R/CR.MA/30636/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 30636 of 2017
SOYAB @ SOYLO IMTIYAZBHAI CHOHAN….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
ASHWINI K MEHTA, ADVOCATE for the Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 10/01/2018
ORAL ORDER
1. 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-158 of 2017 registered with Rajkot Taluka police
station, Rajkot for the offences punishable under Sections 363,
366 and 376 of the IPC and u/s 6 of the POCSO Act.
2. 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.
3. Learned APP, while opposing the application, has
submitted that at the relevant time, the prosecutrix was aged
17 years 4 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
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applicant may not be enlarged on bail.
4. Heard learned advocates appearing for the respective
parties in great detail and perused the records.
5. Learned advocate for the applicant tenders affidavit of
the applicant, which is ordered to be taken on record. As per
the affidavit, the applicant is ready and willing to marry with
the victim girl upon her attaining the age of majority.
Therefore, the applicant may be enlarged on regular bail by
imposing suitable conditions.
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 4 months
old and the accused is 20 years 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
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consideration.
8. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R.No.I-158
of 2017 registered with Rajkot Taluka police station, Rajkot 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;
[f] marry with the victim girl upon her attaining
the age of majority and subject to consent of
the victim girl, without fail, as per undertaking
filed before this Court.
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
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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
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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