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2025 DIGILAW 6 (GUJ)

Soyeb Ibrahimbhai Chanda v. State of Gujarat

2025-01-02

HASMUKH D.SUTHAR

body2025
ORDER : 1. RULE. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 – State of Gujarat and learned advocate Mr. Vatsal D. Ruparel waives service of notice of Rule for and on behalf of respondent No.2. 2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11203038240442 of 2024 registered with Mangrole Police Station, District Junagadh for the offences punishable under Sections 376(3), 376(2)(N), 323, 506(2) and 114 of the Indian Penal Code, 1860 and sections 5(l), 8 and 12 of the Protection of Children from Sexual Offences Act (for short “POCSO Act”). 3. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and has been arraigned only because the applicant happens to be the uncle of accused No.1 and the allegation of rape and under the POCSO Act are against accused No.1. Further, the FIR is filed belatedly after a delay of six months as a counter blast to the complaint filed by the applicant’s side against the family members of the victim. There is no any form of sexually aggravated penetrative assault committed by the present applicant punishable either under the POCSO Act or under the IPC. The only role attributed to the present applicant in the second part of FIR is that the applicant administered threat to the victim to close her way to school if she do not remain silent about the sexual assault done by accused No.1. Hence, now nothing remains to be recovered or discovered from the present applicant and therefore, custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail. 4. Learned Additional Public Prosecutor appearing on behalf of the respondent No.1 – State and learned advocate Mr. Ruparel for respondent No.2 – original complainant have opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that present applicant is involved in the offence and has abetted the offence and is also having past antecedents. Ruparel for respondent No.2 – original complainant have opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that present applicant is involved in the offence and has abetted the offence and is also having past antecedents. Herein, victim is a minor girl against whom accused No.1 committed the offence of rape and under the POCSO Act and the applicant abetted in the commission of offence and if applicant is protected then the investigation will be hampered and possibility of tampering with evidence cannot be ruled out. Merely because complaint prior in point of time was filed by the applicant’s side against the family members of the victim is not a ground to allow the present application. Further, as the applicant had threatened the victim, the present FIR is filed belatedly after a delay of six months and once again the accused has started loitering before the house of the victim. Hence, as custodial interrogation of the applicant is required, he has requested to dismiss the present application. 5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects. (1) Offence is not punishable with life imprisonment or death penalty; (2) The allegation against the applicant is that he administered threat to the victim to keep silent as regards the sexual assault committed against her by accused No.1 failing which her right to way to school will be closed and she will have to face dire consequences. Except this no any allegation is made against the present applicant; (3) The applicant’s side had filed a complaint against the family members of the victim and keeping grudge of the same, present FIR is filed after a delay of six months; (4) Present is a case of over-implication. 6. Considering the aforesaid aspects and the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941 , wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 , I am inclined to allow the present application. 7. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 , I am inclined to allow the present application. 7. In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR being C.R. No.11203038240442 of 2024 registered with Mangrole Police Station, District Junagadh , the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 09/01/2025 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and 8. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. 9. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.