R/CR.A/1037/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1037 of 2018
HIMMATBHAI @ TINO BHIMABHAI MAKWANA
Versus
STATE OF GUJARAT
Appearance:
MR.MRUDUL M BAROT(3750) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2
MR. H.K. PATEL, APP (2) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 04/09/2018
ORAL ORDER
1. This appeal is filed by the appellant under Section
14(A) of the Prevention of Atrocities Amendment Act, 2015
and Section 439 of the Criminal Procedure Code for
regular bail in connection with FIR registered as C.R.
No.I-29 of 2018 registered with Ghogha Police Station,
District Bhavnagar for the offence punishable under
Sections 366(A), 376, 368, 370(A), 114 of the Indian
Penal Code read with Sections 4 and 17 of the POCSO Act
and under Sections 3(1)(W) and 3(2)(5)A of the Atrocities
Act.
2. Learned advocate appearing on behalf of the
appellant submits that considering the nature of offence,
the appellant may be enlarged on regular bail by imposing
suitable conditions.
3. On the other hand, the learned Additional Public
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R/CR.A/1037/2018 ORDER
Prosecutor appearing for the respondent-State has opposed
grant of regular bail looking to the nature and gravity
of the offence.
4. Learned Advocates appearing on behalf of the
respective parties do not press for a further reasoned
order.
5. I have heard the learned advocates appearing on
behalf of the respective parties and perused the papers.
Following aspects are considered :-
I) The appellant is in custody since 13.03.2018.
II) The investigation is concluded and charge-sheet
is filled.
III) The submission of learned advocate for the
appellant that on point of time the
investigation had exonerated the applicant on
the basis of statement of prosecutrix which was
recorded on 15.03.2018 wherein she had stated
that the applicant was not responsible for any
offence, more particularly the offence under
Section 376 and other sections.
IV) The learned APP submitted that the prosecution
and the authority were the prosecutrix is kept
in so far as the informed about the present
proceedings and produced on record the
communication in that regard.
6. This Court has taken into consideration the law laid
down by the Hon’ble Apex Court in the case of Sanjay
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R/CR.A/1037/2018 ORDER
Chandra v. Central Bureau of Investigation reported in
[2012] 1 SCC 40.
7. In the facts and circumstances of the case and
considering the nature of the allegations made against
the appellant in the First Information Report, 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 appellant on
regular bail.
8. Hence, the present appeal is allowed. The appellant
is ordered to be released on regular bail in connection
with C.R. No.I-37 of 2018 registered with Sama Police
Station 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;
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injurious to the interest
of the prosecution;
(c) surrender passport, if any, to the lower Court
within a week;
(d) not leave the State of Gujarat without prior
permission of the Sessions Judge concerned;
(e) mark presence before the concerned Police
Station on alternate Monday of every English
calendar month for a period of six months
between 11.00 a.m. and 2.00 p.m.;
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R/CR.A/1037/2018 ORDER
(f) furnish the present address of his 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;
(g) not to enter District Bhavnagar for a period of
one year except marking presence before the
concerned Police Station or for attending the
trial.
9. The authorities will release the appellant 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.
10. 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.
11. 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 appellant on bail.
12. The appeal is allowed in the aforesaid terms.
Direct Service is permitted.
(A.Y. KOGJE, J)
JIGNESH
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