Maheshbhai Bhupatbhai Devipujak ... vs State Of Gujarat
2022 Latest Caselaw 1118 Guj

    R/CR.A/855/2021                                ORDER DATED: 02/02/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 855 of 2021

==========================================================
           MAHESHBHAI BHUPATBHAI DEVIPUJAK (VAGHARI)
                             Versus
                       STATE OF GUJARAT
==========================================================
Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 02/02/2022

                                ORAL ORDER

The appellant preferred one Criminal Misc. Application No. 399 of 2021 before the Court of learned Special Judge(POCSO) and 3rd Additional Sessions Judge, Bharuch 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 C.R. NO. I-39 OF 2013 with Aamod Police Station, District: Bharuch for the offence punishable u/s. 363, 366, 376, 506(2), 323 and 114 of the Indian Penal Code ; u/s. 4, 6 and 12 of the POCSO Act and u/s. 3(1)(12), 3(2)(5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short "the Atrocities Act") wherein, the learned Special Judge(POCSO) and 3rd Additional Sessions Judge, Bharuch rejected the said

R/CR.A/855/2021 ORDER DATED: 02/02/2022

application on 11.06.2021.

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

Heard learned advocate for the appellant and learned APP for the respondent-State.

Learned advocate for the appellant has submitted that so far as the role of the appellant is concerned as alleged in the FIR that the appellant is sitting on the bike with main accused and victim and as per the statement of victim and medical papers, the victim had not stated that the appellant had sexually exploited the victim. That the appellant had not kept physical relationship against will of the sister of the complainant. That, the appellant has no criminal antecedents. From the bare reading of the FIR, it is found that no prima facie case is made out against the appellant. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed by Special Judge(POCSO) and 3rd Additional Sessions Judge, Bharuch and release the appellant on bail.

Learned APP for the respondent-State has strongly objected the arguments advanced by learned advocate for the appellant and submitted that name of the present appellant is clearly disclosed in the complaint by the original complainant

R/CR.A/855/2021 ORDER DATED: 02/02/2022

about abetting co-accused. It was further submitted that during the course of investigation, involvement of the present appellant is clearly fond by the prosecution. The serious offence is committed by the appellant as well as other co- accused persons and therefore, no lenient view can be taken in favour of the appellant by this Court. Referring the medical examination of the victim, it is submitted that in a history, name of the present appellant was also disclosed by the complainant. Hence, it was requested by learned APP for the respondent-State to dismiss the present appeal.

As per the cause list, notice is served to the respondent no.2. As per police report dated 10.07.2021 of PSI, Aamod Police Station, notice issued by this Court to the respondent no.2 has been served his father. Thus, it appears that then notice has been duly served to the respondent no.2 though today when the matter was called out, none was present for and on behalf of the respondent no.2.

Having considered the facts of the case, submissions made by learned advocate for the appellant as well as learned APP for the respondent-State and police papers produced on record, it appears that this complaint was lodged on 14 th July 2013 by the complainant herself at the age of 17 years. If we peruse the allegations made in the complaint, serious allegations are made against the accused no.1. Against the the

R/CR.A/855/2021 ORDER DATED: 02/02/2022

present appellant, there was allegations that by force, she was compelled to seat on motor cycle of the present appellant along with co-accused and she was dropped near Aamod Bus Stand. Thereafter, the present appellant had left the said place with his motor cycle. No other allegations are made in the complaint by the respondent no.2. it appears that further statement of the complainant was also recorded on 27.01.2021 wherein also same allegations were made by her. As per the submissions, appellant is in judicial custody since January 2021. Considering the allegations levelled against the appellant and role played by the appellant in the offence, custody of the present appellant is not required till the end of the trial, and therefore, 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 11.06.2021 passed by learned Special Judge(POCSO) and 3rd Additional Sessions Judge, Bharuch in Criminal Misc. Application No. 399 of 2021 is hereby quashed and set aside. The appellant is ordered to be enlarged on regular bail on furnishing a bond of Rs. 10,000/- with one surety of like

R/CR.A/855/2021 ORDER DATED: 02/02/2022

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] 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

R/CR.A/855/2021 ORDER DATED: 02/02/2022

prima facie observations made by this Court in the present order. Notice is discharged.

(B.N. KARIA, J) K. S. DARJI