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2022 DIGILAW 1209 (GUJ)

Navinbhai Malabhai Darji v. State Of Gujarat

2022-10-04

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned Advocate Mr.Nishit Gandhi on behalf of the appellant, learned Additional Public Prosecutor Mr. Ronak Raval on behalf of the respondent-State and learned Advocate Mr.Saiyed for the First Informant. 2. By way of this appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act read with Section 439 of the Code of Criminal Procedure, the appellant seeks to be released regular bail in connection with F.I.R. No. 11195007220439 of 2022 registered with Bhabhar Police Station, District Banaskantha on 15/16.6.2022 for offences punishable under Sections 306, 114 of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by quashing and setting aside the order dated 21.9.2022 passed by the learned 7th Ad hoc Additional District and Sessions Judge, Diyodar, Banaskantha in Criminal Misc. Application No.233 of 2022. 3. Learned Advocate Mr.Gandhi on behalf of the appellant would submit that the present FIR is the third FIR in question with regard to the deceased, who committed the unfortunate act. Learned Advocate Mr.Gandhi would submit that as such on 6.7.2021, the deceased had left the school and did not return to her home and, therefore, an FIR No.11195007210761 came to be lodged on 7.7.2021 for the offence punishable under Section 363 of IPC. Later on, according to the learned Advocate Mr.Gandhi, investigation had revealed that the victim/prosecutrix had reached Ahmedabad from her native place at Bhabhar and whereas at Ahmedabad, a shopkeeper had her about the presence near the bus-stand and whereas the victim/prosecutrix had informed that her father had passed away and her mother had married someone else and whereas she was staying with her uncle and aunt, and since her aunt was not treating her well, the prosecutrix/victim had left her home. It appears that thereafter the Investigating Officer had taken the prosecutrix and produced her before the learned Magistrate and whereas later on a “C” Summary Report had been filed by the Investigating Officer on 31.8.2021. 3.1. Learned Advocate Mr.Gandhi would further submit that thereafter the victim/prosecutrix had filed another FIR on 27.8.2021 being FIR No.11195007210764 inter alia alleging that on 28.6.2021 the accused, including the present appellant had tried to outrage her modesty in her school on 6.7.2021, which had prompted the victim to leave her home. 3.1. Learned Advocate Mr.Gandhi would further submit that thereafter the victim/prosecutrix had filed another FIR on 27.8.2021 being FIR No.11195007210764 inter alia alleging that on 28.6.2021 the accused, including the present appellant had tried to outrage her modesty in her school on 6.7.2021, which had prompted the victim to leave her home. Learned Advocate Mr.Gandhi would submit that as such in the said FIR initially there was no allegation of the prosecutrix/victim having been raped. Learned Advocate would submit that thereafter “A” Summary Report had been filed by the Investigating Officer on 24.10.2021, which had been returned by the learned Trial Court on 29.11.2021, directing further investigation. Learned Advocate would submit that again thereafter the victim/prosecutrix had given a further statement on 4.11.2021 inter alia alleging commission of offences punishable under Section 376(3) of IPC and offences punishable under Sections 3 and 4 of POCSO Act. Learned Advocate Mr.Gandhi would submit that upon addition of such sections, the appellant had approached this Court questioning the investigation and whereas vide an order dated 7.1.2022 learned Coordinate Bench of this Court had inter alia protected the appellant and other accused by directing the Investigating Officer not to take any coercive action against the said accused. Learned Advocate would submit that thereafter on 6.6.2022 the prosecutrix/victim committed the unfortunate act and whereas the FIR in question came to be filed on 15.6.2022 inter alia alleging commission of offence under Sections 306 and 114 of IPC. 3.2. Learned Advocate would submit that as such beyond the incident, which is subject matter of the second FIR and where the appellant had been protected by this Court, no further allegation has been made by the prosecutrix/victim. Learned Advocate would submit that there is no overt act committed by the present appellant as can be found out from the suicide note or from the investigation, which would, in any way, show that the present appellant had instigated or has harassed the victim, leading her to commit the unfortunate act. Having regard to such submissions, learned Advocate Mr.Gandhi would submit that this Court may release the present appellant on regular bail. 4. Having regard to such submissions, learned Advocate Mr.Gandhi would submit that this Court may release the present appellant on regular bail. 4. This appeal is vehemently objected to by the learned APP Mr.Raval, who would submit that while the chronology of events as stated by the learned Advocate for the appellant may be correct, but at the same time, the fact of a minor girl having committed suicide is something, which may not be overlooked by this Court at this stage. To a pointed query by this Court, as regards any overt act played by the appellant after filing of the second FIR or even after the order of this Court dated 7.1.2022, learned APP Mr.Raval would fairly submit that investigation has not found out any such material. 5. This appeal is also vehemently objected to by the learned Advocate Mr.Saiyed appearing for the First Informant. Learned Advocate Mr.Saiyed would submit that the victim/prosecutrix had, on account of the act committed by the appellant, left with no choice, had committed the unfortunate act. Learned Advocate would submit that the suicide note clearly reveals the name of the present appellant. Learned Advocate would further submit that the appellant being a teacher of the school, whereas the co-accused have been released by this Court, more particularly being co-students of the prosecutrix/victim and having been released on the ground that they were juvenile, such aspect may not be taken into consideration by this Court while considering the present appeal. 6. Having heard the learned Advocates for the parties, having gone through the investigation papers and documents on record, following aspects are considered by this Court: 6.1. The present appellant having been arrested and in custody since 16.6.2022; 6.2. The fact of the FIR having been filed against the appellant inter alia for offence punishable under Section 354 and later on under Section 376(3) of IPC and whereas the learned Coordinate Bench having protected the appellant and other accused; 6.3. The fact that there being no allegation of the present appellant having, in any way, instigated or harassed the deceased, which could come under the ambit of abetment as defined under Section 107 of IPC; 6.4. As a matter of fact, it also appears that after the second FIR there was no contact between the deceased and the present appellant; 6.5. As a matter of fact, it also appears that after the second FIR there was no contact between the deceased and the present appellant; 6.5. It also appears that substantial part of the investigation is over and whereas having regard to the aspects as noted herein above and also considering the fact that the appellant is a 26 year old teacher, this Court is inclined to consider the present appeal. 7. In the facts and circumstances of the case and considering the nature of allegations made in the FIR and without discussing the evidence in details as well as without going into details, prima-facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the appellant on bail. 8. Hence, the application is allowed and the appellant is ordered to be released on regular bail in connection with F.I.R. No. 11195007220439 of 2022 registered with Bhabhar Police Station, District Banaskantha on 15/16.6.2022, by quashing and setting aside the order dated 21.9.2022 passed by the learned 7th Ad hoc Additional District and Sessions Judge, Diyodar, Banaskantha in Criminal Misc. Application No.233 of 2022, on executing a bond of Rs.25,000/- (Rupees Twenty Five 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 injuries 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] furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior intimation to the Investigating Officer concerned ; [f] mark presence once in a month for a period of next three months at the nearest Police Station of his residence as stated by his to the Investigating Officer and Court concerned. 9. 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. 9. 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. Bail bond to be executed before the lower 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, 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. Direct service is permitted.