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Jogesh Dipsinh Zala (Thakor) vs State Of Gujarat on 10 December, 2024

                                                                                                             NEUTRAL CITATION




                           R/CR.MA/17314/2024                                   ORDER DATED: 10/12/2024

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                            R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                                         CHARGESHEET) NO. 17314 of 2024
                      ==========================================================
                                                JOGESH DIPSINH ZALA (THAKOR)
                                                           Versus
                                                     STATE OF GUJARAT
                      ==========================================================
                      Appearance:
                      MR AKASHKUMAR H PATEL(12877) for the Applicant(s) No. 1
                      MS MEDHA N PANDYA(6171) for the Respondent(s) No.1
                      MR HK PATEL, APP for the Respondent(s) No. 1
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                       Date : 10/12/2024
                                                        ORAL ORDER

[1.0] RULE. Learned APP waives service of rule for the respondent-State.

[2.0] The present application is filed under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short "BNSS") for regular bail in connection with FIR being C.R. No.11191033240221 of 2024 registered with Meghaninagar Police Station, Ahmedabad, for the offences punishable under Sections 363, 366, 354(A) and 376(2)(n) of the Indian Penal Code, 1860 read with Sections 3(A), 4, 5(1), 5(j)(2), 6, 7, 8, 16, 17 and 18 of the POCSO Act.

[3.0] Learned advocate appearing on behalf of the applicant submits that applicant is innocent and has been falsely implicated in the offence. It is submitted that applicant is 24 years old, whereas the victim/prosecutrix is 16 years and 8 months and 29 days old and they were in contact with each other through Instagram since last 1 year. There was no illintention or motive on Page 1 of 6 Uploaded by KUMAR ALOK(HC01091) on Wed Dec 11 2024 Downloaded on : Wed Dec 11 21:45:07 IST 2024 NEUTRAL CITATION R/CR.MA/17314/2024 ORDER DATED: 10/12/2024 undefined part of the present applicant. It is submitted that the victim with her own will came along with the applicant. There was a love affair between the applicant and victim. Investigation is over and charge-sheet is filed. Nothing is required to be recovered and discovered from the accused. He therefore submits that, considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

[4.0] Learned advocate appearing on behalf of the original Complainant has opposed the present application and submitted that victim is minor, therefore, the question of consent and other consideration does not arise. If the applicant is released on bail, then possibility cannot be ruled out to tamper with an evidence as both are residing in the same vicinity. Hence, he has requested to dismiss the present application for regular bail looking to the nature and gravity of the offence.

[4.1.] Learned APP appearing on behalf of the respondent-State has adopted the same arguments canvassed by the learned advocate for the original-Complainant and submitted that if the applicant is released on bail, therefore, there is no possibility to stand to trial and possibility cannot be ruled out to tamper with the evidence. Hence, he requested to dismiss the present application for regular bail looking to the nature and gravity of the offence.

[5.0] While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the Page 2 of 6 Uploaded by KUMAR ALOK(HC01091) on Wed Dec 11 2024 Downloaded on : Wed Dec 11 21:45:07 IST 2024 NEUTRAL CITATION R/CR.MA/17314/2024 ORDER DATED: 10/12/2024 undefined jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:

(i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution;

(ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.

[6.0] I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. In present case, the investigation is over and charge-sheet has been filed. Following aspects have been considered:

(1) Investigation is over and charge-sheet is filed; (2) applicant is 24 years old;

(3) None of the offence alleged is punishable with life sentence or death penalty;

(4) Applicant is behind the bars since 12.05.2024; (5) There is nothing to be recovered or discovered from the applicant;

NEUTRAL CITATION R/CR.MA/17314/2024 ORDER DATED: 10/12/2024 undefined [7.0] This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012]1 SCC 40 as well as in the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that "bail is a rule and jail is exception" as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, present application deserves consideration.

[8.0] In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.11191033240221 of 2024 registered with Meghaninagar Police Station, Ahmedabad, on executing a personal bond of Rs.25,000/- (Rupees Twenty-five Thousand only) with one surety of the like amount to the satisfaction of the 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 injurious to the interest of the Page 4 of 6 Uploaded by KUMAR ALOK(HC01091) on Wed Dec 11 2024 Downloaded on : Wed Dec 11 21:45:07 IST 2024 NEUTRAL CITATION R/CR.MA/17314/2024 ORDER DATED: 10/12/2024 undefined prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;

(c) surrender passport, if any, to the Trial Court within a week;

(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;

(e) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;

(f) furnish the UIDAI Number, Contact Number/s, Passport Number (if he is having the passport), E-mail address and present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence address as well as contact number without prior permission of Trial Court;

(g) not contact with the victim or any other witnesses directly or indirectly;

In case of breach of any conditions, the concerned Trial Court shall have liberty to cancel the bail of the present applicant and will take into judicial custody;

(h) not enter Meghaninagar area till the trial is over;

[9.0] The authorities will release the applicant only if he is not required in connection with any other offence for the time being.

NEUTRAL CITATION R/CR.MA/17314/2024 ORDER DATED: 10/12/2024 undefined 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.

[10.0] 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.

[11.0] At the trial, the 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 applicant on bail.

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

(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 6 of 6 Uploaded by KUMAR ALOK(HC01091) on Wed Dec 11 2024 Downloaded on : Wed Dec 11 21:45:07 IST 2024