Dinesh Madhubhai Waghela … vs State Of Gujarat on 5 December, 2017

R/CR.MA/28472/2017 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 28472 of 2017

DINESH MADHUBHAI WAGHELA (DEVIPUJAK)….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)

Appearance:
MR CHINTAN S POPAT, ADVOCATE for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1

CORAM: HONOURABLE MR.JUSTICE S.H.VORA

Date : 05/12/2017

ORAL ORDER

1. Heard learned advocate Mr. Chintan Popat for the
applicant and learned APP for the respondent State.

2. This application is filed under Section 439 of the Code of
Criminal Procedure for regular bail in connection with F.I.R.
registered at C.R. No. I – 83/2017 with Vanthali Police Station
for the offences punishable under
Sections 363, 366 and 376,
114 of the IPC and u/s 4 of the POCSO Act.

3. Learned advocate Mr. Chintan Popat 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.

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4. Learned APP, while opposing the application, has

submitted that at the relevant time, the prosecutrix was aged
about 13 to 15 years old. 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.

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

6. 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. Over and above, it also appears that
there is no evidence showing correct age of victim girl. Not
only that, no ossification test is conducted to assess the age of
the victim girl. According to the medical certificate collected
by the investigating agency, radiological age of the victim girl
is shown between 13 to 15 years. So, in absence of any
scientific evidence with regard to age of the victim girl and
considering her statement, present Criminal Misc. Application

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deserves consideration. 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.

7. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R. No. I –
83/2017 with Vanthali Police Station, 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] appear before the Investigation Officer
concerned, as and when required for
investigation purpose and attend the 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;

8. 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

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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.

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

(S.H.VORA, J.)
shekhar

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