Dharmendrabhai Champakbhai Tadvi vs State Of Gujarat

Bhargav D. Karia, J

Heard learned advocate Mr.Apurva Kapadia for the applicant and learned Additional Public Prosecutor Ms. C.M. Shah for the respondent- State.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being CR-

I/31/2015 registered with Garudeshwar Police Station, District : Narmada for offence under Sections 363, 366, 376 of Indian Penal Code read with

Section 4 of the Prevention of Children from Sexual Offences (POCSO) Act, 2012.

Learned Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular

bail by imposing suitable conditions.

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.

Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the peculiar facts of the

case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that

this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

This Court has considered following aspects :

(a) Learned advocate for the applicant states that the applicant has married the victim girl after attaining the age of 18 years and the victim has also

delivered a baby girl on 25th September 2018. He further submitted that the applicant and the victim were staying together since 2015 and the

applicant was arrested only on 24.06.2020 for the alleged offences for the FIR filed in the year 2015.

(b) Learned advocate for the applicant further submitted that the wife-victim is staying at Nari Sanrakshan Gruh, Bharuch with her child as father of

the victim has refused to take her back as well as parents of the applicant has also refused to take her with them. It was therefore, submitted that if

the applicant is released on bail, he undertakes to stay with the his wife and child.

(c) The present case has peculiar facts and circumstances as though it is true that the applicant had eloped with the victim when she was only 15

years, 3 months and 18 days old in the year 2015, but as per the say of the learned advocate for the applicant, the applicant has married the victim girl

on her attaining majority and out of the relationship between the applicant and the victim, a child was born in the year 2018. Thus the applicant and

victim stayed together since 2015 and at present, the victim is also major and applicant is aged about 24 years.

(d) In such circumstances, on humanitarian ground, the applicant is required to be released on regular bail for the welfare of the victim and the child. It

is, however, made clear that releasing the applicant on bail in such peculiar circumstances shall not be treated as precedent for any other matter in

view of peculiar facts of the present case.

(e) The applicant shall stay with the victim and her child and shall keep the victim along with him and shall also report to the Nari Sanrakshan Gruh as

well as trial Court in the first week of every month about the welfare of the victim and child.

Looking to the overall peculiar facts and circumstances of the present case, I am inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of

Investigation, reported in [2012] 1 SCC 40.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C CR-I/31 /2015

registered with Garudeshwar Police Station, District : Narmada on executing a personal bond of Rs.10,000/( Rupees Ten 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 injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] shall not leave Narmada District without prior permission of the concerned trial court till the trial is over;

[e] shall mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months;

[f] shall stay with the victim and her child and shall keep the victim along with him and shall also report to the Nari Sanrakshan Gruh as well as trial

Court in the first week of every month about the welfare of the victim and child.

[g] 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 the concerned trial court;

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 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, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent.

Direct service is permitted. The Registry is directed to communicate this order to the concerned Court/authority by Fax or Email.