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CR.MA/13602/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13602 of 2011
=========================================================
SHANKARBHAI
METARBHAI RATHWA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH H SHAH for
Applicant(s) : 1,
MR KL PANDYA, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/09/2011
ORAL
ORDER
1. Rule.
Mr. K. L. Pandya, learned APP waives service of Rule on behalf
of respondent.
2. This
application has been preferred under Section-439 of the Code of
Criminal Procedure, in connection with the
offence being CR No. I-64 of 2011 registered with Rajghad
Police Station, Panchmahal for the offences u/s. 363, 366 and 376 of
the Indian Penal Code.
3. Learned
advocate for the applicant has contended that in the birth
certificate, date of birth of prosecutrix is shown as 10/11/1995 and
she has cleared 12th standard examination. He has
contended that the certificate showing the date of birth of the
prosecutrix creates some doubt. He has also contended that there was
love affair between the applicant and the prosecutrix since long.
There is delay of 10 days in filing complaint and said delay is not
explained by the complainant. He has further contended that this is
a clear case of consent and further he has stated that in this case
charge sheet is filed and therefore, present applicant is required to
be released on bail.
5. Learned
APP Mr. K. L. Pandya has vehemently opposed this application. He has
read the papers and contended that age of prosecutrix is below 16
years and therefore, consent cannot be considered for proving the
applicant innocent. Even he has read the statement of prosecutrix.
The offence under Section-376 of the Indian Penal Code is proved and
prima facie it is established that looking to the question of safety
of society also, such application cannot be entertained.
6. Heard
learned advocate for both the parties. From the perusal of the
papers, it is established that prosecutrix is below 16 years and
therefore, consent cannot be considered. Even from the statement of
the prosecutrix also, the case against the applicant is established
and therefore bail cannot be granted. Hence, looking to the facts
and circumstances of the case, as stated above, this Court is not
inclined to grant bail to the applicant. The application of the
applicant accused deserves to be dismissed. hence, the application
is dismissed.
7. Rule
is discharged. Direct service is permitted.
(Z.K.SAIYED,
J.)
(ila)
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