MAHESHBHAI CHAKUDIYABHAI RATHVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.Vinod Gamara, learned advocate for the applicant. He has submitted that pursuant to a case filed and he came to be convicted for an offence under Ss. 363, 366 and 376 of the Indian Penal Code (for short ' IPC '), he is ordered to undergo imprisonment for a period of 7 years for offence under Sec. 376 of ' IPC ' and 5 years for an offence under Sections 363 and 366 . At the same time, he is also to undergo rigorous imprisonment for 10 years for an offence under Sec. 4 of the Protection of Children from Sexual Offences ( for short 'POCSO') Act, 2012 with fine and default stipulation. He has submitted that during the trial, the applicant came to be released on bail by an order dated 23/1/2019 passed in Criminal Misc. Application No.917 of 2019. However, within few days of his release, as he started changing his advocate for defending him, the Court had rejected his application and taken him into custody vide an order dated 1/2/2019. As recorded in that order, on his request, advocate through Legal Services Authority was provided to him for bail when he preferred an application through private advocate, his advocate appointed through Legal Services Authority withdrew his appearance. However, at the time of recording the evidence, for the purpose of cross examination of the prosecution witnesses, advocate for applicant did not remain present and therefore, his right to cross examine came to be closed. It is further recorded in the order when he prayed for an order to provide him an advocate, the same was again provided. Despite witnesses were to go back without their examination, in the interest of justice, matter was adjourn and services of advocate through Legal Aid was provided. However, on 1/2/2019 again the applicant appears to have prayed for an adjournment on the ground of engaging a private lawyer. It appears that irked the learned Judge which led rejection of application for adjournment, he was ordered to be taken into custody and till the judgment, the applicant remained in custody. As coming out from the jail remarks provided by Vadodara Central Jail, it appears that applicant is in custody for about last 4 years and 4 months.

(2.) As coming out from the order passed by this Court releasing the applicant on bail, pending trial, it appears that First Informant Report which came to be filed 2 months after the alleged incident. Drawing attention of the Court to the deposition of the victim, it is submitted that the act alleged against the applicant appears to be voluntary but since the victim was less than 15 years of age, though it is of no use, fact remains that they held from the tribal community where they have liberty to select their partners at an early age. At any rate, it is submitted that out of 10 years imprisonment, he has already undergone 4 years and 4 moths and when they appeared to be in relation, the applicant aged about 23 years by now, is required to be released on bail on suitable conditions.

(3.) As against that, Ms.C.M.Shah, learned APP submitted that since the applicant is convicted for an offence under Sec. 376 of ' IPC ' and Sec. 4 of 'POCSO' when the age of the victim is less than 15 years, even if the alleged act is committed with consent, offence can be said to have been committed and therefore, the applicant does not deserve any bail.