Sardarbhai @ Juvansinghbhai Gulabbhai Patel vs State Of Gujarat

Sangeeta K. Vishen, J

By this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking regular bail in connection with an F.I.R. being C.R.No.I­39 of 2019 registered with Randhikpur Police Station, District: Dahod for the offences under Sections 363, 366 and 376(N) of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as "the POCSO Act").

Mr.Maulik Soni, learned advocate for the applicant has submitted that the incident alleged had taken place on 23. 09.2019; however, the F.I.R. came to be registered after unexplained delay of 20 days. It is submitted that the applicant and the victim were having a relationship and the victim had voluntarily gone with the applicant, which aspect is substantiated from the statement dated 09.06.2020 recorded by the Circle Police Inspector, Dev. Baria Circle. Further, a bare perusal of the statement so also, the medical opinion/report, suggests that the relationship between the applicant and the victim was consensual. Further, owing to this relationship, the victim has given birth to a baby boy on 08.10.2020. Considering all the aspects, it clearly proves that the applicant is innocent person and has not committed any offence, as alleged in the F.I.R.

It is emphasized that so far as the first wife of the applicant is concerned, the applicant is separated as per customary rituals and now, they are no more husband and wife. In view of the customary divorce, the applicant and the victim have shown their willingness to marry each other. Lastly, it is submitted that the applicant is not having any criminal antecedents and considering the nature of offence, the applicant may be enlarged on regular bail by imposing conditions.

On the other hand, the learned A.P.P. appearing on behalf of the respondent - State has opposed grant of regular bail looking to the nature and gravity of the offence. It has been submitted that the applicant was a married man and still, he eloped with the victim, who was hardly aged 17 years 11 months and 20 days. It is submitted that the offence has been registered against the applicant under the provisions of the POCSO Act and, therefore, considering the said offence, the application may not be considered. So far as the consent extended by the victim is concerned, the same does not arise in view of the provisions of the POCSO Act. It is submitted that considering the overall circumstances and the nature of offence, the applicant may not be enlarged on regular bail.

The learned advocates appearing for the respective parties do not press for further reasoned order.

Having heard the learned advocates for the respective parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused so also, the principle laid down in the case of Sanjay Chandra V/s. Central Bureau of Investigation, reported in (2012)1 SCC 40, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Since the victim was below 18 years, the F.I.R. came to be registered by the father of the victim on 16.10.2019 for the alleged incident which has taken place on 23.09.2019. Pertinently, the applicant and the victim were having an affair and they willingly eloped. Thereafter, during this period, the victim went to Nasik and stayed their for almost 7 months in a rented premises. It is the case of the victim that the applicant was doing a labour work and she was staying at home. Therefore, there are mitigating factors and the application deserves consideration.

This Court has considered the aspects, namely, the applicant is in jail since 15.06.2020; the investigation is over and chargesheet is filed; the applicant has no criminal antecedents and the age of the victim, at the relevant point of time, was 17 years 11 months and 20 days.

Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with an F.I.R. being C.R.No.I­39 of 2019 registered with Randhikpur Police Station, District: Dahod on executing a personal bond of Rs.10,000/­ (Rupees Ten Thousand Only) with one solvent surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant 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] surrender passport, if any, to the lower court within a week;

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

[e] mark presence before the concerned Police Station once between 1st and 10th day of every English calendar month for a period of one year between 11:00 a.m. and 2:00 p.m.

[f] furnish 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 shall adhere to its own Circular relating to COVID­19 and, thereafter, 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 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 prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent. Registry to communicate this order to the concerned Jail Authority by Fax or e­mail forthwith.