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CR.MA/3338/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3338 of 2010
=========================================================
BHARATBHAI
VALJIBHAI VADODARIA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MRSMCHUDASAMA
for
Applicant(s) : 1,MS GAYATRI B JADEJA for Applicant(s) : 1,
MR UA
TRIVEDI, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 14/05/2010
ORAL
ORDER
1. The
present application has been filed by the applicant for grant of
regular bail under Section 439 of the Code of Criminal Procedure.
2. The
applicant has been charged with the offences punishable under
Sections 376 and 506(2) of Indian Penal Code, for which the FIR being
I-CR No.64 of 2009 has been registered with Alang Police Station.
3. Learned
advocate Ms.Jadeja submitted that there is a delay in filing the FIR
as it is filed after three days. She further submitted that there is
no proof or evidence like Birth Certificate or School Leaving
Certificate regarding the age of the victim. She further submitted
that according to the report of the Radiologist, the age of the
victim is 15 to 17 years. Therefore, there is variation of two years
and hence the benefit of doubt may be given to the accused. She
further submitted that if the FIR is seen, there was no compulsion
and with free consent the incident has taken place. She further
submitted that the medical evidence also suggests that there are no
injuries which would also corroborate about the aspect of consent.
She also further submitted that the trial is commenced, but it may
take some time during which, the present applicant be released on
bail.
4. Learned
APP Mr.U.A.Trivedi resisted the application and submitted that the
age of the victim is less than 18 years and it cannot be decided or
considered at this stage. He further submitted that the aspect of
consent is irrelevant as the victim is minor. In the circumstances,
particularly when the trial is in progress, the present application
should not be allowed.
5. In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not.
6. It
is well accepted that while deciding the application for bail, the
Court is not required to scrutinize the material and only to
consider whether prima facie case. The relevant aspects like the
gravity of the offence, the statement of the victim, medical
evidence are required to be considered. Further, the aspect of
consent would not be relevant as the victim is stated to be minor.
Moreover, the aspect of cosnsent could be decided with reference to
the evidence regarding the age of the victim during the trial. It
cannot be presumed either way, at this stage. Therefore, without
further elaboration, considering the totality of the facts and
circumstances of the case, more particularly, when the victim is
minor and also when the trial is in progress, the present
application cannot be entertained. However, the alternate prayer
with regard to expediting the trial which is already in progress,
deserves to be considered.
7. Accordingly
the present application deserves to be rejected and it stands
rejected. However, it is directed that the Sessions Court shall
expeditiously dispose of the Sessions Case No.1 of 2010.
(Rajesh
H.Shukla, J.)
Sreeram.
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