Gujarat High Court
Kantilal Ratilal Mer T. Koli vs State Of Gujarat & on 21 December, 2017
Author: S.H.Vora
Bench: S.H.Vora
R/CR.MA/30204/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 30204 of 2017
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KANTILAL RATILAL MER T. KOLI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR LAXMANSINH M ZALA, ADVOCATE for the Applicant(s) No. 1
PARIMALSINH J VAGHELA, ADVOCATE for the Applicant(s) No. 1
SWETA A DAVE, ADVOCATE for the Applicant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR M D RAHEVAR, ADVOCATE for the Respondent(s) No. 2
MR LB DABHI APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 21/12/2017
ORAL ORDER
1. Heard learned advocate for the applicant, learned advocate Mr.M.D. Rahevar for the complainant and learned A.P.P. for the respondent - State.
2. This application is filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with F.I.R. being C.R.No.I-34 of 2017 registered with Chotila police station for the offences punishable under Sections 363, 366, 376, 506(2), 507 and 114 of the Indian Penal Code, Section 3(a), 4 and 17 of the POCSO Act and Sections 3(1)(R)(S) (W-1), 3(2)(5- A) and 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendments Act, 2015.
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R/CR.MA/30204/2017 ORDER
3. Learned advocate for the applicant has submitted that the applicant and the prosecutrix were in love with each other and the prosecutrix accompanied the applicant of her own and thereby, abandoned the guardianship of her parents voluntarily.
4. Learned APP, while opposing the application, has submitted that at the relevant time, the prosecutrix was aged 16 years and 10 months. She being the minor, the question of consent does not arise and therefore, the offence u/s 376 read with POCSO Act has been committed and therefore, the applicant may not be enlarged on bail.
5. Heard learned advocates appearing for the respective parties in great detail and perused the records.
6. This is an unusual case of boy and girl having affair. As the prosecutrix was minor, the applicant is sent behind prison because of the complaint lodged by the father of the prosecutrix. Undoubtedly, a minor girl is to be protected under law as there are number of instances of sexual abuses of minor girls and therefore, there is a special legislation of POCSO in the year 2012 and amendment in sections 375 and 376 of the IPC in 2014. The judiciary takes a very serious note of sexual offences against women and specially against minor girls. Upon reading of the statement of the prosecutrix, they both eloped. Further, the trial Court rejected bail application mainly on the ground that the girl is minor and her consent is immaterial.
7. In the present case, the prosecutrix is 16 years 10 months old and the accused is 28 years old. It appears from Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Dec 22 00:09:52 IST 2017 R/CR.MA/30204/2017 ORDER the record and the statement of the prosecutrix that the prosecutrix was in love with the applicant and left the home of her own and moved with the applicant at various places. Further, no doubt, the applicant is a married person but, it appears that co-accused - Mr.Sanjaybhai and Mr.Alpeshbhai are enlarged on bail and, therefore, on the ground of parity also, present application deserves consideration.
8. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with C.R.No.I-34 of 2017 registered with Chotila police station on executing a bond of Rs.10,000/-(Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the applicant 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] not leave the territory of India without prior permission of the Sessions Judge concerned;
[d] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.
[e] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned;
9. The competent authority will release the applicant only if Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Dec 22 00:09:52 IST 2017 R/CR.MA/30204/2017 ORDER the applicant 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 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 observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
10. Rule made absolute to the aforesaid extent. Direct service is permitted.
(S.H.VORA, J.) Hitesh Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Dec 22 00:09:52 IST 2017