Gujarat High Court
Gautambhai Merambhai Garaniya vs State Of Gujarat on 9 February, 2022
Bench: B.N. Karia
R/CR.A/1961/2021 ORDER DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1961 of 2021
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GAUTAMBHAI MERAMBHAI GARANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) 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
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 09/02/2022
ORAL ORDER
The appellant preferred one Criminal Misc. Application
No. 2252 of 2021 before the Court of learned Additional
Sessions Judge and Special Judge, Rajkot 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. 11208001210092 of 2021 with
Rajkot Mahila Police Station for the offence punishable u/s.
376(2)(n) of IPC and u/s. 3(2)(v) and 3(1)(w)(i) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocity)
Act, 1989 (for short "the Atrocities Act") wherein, the earned
Additional Sessions Judge and Special Judge, Rajkot rejected
the said application on 29.10.2021.
Feeling aggrieved by the said order, the appellant
R/CR.A/1961/2021 ORDER DATED: 09/02/2022
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 the
prosecutrix is aged about 24 years and is a major and is well
capable of understanding consequences of the choices made by
her and after a well informed decision, later on a story of
victimization is created. That, the appellant was falsely being
implicated in the alleged offence. That, the investigation is over
and the charge sheet is filed. That,t eh voluntary participation
of the prosecutrix is apparent from the facts narrated in the FIR
and papers of charge sheet. From the photographs and
screenshots of chatting between the parties , it appears that the
prosecutrix had voluntarily participated and continued to
participate in relationship. Hence, it was requested by learned
advocate for the appellant to quash and set aside the impugned
judgment and order passed by learned court below 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 the appellant is involved in the
serious offence and therefore, the learned trial court has
rejected his application for releasing him on bail. That, even if
R/CR.A/1961/2021 ORDER DATED: 09/02/2022
the appellant was a father of one child, he developed
relationship with the prosecutrix and thereby, he has
committed serious offence. From the charge sheet papers, the
participation of the appellant in the offence is clearly
established., and therefore, no lenient view may be taken by
this Court by granting regular bail. Hence, it was requested by
learned APP for the respondent-State to dismiss the present
appeal.
Today, cause list shows that the notice is duly served to
the respondent no.2. Not only that, from the report of the
Police Inspector, Pradhuman Nagar Police Station, Rajkot dated
29.12.201 annexed with the letter of 14 th Additional Sessions
Judge, Rajkot dated 05.01.2022, it appears that the notice has
been duly served to the respondent no.2. On 19.01.2022, the
respondent no.2 was not remained present before this court
and therefore, this court passed order requesting to learned
APP for the respondent n.1- State to secure presence of the
respondent no.2 by making his inquiry through investigating
officer. Today also, when the matter was called out, respondent
no.2 was not present and therefore, no arguments are
advanced on the side 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
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record, it appears that in connection with the offence
punishable under Sections 376(2)(n) of IPC and u/s. 3(2)(v)
and 3(1)(w)(i) of the Atrocities Act, present appellant was
arrested. It appears that the prosecutrix was aged about 24
years and is major and capable of understanding the
consequences of the choices available with her. It also appears
that investigation is over and charge sheet has been filed and
therefore, the custody of the present appellant would not be
required as he is in custody since the month of October 2021.
From the contents of the complaint lodged by the respondent
no.2, it appears that she voluntarily participated in such kind
of relations alleged in the complaint. It also appears that
certain photographs screen shots of the chatting between the
appellant and the prosecutrix had voluntarily participated in
continue in such kind of relationship. It also appears that the
prosecutrix was also aware with the fact that the appellant was
married and having child and thereby, the physical
relationships were developed by prosecutrix voluntarily with
the present appellant. If we consider the entire FIR, provisions
of Atrocities Act are not applicable since there is nothing in the
charge sheet to indicate that alleged offence was carried out
because of the fact that prosecutrix is belonged to Scheduled
Caste.
Considering the nature and gravity of assertion made
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against the appellant and in the facts and circumstances of the
case and considering the nature of allegations made against the
appellant in the First Information Report as well as considering
the role of present appellant in the alleged offence, 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
29.10.2021 passed by learned Additional Sessions Judge and
Special Judge, Rajkot in Criminal Misc. Application No. 2252
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 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
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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
prima facie observations made by this Court in the present
order. Notice is discharged.
(B.N. KARIA, J)
K. S. DARJI
