R/CR.MA/681/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 681 of
2018
SURESH RAMJIBHAI DEVIPUJAK….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR DIPEN K DAVE, ADVOCATE for the Applicant(s) No. 1
MR LB DABHI APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 23/01/2018
ORAL ORDER
1. By way of the present application under Section 438 of
the Code of Criminal Procedure, 1973, the applicant has
prayed to release him on anticipatory bail in case of his arrest
in connection with the FIR registered as C.R No.I-139 of 2017
registered with Junagadh ‘B’ Division Police Station.
2. 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.
3. Learned APP, while opposing the application, has
submitted that at the relevant time, the prosecutrix was aged
17 years 11 months 27 days. She being the minor, the
question of consent does not arise and therefore, the offence
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u/s 376 of Indian Penal Code has been committed and
therefore, the applicant may not be enlarged on bail.
4. Heard learned advocates appearing for the respective
parties in great detail and perused the records.
5. This is an unusual case of boy and girl having affair.
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.
6. In the present case, the prosecutrix is 17 years 11
months 27 days old and the accused is 27 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 as the applicant has made
out a case for regular bail, there is no impediment in granting
anticipatory bail to the applicant.
7. Considering the papers of investigation supplied by the
learned A.P.P. during the course of hearing and submissions
made at bar as well as considering the law laid down by the
Hon’ble Apex Court in the case of Siddharam Satlingappa
Mhetre vs. State of Maharashtra and Ors. reported in
[2011] 1 SCC 6941, present application deserves
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consideration.
8. In the result, the present application is allowed by
directing that in the event of applicant herein being arrested
pursuant to FIR registered as C.R No.I-139 of 2017 registered
with Junagadh ‘B’ Division Police Station, the applicant shall be
released on bail on furnishing a personal bond of Rs. 10,000/-
(Rupees Ten Thousand only) with one surety of like amount on
the following conditions that the applicant shall :
(a) cooperate with the investigation and make available for
interrogation whenever required;
(b) not directly or indirectly make any inducement, threat or
promise to any person acquainted with the fact of the case so
as to dissuade from disclosing such facts to the court or to any
police officer;
(c) not obstruct or hamper the police investigation and not to
play mischief with the evidence collected or yet to be
collected by the police;
(d) at the time of execution of bond, furnish the address to
the investigating officer and the court concerned and shall
intimate the change of address, if any, to the Court and I.O.;
(e) it would be open to the Investigating Officer to file an
application for remand if he considers it proper and just and
the learned Magistrate would decide it on merits;
9. Despite this order, it would be open for the Investigating
Agency to apply to the competent Magistrate, for police
remand of the applicant. The applicant shall remain present
before the learned Magistrate on the first date of hearing of
such application and on all subsequent occasions, as may be
directed by the learned Magistrate. This would be sufficient to
treat the accused in the judicial custody for the purpose of
entertaining application of the prosecution for police remand.
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This is, however, without prejudice to the right of the accused
to seek stay against an order of remand, if, ultimately, granted
and the power of the learned Magistrate to consider such a
request in accordance with law. It is clarified that the
applicant, even if, remanded to the police custody, upon
completion of such period of police remand, shall be set free
immediately, subject to other conditions of this anticipatory
bail order.
10. At the trial, the Trial Court shall not be influenced by the
prima facie observations made by this Court while enlarging
the applicant on bail.
11. Rule is made absolute. Direct service is permitted.
(S.H.VORA, J.)
Tausif
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