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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