Vaghela Vishal Govindsinh vs State Of Gujarat

Umesh A. Trivedi, J

Rule returnable forthwith.

Mr.K.M.Antani, learned APP waives service of rule on behalf of Respondent – State and Mr.B.J.Priyadarshi, learned advocate waives service of rule on behalf of First Informant.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R. No.11206002230045 of 2023 registered with Visnagar Taluka Police Station for the offence punishable under Sections 376, 354-D, 506(1) of the Indian Penal Code as also under Sections 4,8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO’).

Heard Mr.K.I.Kazi, learned advocate for the applicant, Mr.B.J.Priyadarshi, learned advocate for the first informant and Mr.K.M.Antani, learned APP for the Respondent-State. Perused the investigation papers.

Mr.Kazi, learned advocate for the applicant submitted that not only the applicant and the victim are from same age group, they are in relation since long and used to remain in contact over phone at night odd hours. He has further submitted that they had also physical relationship even prior to the incident, as claimed. He has further submitted that the allegations leveled in the First Information Report does not inspire confidence, as stated in it. At the same time, he has further submitted that the very fact that she was sleeping in the house of her grandmother and back door of the same was knocked by the present applicant, which was opened by the victim and then, it is alleged that the applicant committed rape over her, cannot be believed. Therefore, he has submitted that the applicant, who is sought to be involved in offence of rape, which is otherwise not an offence if it had occurred after 6 months of the incident, as claimed in the First Information Report, be released on anticipatory bail and the present applciation be allowed.

Mr.B.J.Priyadarshi, learned advocate for the first informant submitted that as observed in the order passed by the trial Court refusing anticipatory bail to the applicant, the photographs produced by the applicant – accused reflects his mentality and even presuming it to be true, it has been obtained and preserved to blackmail her in future. Therefore, he has submitted that even if physical relationship was with the consent of the victim, it is an offence when her age is less than 18 years, and therefore, no order of anticipatory bail be passed in favour of the applicant.

Mr.K.M.Antani, learned APP has produced for perusal the papers of investigation. Drawing attention of the Court to the call data records, it is pointed out that though they were in contacts in odd hours at late night, since her age is less than 18 years, statutorily it is an offence and therefore, the applicant may not be granted bail, that too, an order of anticipatory bail.

Having heard learned advocates for the appearing parties as also learned APP, perusing the papers of investigation and the impugned order, including First Information Report, it appears that applicant is aged 18 years whereas victim is aged 17 years, 5 months and 10 days, as mentioned in the First Information Report itself. However, they both are in relation, as established from the frequent contacts at odd hours at night in between them establishes that they know each other very well and they had physical relations too. From the frequent contacts at odd hours and that too offence alleged while she was sleeping inside the house of her grandmother alone, she opened back door of the house at night hours establishes their relationship. There may be some other reason for filing First Information Report but the applicant who is aged 18 years cannot be refused discretionary relief of an order of anticipatory bail and I deem it fit to grant the same, more particularly when the victim has already just reached near the age of discretion and entered into a relationship with the applicant willingly, though claimed to be against her wish.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No.11206002230045 of 2023 registered with Visnagar Taluka Police Station on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(c) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(d) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(e) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and

(f) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

(g) shall not enter the Village: Bhandu (Ranchhodpura), Taluka: Visnagar, District: Mehsana, for a period of 3 (three) months.

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

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