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2022 DIGILAW 83 (GUJ)

Arjanbhai Lakhabhai Odedara v. State of Gujarat

2022-01-13

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. The appellant preferred one Criminal Misc. Application No. 485 of 2021 before the Court of learned Additional Sessions Judge, Porbandar u/s. 439 of the Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered vide C.R. No. 11218009210789 of 2021 with Kamlabag Police Station, Porbandar for the offence punishable u/s. 363, 366, 376 (2)(J) and 114 of the I.P.C. and u/s. 3(1)(W) (1), 3 (2)(v) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 2015 (for short "the Atrocities Act") as well as u/s. 4, 8 and 17 of the POCSO Act wherein, the learned Additional Sessions Judge, Porbandar rejected the said application on 30.11.2021. 2. Feeling aggrieved by the said order, the appellant preferred present appeal u/s. 14A of the Atrocities Act. 3. Heard learned advocate for the appellant, learned advocate for the respondent No. 2 and learned APP for the respondent-State. 4. Learned advocate for the appellant has submitted that appellant is innocent person and not directly or indirectly connected with the alleged offence and he has been falsely implicated in the offence. That applicant is not named in the FIR and as per the FIR itself, no any offence has been made out against the present appellant and FIR was lodged after delay of three days. Appellant has been implicated on the basis of Section 114 of the Indian Penal Code and role of appellant is very limited to facilitate main accused. It is further submitted that investigation is over and charge-sheet is filed. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order dated 30.11.2021 passed by learned Additional Sessions Judge, Porbandar in Criminal Misc. Application No. 485 of 2021 and release the appellant on bail. 5. Learned advocate for the respondent No. 2 as well as learned APP appearing for the respondent-State have strongly objected the submissions made by learned advocate for the appellant and submitted that participation of the present appellant is very clear from the prosecution papers that he is involved in the serious offence. 5. Learned advocate for the respondent No. 2 as well as learned APP appearing for the respondent-State have strongly objected the submissions made by learned advocate for the appellant and submitted that participation of the present appellant is very clear from the prosecution papers that he is involved in the serious offence. It is further submitted that having knowledge that victim was a minor and was a member from the Scheduled Caste and Scheduled Tribe, the appellant abetted elder brother at the time of running away from the place of offence and has committed an offence of kidnapping, rape etc. That serious offence is committed by the present appellant in abetting to his real brother who is the accused No. 1 shown in the complaint. That appellant cannot be given any benefit by granting bail as prayed. Hence, it is requested by learned advocate for the respondent No. 2 as well as learned APP appearing for the respondent-State to dismiss present criminal appeal. 6. Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State, it appears that alleged offence was registered initially under Sections 363 and 366 of the Indian Penal Code on 14.09.2021, however, it was occurred on 11.09.2021. Only accused shown in the complaint was Mr. Raj Odedara, who happens to brother of the present appellant. Thereafter, it appears that Investigating officer has added Sections 376 (2)(J), 114 and Sections 4, 8 and 17 of the POCSO Act as well as Sections 3(1)(W) (1), 3(2)(v) and 3(2)(va) of the Prevention of Atrocities Act, 2015 by submitting a report to the learned Additional District and Sessions Judge on 18.09.2021. If we peruse the allegations made in the complaint, age of the victim was more than 17 years. While considering the allegations levelled against the accused shown in the complaint, there is no whisper or iota of alleged any allegations against the present appellant in abetting the main accused in committing the alleged offence. For the first time, in a report dated 18.09.2021 submitted by the Investigating officer, it was stated that present appellant has abetted his brother and running away from the place, victim with the brother on his motorcycle. From the entire papers, it appear that no other allegations are made by the complainant or any of the witnesses against the present appellant. From the entire papers, it appear that no other allegations are made by the complainant or any of the witnesses against the present appellant. 7. Considering the facts and allegations made as well as police papers, this Court is of the view that as no allegations are made to attract any provisions of Atrocities Act as well as under Section 376, 363 and 366 of the I.P.C., present appellant is entitled to claim for bail. Hence, this Court is of the view that present criminal appeal deserves consideration. 8. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 30.11.2021 passed by learned Additional Sessions Judge, Porbandar in Criminal Misc. Application No. 485 of 2021 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs.10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that appellant 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 India without prior permission of the concerned Trial Court; [e] furnish the present 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 this Court; 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. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. 10. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Notice is discharged. 11. This order be communicated to the applicant through Jail Authorities by the Registry as well as learned Sessions Court concerned.