NEUTRAL CITATION
R/CR.A/1299/2023 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
1299 of 2023
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SOHIL DAUD KHALIFA
Versus
STATE OF GUJARAT
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Appearance:
MR A A ZABUAWALA(6823) for the Appellant(s) No. 1
DS AFF.NOT FILED (R) for the Opponent(s)/Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 11/10/2023
ORAL ORDER
When the matter is taken up for hearing, though served, none present on behalf of the original complainant.
1. Heard learned advocate or the appellant and learned APP for the respondent - State.
2. Present appeal is filed under Section 14-A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocity Act") challenging the judgment and order dated 29.04.2023 passed by the leaned 6th Additional Sessions Judge & Exclusive Special Judge, Bhuj-Kachchh in Criminal Misc. Application No.465 of 2023, whereby the 6th Additional Sessions Judge rejected the application filed by the present appellant under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR being I- C.R.No.11205036230039 of 2023 registered with Naliya Page 1 of 6 Downloaded on : Thu Oct 12 20:42:50 IST 2023 NEUTRAL CITATION R/CR.A/1299/2023 ORDER DATED: 11/10/2023 undefined Police Station, District : Kachchh for the offences punishable under Sections 376(1), 376(2)(n), 366 and 506 of the IPC, under Sections 3(1)(w) and 3(1)(R) and 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
3. Learned advocate for the appellant has submitted that the appellant is not involved in commission of offence as alleged in the FIR and therefore, looking to the role of the appellant and nature of the allegations, the appellant is required to be enlarged on regular bail by imposing suitable terms and conditions.
3.1. Learned advocate for the appellant has submitted that It is submitted that present appellant is innocent and he has falsely implicated in the offence. It is submitted that nothing is required to be recovered and discovered from the appellant. It is submitted that prosecutrix is major and there was consensual relationship between accused and the complainant, due to social pressure, present complaint is filed. It is submitted that prosecutrix is married and is having children. It is submitted that the prosecutrix went with the accused at different places and they were found from Lucknow. Considering the aforesaid fact, prima facie, it appears that there was a consensual relationship between them. Under the instructions, it is stated that investigation is over and no objectionable material is found from his phone and no obscene material is available, therefore, question of Page 2 of 6 Downloaded on : Thu Oct 12 20:42:50 IST 2023 NEUTRAL CITATION R/CR.A/1299/2023 ORDER DATED: 11/10/2023 undefined viral the video clip does not arise. It is submitted that applicant is sole breadwinner of his family and at present his family is facing the financial crisis. It is further submitted that he is ready and willing to abide by all the conditions imposed upon him. Hence, he has requested to allow the present application.
4. On the other hand, learned APP appearing for the respondent
- State vehemently opposed the appeal and submits that the offence is against the woman and he has given threat and in the guise of viral video clip, he has taken undue advantage. It is submitted that offence is serious in nature affecting the society at large and looking to the facts as well as the allegations made against the appellant, no discretion would be required to be exercised.
5. It is further submitted that even after releasing the appellant, there is no possibility of standstill the trial and possibility of tampering with evidence cannot be ruled out.
6. I have given thoughtful consideration to the arguments canvassed by learned advocates for both the sides. Considering the aforesaid fact and severity of punishment of the alleged offence as investigation is over and charge-sheet is filed, no purpose would be served to keep the appellant behind the bar for long period, obviously, trial would take some time. Hence, discretion may be exercised in favour of the appellant.
Page 3 of 6 Downloaded on : Thu Oct 12 20:42:50 IST 2023NEUTRAL CITATION R/CR.A/1299/2023 ORDER DATED: 11/10/2023 undefined 6.1. 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 appellant on regular bail. This Court has considered the following facts while exercising discretion in favour of the appellant :-
(i) appellant is having one child and she eloped with accused and stayed together at different places;
(ii) investigation is over and charge-sheet is filed;
(iii) complaint is filed belatedly;
(iv) nothing is required to be recovered and discovered from the appellant;
(v) no objectionable material is found from the mobile phone of the accused;
7. The Supreme Court established the principle that "bail is the rule and jail is exception." This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra versus Central Bureau of Investigation reported in (2012)1 SCC 40.
7.1. 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 appellant on regular bail. Hence, present appeal is allowed and the appeal is ordered to be released on regular bail in connection with the FIR being I-C.R.No.11205036230039 of 2023 Page 4 of 6 Downloaded on : Thu Oct 12 20:42:50 IST 2023 NEUTRAL CITATION R/CR.A/1299/2023 ORDER DATED: 11/10/2023 undefined registered with Naliya Police Station, District : Kachchh , 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 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] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;
[g] shall not indulged in such type of activity;
8. The Authorities will release the appellant only if the appellant 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 Page 5 of 6 Downloaded on : Thu Oct 12 20:42:50 IST 2023 NEUTRAL CITATION R/CR.A/1299/2023 ORDER DATED: 11/10/2023 undefined 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 appellant on bail.
9. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 6 of 6 Downloaded on : Thu Oct 12 20:42:50 IST 2023