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2021 DIGILAW 517 (GUJ)

Milan Kantibhai Chudashma v. State Of Gujarat

2021-07-02

A.S.SUPEHIA

body2021
ORDER : 1. Heard the learned advocates for the respective parties through video conferencing. 2. The present application is filed under Section 439 of the Code of Criminal Procedure in connection with an FIR being C.R.No.I-603 of 2019 registered with Varachha Police Station, Dist. Surat for the offences punishable under Sections 376 (2)(j), (k), (n), 323, 506(2) and 114 of the Indian Penal Code, 1860, Sections 4, 5(H)(L) and 6 of the Protection of Children from Sexual Offences Act, 2012. 3. The brief facts giving rise to filing of the present application are that, an FIR has been registered by the prosecutrix, who is victim and a minor girl aged 16 years and 11 months (D.O.B.- 03.11.2002) at the time of the alleged offence. The FIR has been registered against the applicant along with two other persons i.e. Chiragbhai K. Chudasma and Sonalben P. Gosai. 4. The case of the prosecution in nutshell is that the applicant is a younger brother of accused no.1 i.e. Chirag Chudasma, who was staying at Surat in Varachha and it is alleged that the applicant in the present case i.e. accused no.1 has forced the prosecutrix to maintain physical relation with him. 5. Learned advocate Mr.Dipesh Soni for the applicant has submitted that the accused no.3 i.e. Sonalben is married and having relationship with the present applicant, whereas his brother co-accused i.e. Chirag Chudasma was having relationship with the minor, who is daughter of the accused no.3 i.e. Sonalben. 5.1 It is further submitted by the learned advocate for the applicant that the relationship was consensual and she has eloped with the applicant staying at Surat. It is, thus, submitted that provision of the POCSO Act will not apply to the present applicant as it is not the case of the prosecutrix, who is minor that she was forced to have physical relationship with the present applicant. It is submitted that the applicant is behind bars since 17.11.2019. It is also submitted that there is delay of three months in registration of the FIR and the entire allegations with regard to committing offence of rape with minor prosecutrix are against the accused no.1. It is submitted that accused no.3, who is mother of the prosecutrix i.e. Sonalben Gosai is enlarged on regular bail by this Court on 05.06.2020 order passed in Criminal Misc. Application No.7694 of 2020. It is submitted that accused no.3, who is mother of the prosecutrix i.e. Sonalben Gosai is enlarged on regular bail by this Court on 05.06.2020 order passed in Criminal Misc. Application No.7694 of 2020. Lastly, it is urged by the learned advocate for the applicant that considering the aforesaid aspects of the case, the applicant may be released on bail. 6. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail considering the nature and gravity of the offence. 7. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. This Court has considered following aspects; (i) The role attributed to the accused; (ii) The investigation is over and the charge-sheet; (iii) Prima facie, the allegations under the POCSO Act are levelled against the accused no.1; (iv) Prima facie, it appears that the physical relationship of mother of prosecutrix with the applicant i.e. accused no.2 is consensual; (v) The applicant is behind bars since 07.11.2019; This Court has also 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 ; 8. In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.I-603 of 2019 registered with Varachha Police Station, Dist. Central Bureau of Investigation, (2012) 1 SCC 40 ; 8. In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.I-603 of 2019 registered with Varachha Police Station, Dist. Surat, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one local surety of the like amount to the satisfaction of the learned 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 his passport, if any, to the lower court within a week; (d) not leave the State of Gujarat without prior permission of the concerned Trial Court; (e) mark presence before the concerned Police Station on alternate every Monday for initial six months and thereafter, on alternate Monday of every English calendar month, for a period of six months, between 10:00 a.m. and 2:00 p.m.; (f) furnish latest address of 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 the Trial Court; (g) not leave District Rajkot since the statement of prosecutrix is recorded. 9. 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 concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case. 10. 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, learned 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 accordingly. 11. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode. 12. Rule is made absolute accordingly. 11. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode. 12. Learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court through Fax message, email and/or any other suitable electronic mode.