Sanjaybhai @ Suko Jagdishbhai @ Jagubhai Nayka vs State Of Gujarat Q

Gita Gopi, J

This successive bail application is filed by the applicant – accused, after Charge-sheet, under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with FIR C.R. No. 11211035210021 of 2021 registered with Muli Police Station, District: Surendranagar for the offences punishable under Sections 363, 366, 376(2)(j)(n) of the Indian Penal Code, 1860 (IPC) and Sections 3(a), 4 12 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act).

Rule. Learned Additional Public Prosecutor Mr. Bhargav Pandya waives service.

Heard learned advocate Mr. Sajid Y. Kariyaniya for the applicant and learned Additional Public Prosecutor Mr. Bhargav Pandya for the respondent - State.

The learned advocate for the applicant - accused has submitted that this is successive bail application after withdrawal of earlier bail application. He submitted that the applicant – accused is an innocent person and falsely implicated in the offence in question. It is submitted that the applicant is charged with the aforesaid offences under the IPC and the POCSO Act, however, the ingredients of the said offences have not been satisfied.

4.1 The learned advocate for the applicant submitted that the victim was aged about 16 years, 08 months and 24 days at the relevant time. Her statement before the police itself proves that she was in love relationship with the applicant – accused and as per her statement before the Medical Officer, since her uncle and the parents had denied her marriage with the accused, she had asked the applicant - accused to run away and therefore, she had voluntarily gone to the accused. The learned advocate for the applicant submitted that the applicant - accused as well as the victim both are from labour class and were working as a labourer with the brother of the victim and it is stated that, there is delay of about 54 days in filing the impugned FIR, which itself is suggestive of the fact that there had been deliberation with regard to the marriage but the talks could not find a way and therefore, the FIR had been filed.

4.2 The learned advocate for the applicant – accused relied upon an order dated 04.08.2023 passed by the Hon’ble Supreme Court in Special Leave Petition (Criminal) Diary No(s). 17351 of 2023, which was arising out of an order of this Court, whereby, the bail application under POCSO Act was rejected by this Court. The learned advocate for the applicant – accused stated that Hon’ble Supreme Court granted bail, where the petitioner was aged 19 years and the victim was aged 16 years and 07 months. He submitted that the investigation is over and the charge sheet is already filed and accordingly, there is no possibility of tampering and hampering with the evidence.

4.3 Further, it is submitted that the applicant has family roots in the society and therefore, the applicant is not likely to flee away from justice. That the applicant will abide by whatever conditions imposed by the Court. It is, therefore, prayed that discretion may kindly be exercised and grant bail to the applicant - accused.

Per contra, learned Additional Public Prosecutor has vehemently argued that it is a case under the POCSO Act and stated that criminal culpability is a statutory presumption and consent of the victim can never be considered and ultimately, he opposed the grant of bail looking to the nature of offence.

This Court has considered the following aspects:

a) the statement of the victim before the Medical Officer and the fact that the victim and the applicant – accused both were in love relationship for a long period;

b) that the proceedings before the trial Court show that Charge has been framed on 29.10.2021 and since then, the matter has been at the stage of evidence of prosecution and no witness appears to have been examined, and there were about 48 adjournments after framing of the Charge;

c) the investigation is over and charge sheet is filed;

d) as per the catena of decisions of Hon’ble Apex Court, there are mainly three factors which are required to be considered by this Court i.e. prima facie case, availability of applicant - accused at the time of trial and tampering and hampering with the witnesses by the accused;

e) that the learned advocate for the applicant has submitted that the applicant - accused is not likely to flee away;

f) that the applicant - accused is in custody since long i.e. since 24.02.2021;

g) the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception and there should not be pretrial punishment.

Having heard the learned advocates for the parties and perusing the papers produced as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the applicant - accused at the time of trial etc. and the role attributed to the present applicant – accused, the present application deserves to be allowed and accordingly stands allowed. Applicant - accused - SANJAYBHAI @ SUKO JAGDISHBHAI @ JAGUBHAI NAYKA is ordered to be released on regular bail in connection with above-referred FIR, on executing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following 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 India without prior permission of the concerned trial court;

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 the concerned trial Court;

f) shall not enter into Chhotaudepur District till the trial is over, save and except for the Court proceedings.

7.1 If breach of any of the above conditions is committed, the learned 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.

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