GABHABHAI SUJABHAI SANGAAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

(2.) The present application is filed under Sec. 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-34 of 2019 registered with the Mandvi Police Station, Kachchh West-Bhuj of the offence punishable under Ss. 376(1), 495 and 506(2) of the IPC and Ss. 3(a), 4, 5(1), 6 and 10 of the POCSO Act.

(3.) Learned advocate Mr. Ashish Dagli assisted by learned advocate Mr. Mihir Vakhariya appearing for the applicant has submitted that the applicant-accused was arrested on 18/8/2023 and since then he is in jail. Learned advocate Mr. Dagli has also submitted that the investigation has already been completed and charge-sheet has also been filed. Learned advocate Mr. Dagli has also submitted that this is a second round of litigation and the present matter has some checkered history. Earlier, the applicant-accused had already been enlarged on anticipatory bail as the matter was amicably settled between the parties pursuant to which a consent quashing petition was also filed before this Court wherein the complainant has tendered an affidavit specifically stating that the matter is now settled between herself and the applicant- accused and the applicant-accused has already taken customary divorce from his previous wife and as per the prevailing customs and rituals in the community, the said customary divorce is acceptable one and she has no grievance so far as that aspect is concerned. It is also submitted that thereafter again some disputes cropped up between the applicant-accused and the victim girl pursuant to which the complainant filed another complaint being C.R. No.11205031200912 of 2020 under Ss. 507, 506(2) and 114 of the IPC against the applicant-accused and simultaneously also preferred an application for cancellation of anticipatory bail before the court below which came to be rejected by the trial court. Being aggrieved, the complainant approached this Court by filing an application for cancellation of bail and a Coordinate Bench of this Court, after giving full opportunity of hearing to all the parties, allowed the said application cancelling the anticipatory bail granted to the applicant-accused on the ground of registration of the subsequent complaint, as referred to above, as also on the ground of having past antecedents against the applicant- accused. Pursuant to cancellation of the said anticipatory bail application, the applicant-accused was taken into custody and since then he is in jail. However, it is pertinent to note that in the subsequently FIR also, as referred to herein above, the applicant-accused has been acquitted by the trial court. It is further submitted that, in fact, the stage of recording of deposition of the victim-girl has already been completed and the trial is at its fag end. It is moreso submitted that the incident in question took place during the period between 25/5/2018 and 1/7/2019 for which the first information report came to be registered on 1/7/2019 which indicates that there is a gross delay in registering the first information report. Learned advocate Mr. Dagli has also submitted that, in fact, there were in all nine offences registered against the applicant-accused out of which in eight offences the applicant- accused has already been acquitted. Only one matter is pending before the competent court for its adjudication. It is also submitted that it is the duty upon the incumbent Investigating Officer to bring on record the true and correct facts at the time of filing an affidavit before any court of law. Here in the present case, the prosecuting agency has come with a specific case that number of cases are pending against the applicant-accused, however, in fact, the applicant-accused has already been acquitted almost in all cases. In this regard, learned advocate Mr. Dagli relies upon the observations made a Coordinate Bench of this Court in the case of Altaf @ Altaf Basi S/o Jabbar Khan Sardar Khan Pathan, Criminal Misc. Application No.30392 of 2017, decided on 23/3/2018, more particularly the observations made in Paragraphs-15 and 16, which read thus;