Gujarat High Court
Chetankumar @ Ketanbhai Chimanbhai ... vs State Of Gujarat on 19 December, 2023
NEUTRAL CITATION
R/CR.MA/22506/2023 ORDER DATED: 19/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22506 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
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CHETANKUMAR @ KETANBHAI CHIMANBHAI GALABHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK C THAKKAR(7133) for the Applicant(s) No. 1
MS ASMITA PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 19/12/2023
ORAL ORDER
1. The present application is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with the FIR being
C.R.11204041231043/2023 registered with the
Mahemdavad Police Station, Ahmedabad for the
offence punishable under Sections 363, 366 and
376(2)(N) of the Indian Penal Code and under
Sections 3(A), 4, 5(L) and 18 of the POCSO Act.
2. Learned advocate for the applicant submitted that
the so-called incident has occurred in the evening
of 07.08.2023, for which, FIR has been lodged on
30.08.2023 and in connection with the same, the
applicant has been arrested on 03.10.2023 and
since then, he is in judicial custody. Learned
advocate submitted that now the investigation is
completed and after submission of the chargesheet,
NEUTRAL CITATION
R/CR.MA/22506/2023 ORDER DATED: 19/12/2023
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the present application is filed. Learned advocate
submitted that at the time of incident, the victim
was aged about 16 years, 8 months and 10 days.
Learned advocate submitted that the statement of
the victim was recorded by the IO and the victim
has also given history before the concerned doctor
and if this Hon'ble Court may cursorily make a
glance upon the history given by the victim, in
that event, it would be found out that there was
consensual relationship between the present
applicant and there was no force used by the
present applicant. Learned advocate has put
reliance upon the order of the Hon'ble Uttar
Pradesh delivered in Criminal Misc. Bail
Application No.45007/2023 and submitted that as
per the reasons assigned in the said judgment,
this present application may be considered.
3. On the other hand, learned APP for the respondent-
State has opposed grant of regular bail looking to
the nature and gravity of the offence. It is
submitted that the role of the present applicant
is clearly spelt out from the body of the
complaint. Learned APP submitted that age of the
victim was below 18 years at the time of
commission of crime. Learned APP submitted that it
is an admitted position of fact that the victim
girl is already married and the present applicant
is the neighbour and despite knowing about the
fact that the victim is already married, the
applicant had abducted/ kidnapped the victim from
NEUTRAL CITATION
R/CR.MA/22506/2023 ORDER DATED: 19/12/2023
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her matrimonial house and the fact that there is
no possibility of their marriage and, thereafter,
the applicant has developed physical relations
with her and, hence, conduct of the applicant is
also required to be taken into consideration at
the time of considering present application. It
is, therefore, urged that the present application
may not be entering.
4. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. I have also
considered the reasoning given by the concerned
court while rejecting the bail application and the
affidavit filed by the IO opposing the said
application.
5. It is the settled position of the law that, at
this juncture detailed discussion of evidence and
canvassing of the allegations contained in FIR as
well as affidavit of the concerned Investigating
Officer or the merits of the case as well, is not
necessary and should be avoided.
6. It is found out from the record available on
record that at the time of incident, the applicant
was aged about 16 years, 8 months and 10 days and
thus, she was minor and the said fact was well
within the knowledge of the present applicant, who
is her neighbour and despite that, he has
developed relation with the victim girl. It is an
NEUTRAL CITATION
R/CR.MA/22506/2023 ORDER DATED: 19/12/2023
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admitted position of fact that there was
consensual relations between the applicant and the
victim but there is no dispute with regard to the
age of the victim i.e. 16 years, 8 months and 10
days and, hence, the consent of the victim is not
required to be taken into consideration at this
stage. Further as submitted by learned APP, the
conduct of the applicant is also required to be
taken into consideration that despite knowing
fully well about the fact that the victim is minor
and married girl, he abducted/ kidnapped her and
took her with him, where he developed physical
relations.
7. The Court has also gone through the decision
relied upon by the learned advocate for the
applicant. There cannot be any dispute with regard
to the ratio laid down in the same. However, in
the facts and circumstances of the case on hand
and this being discretionary relief, which
requires to be granted judiciously, the said
decisions would be of no help to the present
applicant at this juncture.
8. At this stage, I would like to put reliance upon
the decision of the Hon'ble Apex Court in the case
of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI
Through its Director, reported in (2007) 1 SCC 70,
wherein, the Apex Court has laid down that, while
considering an application for regular bail, the
Courts shall have to take into consideration, the
following aspects,
NEUTRAL CITATION
R/CR.MA/22506/2023 ORDER DATED: 19/12/2023
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(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence;
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to
the complainant;
(c) Prima facie satisfaction of the court in
support of the charge;
9. The Hon'ble Apex Court, further, observed at
Paragraphs-10 and 16 thus;
"10. In our opinion none of the aforesaid
decisions can be said to have laid down any
absolute and unconditional rule about when
bail should be granted by the Court and
when it should not. It all depends on the
facts and circumstances of each case and it
cannot be said there is any absolute rule
that because a long period of imprisonment
has expired bail must necessarily be
granted.
16. We are of the opinion that while it is true
that Article 21 is of great importance
because it enshrines the fundamental right
to individual liberty, but at the same time
a balance has to be struck between the
right to individual liberty and the
interest of society. No right can be
absolute, and reasonable restrictions can
be placed on them. While it is true that
one of the considerations in deciding
NEUTRAL CITATION
R/CR.MA/22506/2023 ORDER DATED: 19/12/2023
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whether to grant bail to an accused or not
is whether he has been in jail for a long
time, the Court has also to take into
consideration other facts and
circumstances, such as the interest of the
society."
10. Over and above that, strong apprehension has been
shown by prosecution that if the applicant is
released on bail then, there is possibility of
tampering with the evidence and fleeing away from
the trial or tampering with the evidence and
hampering with the witnesses. Therefore
considering the nature of offence, I am of the
opinion that the present application deserves to
be rejected.
11. Accordingly, the present application is rejected.
12. Needless to say that observations made herein
above are confined to decision of the present bail
application.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
