R/CR.MA/1935/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 1935 of 2018
KAMLESHBHAI @ KIRIT RANCHODBHAI PIPALIYA….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR.MRUDUL M BAROT, ADVOCATE for the Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
MS SHILPA R SHAH, ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 02/02/2018
ORAL ORDER
1. Heard learned advocate for the applicant, learned
advocate Ms.S.R. Shah for the complainant and learned A.P.P.
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.
being C.R.No.I-2 of 2018 registered with Rajula Police Station
for the offences punishable under Sections 376, 363 and 366
of the Indian Penal Code, u/s 4, 8 and 18 of the POCSO Act and
Section 3(2) and 5 of the Atrocities Act.
3. 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.
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4. Learned APP, while opposing the application, has
submitted that at the relevant time, the prosecutrix was aged
17 years 10 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.
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.
7. In the present case, the prosecutrix is 17 years 10
months 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.
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8. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R.No.I-2 of
2018 registered with Rajula 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;
9. 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
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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.
10. Rule made absolute to the aforesaid extent. Direct
service is permitted.
(S.H.VORA, J.)
Hitesh
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