LAWS(GJH)-2013-11-15

STATE OF GUJARAT Vs. SUKHDEVBHAI BHIKHABHAI CHENVA

Decided On November 18, 2013
STATE OF GUJARAT Appellant
V/S
Sukhdevbhai Bhikhabhai Chenva Respondents

JUDGEMENT

(1.) STATE being prosecuting agency has challenged the legality and validity of impugned judgment and order dated 21.12.2012 by 4th Additional Sessions Judge, Himmatnagar in Criminal Misc. Application No.956 of 2012, whereby respondent is released on bail with reference to I ­ C.R. No. 76 of 2012 registered for the offences punishable under Sections 363, 366 and 376 of the IPC. The FIR was lodged by father of the victim on 11.10.2012 stating that his daughter had been kidnapped by the respondent on 30.09.2012 and that though she is aged about 15 years only and though respondent is a married man he has abducted her with false promise of marriage. Based upon such complaint investigating agency has initiated investigation and in turn arrested respondent because prima facie evidence found against the respondent. Therefore, respondent has filed an application for bail before the Sessions Court under Section 439 of the Code of Criminal Procedure contending that he is innocent and he had not committed any offence. It is also contended that complaint is filed after 11 days because in fact he has never kidnapped the victim but practically it was victim who has called upon him and that he has not committed any offence or illegal active without consent or desire of the victim. It is specifically contended that he has never abducted the victim from the custody of the complainant.

(2.) BASED upon the police record and submission by both the sides, the Sessions Court has came to the conclusion that respondent is entitled to bail and hence by impugned order, bail was granted.

(3.) AS against that learned advocate Mr.Ashish Dagli for the respondent has submitted that there was no complaint or cause of complaint from 30.09.2012 till 11.10.2012. It is further stated that they had stay together at different places during 11 days when victim has never complained and practically they have got married during this period. So far as age of the victim is concerned, it is submitted that there are in 3 different version / evidences and thereby such evidence cannot be believed for considering age of the victim. Thereby it is submitted that unless there is positive proof regarding age of the victim, it cannot be presumed that she was minor at the time of incident. It is also submitted that now charge - sheet is filed and witnesses are called upon to adduce evidence. It is also submitted that after arrest, respondent was subjected to remand by the police and all material evidence has been collected and now no further evidence is to be gathered or collected and hence, there is no reason to detain the respondent pending trial, which may take its own time. 4. In addition to factual details, learned advocate Mr.Dagli has relied upon following decisions of the Apex Court; (1) (2004) 11 SCC 165 between Samarendra Nath Bhattacharjee vs. State of West Bengal & Anr. (2) (2009) 11 SCC 392 between Ashok Kumar vs. State of Uttar Pradesh & Anr. (3) (2004) 13 SCC 617 between Ramcharan vs. State of Madhya Pradesh