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Mahesh Gordhanbhai Makwana vs State Of Gujarat on 8 February, 2018

R/CR.MA/28666/2017 ORDER



STATE OF GUJARAT….Respondent(s)

MR HARESH N JOSHI, ADVOCATE for the Applicant(s) No. 1
MS NISHA THAKORE APP for the Respondent(s) No. 1


Date : 08/02/2018


1. Draft amendment submitted by the learned advocate for
the applicant is ordered to be taken on record. The same is
allowed. Necessary amendment as per draft amendment be
carried out during the course of the day.

2. 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-80 of 2017
with Shapar-Veraval police station.

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

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R/CR.MA/28666/2017 ORDER

4. The learned A.P.P., while opposing the application, has
submitted that at the relevant time, the prosecutrix was aged
17 years. She being the minor, the question of consent does
not arise and, therefore, the offence u/s 376 of the Indian
Penal Code read with provisions of the POCSO Act has been
committed and, therefore, the applicant may not be enlarged
on bail.

5. Heard the learned advocates for the respective parties
and perused the papers.

6. 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.

7. But, considering the police papers supplied by the
learned A.P.P. during the course of hearing, more particularly,
statement of the victim girl, aged 17 years, recorded on
27.01.2018, it appears that there exists love affair between the
applicant and the victim girl. Further, the victim abandoned
the guardianship of her parents voluntarily. Therefore, in view
of 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 consideration.

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R/CR.MA/28666/2017 ORDER

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-80 of 2017 with Shapar-
Veraval 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.
This is, however, without prejudice to the right of the accused
to seek stay against an order of remand, if, ultimately, granted

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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.)

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