R/CR.MA/16222/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 16222 of 2017
KAUSHIKBHAI CHANDUBHAI PATEL….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1
MS SHRUTI PATHAK,APP for the Respondent(s) No. 1
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 21/07/2017
ORAL ORDER
1. The present application is filed under Section 439 of the Code
of Criminal Procedure, 1973, for regular bail in connection with I-
C.R.No.05 of 2017 registered with Mahuva Police Station, District
Surat, for the offence punishable under Section 376 of the Indian
Penal Code.
2. It is the case of the prosecution that the complainant’s
daughter has alleged that while she was residing with her
parents and pursuing her Second Year of M.A., she got
engaged to the present applicant and the marriage was fixed
in the month of October, 2017. It is also alleged by the
prosecutrix that the applicant had lured her to enter into the
physical relationship with her and thereby, had committed
offence of rape on the promise of marrying with her. It is also
alleged that the applicant had no intention to marry with the
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prosecutrix and therefore, his act of repeated physical
relationship constitutes an offence under the law.
3. According to the applicant, the applicant and prosecutrix
both were engaged. The age of the applicant and prosecutrix
are 28 years and 24 years respectively. The prosecutrix is
educated and also fully knowing the consequences of her act.
It was out of their own volition that they chose to have the
intimate relationship prior to the marriage. The relationship
became sore because of the attitudinal problems and the
prosecutrix has lodged a complaint aggrieved by the breaking
of engagement.
4. The applicant is a government servant serving in Gujarat
Electricity Board and the applicant has only a widow mother
in his family. This is an application for regular bail after filing
of chargesheet.
5. Learned advocate Mr.Bharda appearing for the applicant
has urged that the applicant is a permanent resident and he
will be available for the trial. He further has urged that the
acts are of by mutual volition.
6. According to the learned Additional Public Prosecutor,
the applicant had no intention to marry with the prosecutrix
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as could be seen from the papers of investigation and hence,
the applicant under the pretext of marriage when has
constituted the offence, no discretion may be exercised in the
applicant’s favour.
7. Having heard both the sides, this Court notices that the
allegation of the prosecutrix is that there was no voluntary
participation in the act of physical relationship on her part. As
held by the Apex Court in case of Deelipsinh @
Deelipkumar vs. State of Bihar reported in AIR 2005 SC
203, for any act to constitute misconception of fact within the
meaning of Section 90 of IPC, a representation deliberately
made by the accused to elicit the assent of the victim without
having any intention or inclination to marry the prosecutrix,
would vitiate the consent. However, whether there was in
fact any intention to marry with the prosecutrix or the
promise was mere a hoax, needs to be established by the
prosecution at the time of trial.
8. At this stage, considering the nature of allegations
levelled against the applicant and the age of both, the
applicant and the victim, coupled with the fact that the
applicant is serving in Gujarat Electricity Board and his
availability at the time of trial is not an issue, the applicant
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requires to be availed the benefit of regular bail with certain
conditions.
9. In view of aforesaid, the present application is allowed
and the applicant is ordered to be released on regular bail in
connection with I-C.R.No.05 of 2017 registered with Mahuva
Police Station, District Surat, on his executing a solvent surety
of Rs.25,000/- (Rupees Twenty Five 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 tamper with any evidence, and /or
documents nor act in a manner injurious to the
interest of the prosecution;
[c] surrender his passport, if any, to the trial court
within a week from the date of his release;
[d] not leave the State of Gujarat without prior
permission of this Court;
[e] mark his presence between 11:00a.m. and 02:00
p.m. before the concerned Police Station on the
first and third Mondays of every English calendar
month for a period of twelve months ;
[f] furnish the present address of his residence to the
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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 enter the revenue limits of Village Baartaad,
Taluka:Mahuva, District Surat, except for the
purpose of marking presence at the concerned
Police Station. The prosecutrix would in no manner
be contacted by the applicant.
10. The authorities will release the applicant 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 trial court concerned will be at liberty to issue warrant or
take appropriate action in the matter.
11. Bail bond to be executed before the trial court having
jurisdiction to try the case.
12. 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.
Rule is made absolute to the aforesaid extent. Direct
service is permitted.
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(MS SONIA GOKANI, J.)
MIRZA
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