Nirmalsinh Rajendrasinh Barad vs State Of Gujarat & Anr

@JUDGEMENT- JUDGEMENT

J. C. Doshi, J

Though notice is served to the complainant, none appears.

By way of the present appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the ‘Act, 1989’), the appellant – original accused has prayed to release him on regular bail in connection with FIR being C.R.No.11207028240011 registered with Halol TownPolice Station.

Learned advocate for the appellant submits that considering the nature of allegations, role attributed to the petitioner, the appellant may be enlarged on regular bail by imposing suitable conditions.

Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. He would further submit that the petitioner has used the position of the victim and after making false promise of marriage, entered into physical relationship with the victim and section 90 of the IPC defined the consent in the present case as the consent of the victim is obtained under misconception of promise and later on, the petitioner turned away from his promise and therefore, present case would fall into the definition of “rape”. Hence, he submits to dismiss the petition.

Heard the learned Advocates for the respective parties and perused the papers.

Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to exercise discretion in favour of the appellant for the following reasons : -

(1) The investigation is completed, charge sheet is filed and the accused is behind the bar since 11.1.2024.

(2) The entire record is in safe custody of the investigating officer.

(3) The present petitioner is a resident of Vadodara having movable and immovable property and therefore, there is no flight risk from fleeing from justice.

(4) It is a case of consensual relationship between two major persons i.e. the petitioner and the victim. Hence, there is no case of rape.

(5) The further statement of the victim was recorded on 10.1.2024, which indicates that victim has married multiple times and has taken customary divorce with the earlier husband and was going to be engaged with another person and since the person whom the victim is going to be engaged came to know about the relationship of the victim with the petitioner and therefore, false complaint has been filed.

(6) The medical certificate also indicates that there is consensual relationship of the victim with the petitioner.

(7) Even, after considering what is stated in the FIR alleged to have attracted the offence under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, and it does not constitute casteist slur and derogated to a particular caste or said to have been spoken into public place.

(8) The appellant is behind bar since 11.1.2024.

(9) At this juncture, the Hon’ble Apex Court in case of State through CBI Vs. Amarmani Tripathi reported in 2005(8) SCC 21, held as under:-

“18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati V/ s. NCT, Delhi, 2001 4 SCC 280 and Gurcharan Singh V/s. State (Delhi Administration), AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar V/s. Rajesh Ranjan, 2004 7 SCC 528:

“"The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail”

In the result, the present appeal is allowed. The appellant is ordered to be released on bail in connection with FIR registered as C.R.No.11207028240011 registered with Halol TownPolice Station on executing bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount to the satisfaction of the Trial Court and subject to the conditions that the appellant shall:-

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

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

[c] not leave the territory of India without prior permission of the Sessions Judge concerned;

[d] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend Court concerned regularly.

[e] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned;

The competent authority will release the appellant 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 Sessions Judge concerned will be free to 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 to the concerned Court to delete, modify 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 appellant on bail.

The appeal succeeds. Direct service is permitted