Rahul Bharatbhai Solanki vs State Of Gujarat

Nirzar S. Desai, J

Heard learned advocate Mr.Kumar H. Trivedi for the applicant and learned Additional Public Prosecutor Mr.Dhawan Jaiswal for the respondent – State.

2.1 By this successive bail application filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking release on regular bail in connection with the FIR being C.R.No.11202002210653 of 2021 registered with City C- Division Police Station, Dist: Jamnagar for offences punishable under Sections 376(2)(i) (j), 363, 354, 354(A) and 114 of the Indian Penal Code, under Sections 4, 6, 8, 12 and 18 of the POCSO Act and under Section 3(2)(5) of the Prevention of Atrocities Act.

3.1 Learned advocate Mr.Kumar H. Trivedi submitted that this successive application is filed on the ground that though the applicant is in jail since 14.04.2021 till date, the trial is not over. There are 36 witnesses and out of those around 6 witnesses are examined and, therefore, trial will take its own time.

3.2 Learned advocate Mr.Kumar H. Trivedi for the applicant further submitted on merits that out of two accused persons, the role alleged against the present applicant was much less as compared to role attributed to the co-accused persons.

3.3 According to learned advocate Mr.Kumar H. Trivedi in absence of there being any intimate relations, the maximum punishment prescribed under the POCSO Act would not be applicable in the facts of the present case and maximum punishment according to learned advocate Mr.Kumar H. Trivedi would be five years. He submitted that looking to the role of the applicant and nature of the allegations, the applicant is required to be enlarged on regular bail by imposing suitable terms and conditions.

On the other hand, learned APP appearing for the respondent – State vehemently opposed the application. However, he could not dispute the fact that out of 36 witnesses only around 5-7 witnesses are examined and trial may take its own time. Further, from the statement of the victim itself also learned APP could not point out anything which would indicate that there were intimate relations between the victim and the present applicant

In the facts and circumstances of the case and considering the nature of allegations, this Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail. This Court has considered the following facts while exercising discretion in favour of the applicant :-

(i) the investigation is over and the charge-sheet is filed;

(ii) the applicant is in jail since 14.04.2021;

(iii) no past antecedent is attributed to the present applicant;

(iv) in the trial, there are 36 witnesses out of which only 5-7 witnesses are examined and trial may take its own course;

(v) as per learned advocate Mr.Trivedi maximum punishment, even if the applicant is held guilty, would be five years as there were no intimate relations between the applicant and the victim and out of those five years since almost two years the applicant is in jail.

In view of the aforesaid facts, without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No.11202002210653 of 2021 registered with City C-Division Police Station, Dist: Jamnagar on executing personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned 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 injuries 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 Sessions Judge concerned;

[e] furnish latest 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 trial Court;

[f] mark presence before the concerned police station in the first week of every month till the trial is over;

The Authorities will release the applicant only if the applicant 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.

Rule is made absolute to the aforesaid extent. Direct service is permitted.