Mansukh @ Munno Sukhabhai Zala vs State Of Gujarat on 13 November, 2017

R/CR.MA/27165/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 27165 of 2017

MANSUKH @ MUNNO SUKHABHAI ZALA….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)

Appearance:
MR LAXMANSINH M ZALA, ADVOCATE for the Applicant(s) No. 1
PARIMALSINH J VAGHELA, ADVOCATE for the Applicant(s) No. 1
SWETA A DAVE, ADVOCATE for the Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.H.VORA

Date : 13/11/2017

ORAL ORDER

1. Learned advocate Mr.V.B. Malek states at bar that he has
instructions to appear for the complainant and seeks
permission to file appearance for the complainant.

2. Permission is accordingly granted.

3. Heard learned advocate for the applicant, learned
advocate Mr.V.B. Malek for the complainant and learned A.P.P.
for the respondent State.

4. This application is filed under Section 439 of the Code of
Criminal Procedure for regular bail in connection with F.I.R.
being C.R.No.I-27 of 2017 registered with Thangadh police
station, Surendranagar for the offences punishable under
Sections 376, 363 and 366 of the Indian Penal Code and

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Sections 12, 3(A) and 5(L) of the POCSO Act.

5. Learned advocate for the applicant has submitted that
the applicant and the prosecutrix were in love with each other
and the prosecutrix accompanied the applicant of her own and
thereby, abandoned the guardianship of her parents
voluntarily.

6. Learned APP, while opposing the application, has
submitted that at the relevant time, the prosecutrix was aged
16 years 04 months. She being the minor, the question of
consent does not arise and therefore, the offence u/s 376 read
with POCSO Act has been committed and therefore, the
applicant may not be enlarged on bail.

7. Heard learned advocates appearing for the respective
parties in great detail and perused the records.

8. This is an unusual case of boy and girl having affair. As
the prosecutrix was minor, the applicant is sent behind prison
because of the complaint lodged by the father of the
prosecutrix. Undoubtedly, a minor girl is to be protected under
law as there are number of instances of sexual abuses of minor
girls and therefore, there is a special legislation of POCSO in
the year 2012 and amendment in
sections 375 and 376 of the
IPC in 2014. The judiciary takes a very serious note of sexual
offences against women and specially against minor girls.
Upon reading of the statement of the prosecutrix, they both
eloped. Further, the trial Court rejected bail application mainly
on the ground that the girl is minor and her consent is
immaterial.

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9. In the present case, the prosecutrix is 16 years 04
months old and the accused is 23 years old. It appears from
the record and the statement of the prosecutrix that the
prosecutrix was in love with the applicant and left the home of
her own and moved with the applicant at various places.
These are the mitigating factors and therefore, present
application deserves consideration.

10. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R.No.I-27 of
2017 registered with Thangadh police station, Surendranagar
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 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] not leave the territory of India without prior
permission of the Sessions Judge concerned;

[d] not enter into the limits of Thangadh Taluka,
District: Surendranagar till deposition of the victim
girl is recorded by the learned Sessions Court,
except for the purpose of investigation or to attend
the Court proceedings;

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

[f] 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;

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11. The competent authority will release the applicant only if
the applicant 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 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
observations of preliminary nature, qua the evidence at this
stage, made by this Court while enlarging the applicant on bail.

12. Rule made absolute to the aforesaid extent. Direct
service is permitted.

(S.H.VORA, J.)
Hitesh

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