and having considered the documents on record, this Court has taken into consideration the following aspects:
[1] While this Court has appreciated the fact that the prosecutrix was aged around 16 years when she had eloped with the present applicant, at the same time, the fact of the present applicant being aged around 22 year also is a fact which cannot be overlooked by this Court;
[2] It also appears that the allegations in the FIR are with regard to offences punishable under Sections 363 and 366 of the Indian Peal Code and whereas there is no allegation against the applicant corresponding to an offence either under Section 354 or under Section 376 of the Indian Penal Code or of any like offence under the Indian Penal Code.
[3] It also appears that the parties have settled the issue considering the fact that the present applicant and the prosecutrix were having an affair and whereas the families have decided to marry prosecutrix with the applicant upon the prosecutrix completing 18 years, such an affidavit having been filed by the first informant i.e. mother of the prosecutrix.
Having regard to the circumstances in question, and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this application.
In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR No. 11203068220244 of 2022 registered with Vanthali Police Station, District: Junagadh the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount, on the following conditions:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 12.10.2022 between 11:00 a.m. and 2:00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the Police;
(e) shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change his residence till the final disposal of the case or till further orders;
(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.