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2023 DIGILAW 122 (BOM)

Shambhu Gawde v. State

2023-01-09

B.P.COLABAWALLA

body2023
JUDGMENT 1. The present application is filed under Sec. 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail. 2. The Applicant is a resident of Chopdem, Pernem, Goa, who resides along with his mother, one sister and one brother who is married. The Applicant is presently unemployed and does not have any source of income. I am informed that despite this statement in the application, as on today, the Applicant does odd jobs outside the jurisdiction of Goa. 3. It is the case of the Applicant that he was having friendly relations with one girl resident of Chopdem, Goa, since February, 2019. In the year 2021, the Applicant informed his mother about his relationship with the said girl and had informed her that he wanted to get married to the said girl. At that time, the Applicant was informed by his mother that he should not have any relationship with the said girl till he starts earning for himself and is able to take care of the demands made by the said girl. It is thereafter the case of the Applicant that as per the advice of his mother he broke his ties with the said girl and stopped communicating with her since December, 2021 and also stayed away from her. Thereafter, on 27/4/2022, the Applicant was requested by the said girl to come to meet her in the District Hospital, Mapusa, as she was having some health issues with her stomach. Since the Applicant was aware of her health issues and due to their past friendly relationship, the Applicant, on humanitarian grounds, visited the said girl in the District Hospital, Mapusa. When he visited her, the said girl was alone and no other family members were present. It is at that time, that the Applicant learnt that the said girl had delivered a baby, which unfortunately expired during the process of delivery. The Applicant told the said girl that he would call her parents and her other family members to the hospital and inform them about the said incident to which the said girl totally disagreed and said that she was afraid of her family members. Despite this, the Applicant stayed with her in the hospital and assisted her and then also informed her family members of the said delivery. 4. Despite this, the Applicant stayed with her in the hospital and assisted her and then also informed her family members of the said delivery. 4. It is the case of the Applicant that thereafter the family members of the said girl came to the hospital, abused the Applicant, and forced him to get married to the said girl immediately. The Applicant informed the said family members that he could not get married now as he is not settled and does not have any source of income to look after the said girl. The Applicant also informed her family members that he does not have any room in his house to stay if he gets married and that his mother will not consent to their marriage. He also informed the family members that consent of his mother was required to register his marriage as he was just 19 years old. It is the Applicant's case that despite all this, the family of the said girl threatened the Applicant that if he did not marry the said girl, they would file a false case of rape and other offences against him and his family members. Since the Applicant was afraid that the family members of the said girl were making false allegations against him, he decided to go out of Goa in order to search for a job and earn some income. It is now learnt by the Applicant that the Pernem Police have registered an offence against him under Sec. 376 and 420 of the Indian Penal Code (IPC) under Crime No. 90/2022. It is in these circumstances that the present application for anticipatory bail is filed. 5. The learned Counsel appearing on behalf of the Applicant submitted that the complaint filed by the family members of the said girl is completely false and motivated. He submitted that in the facts of the present case, there is no case whatsoever made out under Sec. 376 or Sec. 420 of the IPC. He further submitted that even his birth certificate clearly reflects that at the time when the complaint was filed and even when the FIR was registered, the Applicant was around 19 years old and, therefore, as per the Goa Family Law, the consent of his parents would be required in order for him to get married (as he was under 21 years of age). He has further brought to my attention that now a chargesheet is also filed and the investigation is complete. Hence, there would be no reason for any custodial interrogation which would warrant his arrest. Thus, in these circumstances, he prays that the above application be allowed. 6. On the other hand, the learned Additional Public Prosecutor submitted that under Sec. 53-A of the Cr.P.C., the Applicant/Accused has not presented himself for examination by a Medical Practitioner as required under the said Sec. . This is for the reason as he is currently not in Goa. The learned Additional Public Prosecutor also submitted that under Sec. 173(8), once the Applicant submits himself to the Medical Practitioner as required under Sec. 53-A, the Investigating Authorities may apply for further investigation depending on the results given by the Medical Practitioner and file a supplementary chargesheet if necessary. He submitted that considering the Applicant has remained outside the jurisdiction of this Court, there is a serious apprehension that he may flee if granted anticipatory bail. 7. I have heard the learned Counsel appearing on behalf of the Applicant as well as the learned Additional Public Prosecutor for the State. I have also perused the above application. It is not in dispute that on the date of the filing of the FIR, the Applicant was approximately 19 years of age. He would require the consent of his parents before he can get married. Be that as it may, the learned Counsel appearing on behalf of the Applicant submitted that he would submit himself to the examination of a Medical Practitioner as required under Sec. 53-A of the Cr.P.C., as and when called upon to do so by the Investigating Authorities. He has further stated that he will not leave the jurisdiction of Goa without the express permission of the Trial Court, Panaji. 8. Considering the facts of the case and the statements made on behalf of the Applicant and which are accepted as undertakings given to the Court, the following order is passed : ORDER (a) The above application is allowed. (b) In the event of arrest in connection with Crime No. 90/2022 registered with Pernem Police Station, the Applicant-Mr. Shambhu Gawde @ Korgaonkar, shall be released on bail on furnishing a PR bond to the extent of Rs.25, 000.00 with one surety in the like amount. (b) In the event of arrest in connection with Crime No. 90/2022 registered with Pernem Police Station, the Applicant-Mr. Shambhu Gawde @ Korgaonkar, shall be released on bail on furnishing a PR bond to the extent of Rs.25, 000.00 with one surety in the like amount. (c) The Applicant shall report to the concerned Police Station as and when called upon. (d) Additionally, the Applicant will also fully cooperate with the Police Authorities including subjecting himself to a medical examination under Sec. 53-A of the Cr.P.C. (e) The Applicant shall not leave the jurisdiction of Goa without the express permission of the Trial Court. (f) The Applicant shall not directly or indirectly make any inducement, threat or promise to any persons connected to the facts of the case so as to dissuade him/her from disclosing the facts to the Court or to any Police Officer and shall not tamper with any witnesses. 9. The above application is disposed of in the aforesaid terms. 10. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.