R/CR.MA/20890/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 20890 of 2017
PATHAN SAHIL @ SAMSHERKHAN @ BHURO SOKATALI….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR MC BAROT, ADVOCATE for the Applicant(s) No. 1
MR TEJAS M BAROT, ADVOCATE for the Applicant(s) No. 1
MR. L R PUJARI, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
SANKUL K KABRA, ADVOCATE for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 18/09/2017
ORAL ORDER
1. This application is filed seeking bail under
Section 439 of the Code of Criminal Procedure, 1973 in
respect of the offences punishable under Sections 363,
366 and 376 of the Indian Penal Code and under
Sections 4, 8 and 17 of the POCSO Act, for which FIR
came to be registered at C.R. No.I14 of 2017 with
Unava Police Station, District: Mehsana.
2. Having considered the rival contentions, it is true
that trial is in progress as pointed out by the
learned APP; however, this Court adjourned the matter
on last few occasions to enable the learned APP in the
trial Court to record the testimony of the
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prosecutrix. However, for one reason or the other, the
testimony has not been recorded and it is stated that
now the matter is fixed for further hearing on
28.09.2017.
3. Learned APP submitted that the girl was aged 14
years and 9 months as per the date of birth being
01.06.2002 as noted in the School Leaving Certificate;
as against that, learned counsel for the applicant
relied upon the Birth Certificate issued by Unjha
Nagarpalika, wherein, the birth date of the
prosecutrix is 07.12.2000. It is his case that, thus,
the prosecutrix was aged 16 years and two months at
the relevant point of time. Learned counsel for the
applicant has also drawn the attention of this Court
to the statement given by the prosecutrix in her
medical history as also the statement made by her
under Section 161 of the Cr.P.C to contend that, the
physical relations between the two were consensually
established. Learned APP submitted that even if the
age of the girl is presumed to be 16 years and 2
months at the relevant point of time, she being below
the statutory age of 18 years, her consent was
immaterial. He would contend that, owing to frequent
sexual intercourse by the applicant with the
prosecutrix, she conceived and had to be aborted.
Learned APP would thus oppose the bail application.
4 Having regard to the above two statements of the
prosecutrix and without discussing or appreciating the
said two statements, since the parties do not invite
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reasoned order, the case for admitting the applicant
to bail is made out. Hence, this application is
allowed and the applicant is ordered to be admitted to
bail in connection with ICR No. 14 of
2017 registered with Unava Police Station, District:
Mehsana, on executing a bond of Rs.10,000/ (Rupees
Ten 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 injurious to the interest
of the prosecution;
(c)surrender his passport, if any, to the lower
court within a week;
(d)not leave the territory of India without prior
permission of the Sessions Judge concerned;
(e)mark presence in the concerned police station
once in a calendar month.
(f)furnish the present address of residence along
with the proof to the Investigating Officer
concerned and also to the trial court at the
time of execution of the bond and shall
indicate change of residential address if any
to the trial court;
(g)the applicant will not meet or establish the
contact directly or indirectly,
telephonically or otherwise with the
prosecutrix until conclusion of the trial.
5. The competent authority will release the
applicant only if he is not required in connection
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with any other offence for the time being.
5.1 If breach of any of the above conditions is
committed, the Sessions Judge concerned will be free
to take appropriate action in the matter.
5.2 Bail bond to be executed before the lower court
having jurisdiction to try the case.
5.3 It will be open for the concerned Court to
delete, modify and/or relax any of the above
conditions in accordance with law.
5.4 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.
6. Rule made absolute to the aforesaid extent. Direct
service is permitted.
(G.R.UDHWANI, J.)
Bimal
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