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Sunil Jivanbhai Makwana vs State Of Gujarat on 12 February, 2018

R/CR.MA/3043/2018 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 : 12/02/2018


1. Heard learned advocate Mr. Haresh Joshi for the
applicant and learned APP for the respondent State.

2. This application is filed under Section 439 of the Code of
Criminal Procedure for regular bail in connection with F.I.R.
registered at C.R. No. I – 25/2016 with Bhesan Police Station
for the offences punishable under Sections 363, 366, 376 and
114 of the IPC and u/s 4, 6 and 8 of the POCSO Act.

3. Learned advocate Mr. Haresh Joshi 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.

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4. Learned APP, 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 read with POCSO
Act has been committed and therefore, the applicant may not
be enlarged on bail.

5. Heard learned advocates appearing for the respective
parties in great detail and perused the records.

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 old and
the accused is 21 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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8. Hence, the application is allowed and the applicant is
ordered to be released on bail in connection with C.R. No. I –
25/2016 with Bhesan Police Station, 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

[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

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
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

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observations of preliminary nature, qua the evidence at this
stage, made by this Court while enlarging the applicant on

10. Rule made absolute to the aforesaid extent. Direct
service is permitted.

(S.H.VORA, J.)

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