Kinjalbhai @ Axaybhai … vs State Of Gujarat on 22 September, 2017

R/CR.MA/23051/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 23051 of 2017

KINJALBHAI @ AXAYBHAI BALVANTBHAI @ BABUBHAI
VASAVA….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)

Appearance:
CHINMAYI M TRIVEDI, ADVOCATE for the Applicant(s) No. 1
SHRIKAR H BHATT, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
MR.MANAN MEHTA, for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 22/09/2017

ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for and
on behalf of the respondent-State.

2. The present successive bail application is filed under
Section 439 of the Code of Criminal Procedure, 1973, for
regular bail in connection with I-C.R.No.19 of 2017
registered with the Ankleshwar Police Station,
Ankleshwar, Distirct: Bharuch of the offence punishable
under Sections 363, 366, 376 of the Indian Penal Code
and section 4 and 6 of POCSO Act.

3. Learned advocate Mr.Minesh Elinpura for Mr.Shrikar Bhatt
appearing on behalf of the applicant submits that after

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conclusion of investigation, chargesheet has already
been filed, The applicant is aged about 23 years, whereas
victim is aged about 17 years and 6 months. Both were in
love. In further statement dated 16.03.2017, the
prosecutrix victim herself has stated that her parents
were going to sell her, consequently, therefore, she told
the present applicant to take her away from her parents
and she had gone with the present applicant willingly.
There appears no wishper as regard to any sort of
allurement or enticement on the part of the present
applicant and even relationship have been established
with consent. In that view of the matter, he has urged,
taking into consideration young age of the victim as well
as applicant, and the fact that investigation is over
judicial discretion may be exercised in favour of the
applicant for enlarging on regular bail. Considering the
nature of the offence, the applicant may be enlarged on
regular bail by imposing suitable conditions.

4. On the other hand learned APP appearing on behalf of the
respondent-State has argued that since victim was below
18 years and admittedly they established sexual
relationship, therefore, provision of Section 376 r/w
section 375 of the Indian Penal Code are attracted.
Therefore, no judicial discretion may be used in favour of
the applicant for enlarging on regular bail. He has
opposed grant of regular bail looking to the nature and
gravity of the offence.

5. I have heard the learned advocates appearing on behalf
of the respective parties and perused the papers of the

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investigation and considered the allegations leveled
against the applicant and the role played by the
applicant. Taking into consideration rival submissions
came to be advanced and more particularly taking into
consideration the statement of prosecutrix recorded by
the Investigation Agency on 16.03.2017 wherein she has
clearly stated that she is not willing to stay in her
parental home. Her parents are going to sell her and
therefore, she requested the applicant to take away and
went together due to her wish and volition. In view of the
aforesaid nature of incident in question, without
discussing any more as regard to the merits of the Court,
since, chargesheet has already filed after conclusion of
investigation, let judicial discretion be used in favour of
the accused for enlarging on bail.

6. 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.

7. Hence, the present application is allowed and the
applicant is ordered to be released on regular bail in
connection with I-CR.No.C.R.No.19 of 2017 registered
with the Ankleshwar Police Station, Ankleshwar, Distirct:
Bharuch , on executing a personal 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;

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[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 lower court within
a week;

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

[e] 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;

8. 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 Sessions Judge concerned will be free to
issue warrant or take appropriate action in the matter.

9. 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.

10. 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.

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(R.P.DHOLARIA,J.)
VARSHA

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