Harshadbhai Jayantibhai Patel vs State Of Gujarat

B.N. Karia, J

The appellant preferred one Criminal Misc. Application No. 16 of 2020 before the Court of learned Additional Sessions Judge, Narmada at Rajpipla

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 IÂ‐

C.R. No.18 of 2018 with Garudeshver Police Station, Narmada for the offence punishable under Section 354 of the Indian Penal Code; u/s. 8, 10, 11

and 12 of the POCSO Act; u/s. 3(1)(W), (i), 3(2)(vii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short ""the

Atrocities Act"") as well as u/s. 75 and 82 of the Juvenile Justice Act, 2015 wherein, the learned Additional Sessions Judge, Narmada at Rajpipla

rejected the said application on 29.01.2020.

Feeling aggrieved by the said order, the appellant preferred present appeal u/s 14A of the Atrocities Act.

Heard learned advocates for the respective parties and learned APP for the respondent Nos.1 and 2.

Learned advocate for the appellant has submitted that appellant is falsely implicated in the offence enumerated in the F.I.R. and the said F.I.R. lodged

by the first informant is absolutely false, frivolous and concocted. That investigation is over. That there are in total 28 witnesses out of which 15

witnesses have been examined and including father of the victim/complainant did not support the case of the prosecution and other witnesses has

become hostile. That an amicable settlement has been arrived at between the complainant/ complainant's father and the accused, and now the matter

is settled and as legal guardian and father of the victim as well as the victim herself has no objection if the bail may be granted to the appellant.

Learned advocate for the appellant has drawn attention of this Court towards deposition of the complainant Babubhai Narubhai Rathva recorded

before the Sessions Court who is the father of the prosecutrix as well as deposition of Sumitraben Babubhai Rathva, who is the mother of the

prosecutrix and has submitted that these two material witnesses have not supported the case of the prosecution and they were turned hostile. Other

witnesses are also turned hostile which were examined before the Sessions Court. Hence, it was requested by learned advocate for the appellant to

quash and set aside the impugned judgment and order passed by learned Additional Sessions Judge, Narmada at Rajpipla and release the appellant on

bail.

Learned APP for the respondent Nos.1 and 2 has strongly objected the arguments advanced by learned advocate for the appellant and submitted that

this is a successive bail appeal and there is no change of circumstances. That the appellant is involved in the serious offence with the victim girl as

well as other girl of minor age also. That trial is going on and evidence of the victim is yet to be recorded, and therefore, considering the gravity of the

offence, this Court may not exercise the powers in favour of the appellant at this stage. Hence, it was requested by learned APP for the

respondentÂ​State to dismiss the present appeal.

Learned advocate for the respondent No.3Âoriginal complainant has submitted that respondent no.3 has no objection if the appellant is released on

bail. That respondent no.3 has filed her affidavit raising no objection as well as stating therein that she has no objection if the present appellant would

be released on bail.

Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent

Nos.1 and 2, it appears that the present appellant is in judicial custody since more than two years as well as material witnesses have not supported the

prosecution case. It appears that respondent No.3 has filed affidavit raising no objection if the present appellant is released on bail, and therefore,

considering the nature and gravity of assertion made against the appellant and in the facts and circumstances of the case and considering the nature of

allegations made against the appellant in the First Information Report as well as considering the role of present appellant in the alleged offence, this

Court is of the considered opinion that this is a fit case to exercise the discretion in favour of present appellant by enlarging him on regular bail and

hence, the prayer sought for by the present appellant requires consideration. Hence, this Court is of the view that present appeal deserves

consideration.

In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 29.01.2020 passed by learned Additional Sessions Judge,

Narmada at Rajpipla in Criminal Misc. Application No. 16 of 2020 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular

bail on furnishing a bond of Rs. 10,000/Â 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] not enter into the vicinity where the victim resides;

[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;

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.

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.