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2019 DIGILAW 265 (GUJ)

Vijaykumar Rajeshbhai Valand v. State of Gujarat

2019-03-26

A.P.THAKER

body2019
JUDGMENT : A P Thaker, J. Admit. Ms.Moxa Thakkar, learned Additional Public Prosecutor waives service of notice of admission for respondent No.1 - State and Ms.Aslesha Patel, learned advocate waives service of notice of admission for respondent No.2. 2. This is an appeal under Section 14(A)(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act" for short) at the instance of the appellant - original accused for bail in connection with the FIR being I - C.R.No.44/2018 registered with Kapadvanj Rural Police Station, District: Kheda for the offences under Sections 363, 366 and 376 of the Indian Penal Code and Section 3(1)(r)(w) (1)(2), 3(2)(v-a) of the Atrocity Act and Sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter be referred to as "the POCSO Act"). 3. It is the case of the appellant that he was arrested in the aforesaid offence and he is in jail. According to him, after completion of the investigation, the investigating officer has filed the charge-sheet. It is also submitted that as per the case of the prosecution, the complainant's daughter, aged about 14 years and 6 moths had been taken away by the accused on the date of incident i.e. on 19.10.2018 and she was coming back after singing of Garba in Navratri; the accused had taken her with him on his motorcycle and, thereafter, she was sent to Balasinor in Ecco Car. It is submitted that in view of the statement of the victim, it is clear that she compelled the accused to take her with him as she wanted to marry. At that time, accused had told her that after she completes majority, he will marry with her and this fact shows that there was no intention on the part of the accused to do anything wrong with the victim. He has contended that during the course of the investigation, the offence under section 376 of the Indian Penal Code has added by the police. 3.1 It is further submitted that after filing of the charge-sheet, the appellant has preferred bail application being Criminal Misc. Application No.172 of 2019 before the District and Sessions Court, Kheda at Nadiad and the same came to be rejected on 07.02.2019 by the learned Additional District and Sessions Judge, Kheda at Nadiad. 3.1 It is further submitted that after filing of the charge-sheet, the appellant has preferred bail application being Criminal Misc. Application No.172 of 2019 before the District and Sessions Court, Kheda at Nadiad and the same came to be rejected on 07.02.2019 by the learned Additional District and Sessions Judge, Kheda at Nadiad. 3.2 According to him, the victim was knowing the accused since long and the accused has never taken disadvantage of their relationship. That on the date of incident, the victim compelled to go with accused and accordingly, she went with him. It is further submitted that the victim was aged around 16 years. It is also submitted that before the doctor, the victim has stated that she has voluntarily went with the accused and when she came back, her father has beaten her and there is no such injury mark in certificate and the victim herself was consenting party. According to him, the appellant is also of young age and both were in deep love. It is further submitted that since, the investigation is completed and the charge-sheet has been filed, there is no need of further investigation and the presence of the accused is not required. It is submitted by the appellant that if he is released on bail, he will not run away and will not temper with the evidence and abide by all the conditions which may be imposed by this Court. 4. Heard Mr.Manish Patel, learned advocate for the appellant, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State and Ms.Ashlesha Patel, learned advocate for respondent No.2. 5. Mr.Manish Patel, learned advocate for the appellant has submitted the same facts which are narrated in the appeal memo and has requested to enlarge the accused on bail on suitable conditions. 6. Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State has submitted that in this case, the victim is minor and, therefore, her consent is immaterial and the rape has been committed on her by the accused. She has submitted that at the time of incident, she was just 15 years and 6 months of age and no consent of her guardian was taken into consideration for taking her away. She has submitted that the charge-sheet has already been filed and charge has already been framed and four witnesses have been examined and the trial is going on. She has submitted that the charge-sheet has already been filed and charge has already been framed and four witnesses have been examined and the trial is going on. She has urged to dismiss the present appeal. 7. Ms.Ashlesha Patel, learned advocate for respondent No.2 has submitted that though there is statement regarding consent but she has given statement before the learned Judicial Magistrate under Section 164 of the Criminal Procedure Code wherein she has narrated the entire facts involving the present accused in the alleged offence. She has urged to dismiss the present appeal. 8. This Court has taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 9. It is pertinent to note that Section 31 of the POCSO Act provides that the provisions of the Criminal Procedure Code including the provisions of the bail and bonds will apply to the proceedings under the POCSO Act. Therefore, the provisions of Section 439 of the Criminal Procedure Code will be applicable and Section 14(1) of the Atrocity Act also provides that the appeal against the order of granting or rejecting the bail by the trial Court lies before the High Court. It is an admitted fact that this is a case wherein the present accused is in jail and the charge-sheet is filed before the trial Court and four witnesses have been examined as stated by the State authority. On perusal of the papers, it appears that the victim girl, in presence of her mother, has categorically stated that she has compelled the present appellant to take her away. It appears from the record that this is a case of love affairs. It is an admitted fact that the accused is in jail since 23.10.2018 i.e. for more than five months. 10. In the facts and circumstances of the case and considering the nature of the allegations made against the appellant in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the appellant on regular bail. 11. Hence, the present appeal is allowed. 11. Hence, the present appeal is allowed. The appellant is ordered to be released on regular bail in connection with I - C.R.No.44/2018 registered with Kapadvanj Rural Police Station, District : Kheda on executing a personal 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 he 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) surrender passport, if any, to the lower Court within a week; (d) not leave the State of Gujarat without prior permission of the Sessions Judge concerned; (e) mark presence before the concerned Police Station on alternate Monday of every English calendar month between 11.00 a.m. and 2.00 p.m., for a period of six months or till the conclusion of the trial, whichever is earlier; (f) furnish the present address of his residence to the 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; 12. The authorities will release the appellant 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. 13. 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. 14. 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 appellant on bail. 15. The appeal is allowed in the aforesaid terms. Direct Service is permitted.