Ajaybhai Surmalbhai Ninama vs Amitkumar Vipulbhai Solanki

Dr. A. P. Thaker, J

[1] Heard Mr. Japan Dave, learned advocates appearing for the applicant and Ms. Moxa Thakkar, learned APP for the respondent State.

[2] The applicant has preferred this successive bail application under Section 439 of the Code of Criminal Procedure for regular bail in connection with an FIR being C.R. No. I- 11821008200862 of 2020 registered with Dahod Rural Police Station, District: Dahod for the offences under Sections 363, 366, 376(3) of the Indian Penal Code and Section 3, 4 and 8 of POCSO Act.

[3] Learned advocate for the applicant submits that earlier this Court vide order dated 24.12.2020 had permitted the applicant to withdraw his application with a liberty to file afresh one. Thereafter, the applicant has moved the trial Court for enlargement on bail, which was rejected by the trial Court vide order dated 27.1.2021. it is submitted that till today, the trial has not completed and on pretext or the other, the complainant nor the victim is remaining present before the Court. It is submitted that the applicant has not made such offence as alleged in the FIR and he is in jail since 9.10.2021 and has submitted that there is no likelihood that the applicant will flee from the justice and, therefore, the applicant may be enlarged on regular bail by imposing suitable conditions.

[4] Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

[5] I have heard learned advocates appearing on behalf of the respective parties. Perused the material placed on record. On perusal of the material placed on record, it appears that charge sheet has been filed and the case is already registered. However, the complainant nor the victim is remaining present before the Court though the Court has adjourned the matter frequently. It also appears from the record that the victim is 15 years old and while the age of the applicant is 18 tears. It also reveals that earlier the boy and girl had ran away and boy had paid some amount to the father of the victim for the alleged action on his part. During the course of argument, learned APP has submitted the original file from where the statement of the victim was perused. It appears from the statement of the victim and other material placed on record that there is substance in the say of the applicant that there is some love affairs between the parties. Since the trial is yet not proceeded and on pretext or another, the complainant and the victim are not remaining present in the Court and therefore, considering the overall facts and circumstances of the case, this Court deems it proper to allow the present application.

[6] In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR C.R. No. I- 11821008200862 of 2020 registered with Dahod Rural Police Station, District: Dahod on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand Only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant 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 the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] not to enter Dahod District till the recording of the evidence of the victim except for attending the Court proceedings;

[f] After recording of evidence of the victim, he shall mark presence before the concerned Police Station on every Monday of each English calendar month for a period of three months and thereafter, alternate Monday for a period of six months, between 11:00 a.m. and 2:00 p.m.;

[g] furnish latest and permanent 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;

[7] 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned 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. 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.

[8] Rule is made absolute to the aforesaid extent. Direct Service permitted.