XYZ Vs. POPAT

JUDGEMENT

(1.) Present application has been filed by the original informant, who is the mother of the victim, under Sec. 439(2) of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C. ") to challenge the order of grant of bail to respondent no. 1 in Criminal Miscellaneous Application No. 1884 of 2021 passed by learned Additional Sessions Judge, Ahmednagar, on 14/12/2021, thereby granting the anticipatory bail under Sec. 438 of the Cr.P.C.

(2.) Heard Mr. Sawant holding for Mr. H. T. Gaikwad, learned Advocate for the applicant, Mr. Hange, learned Advocate for respondent no.1 and Mrs. Vaishali Patil Jadhav, learned A.P.P. for respondent no. 2 - State.

(3.) As aforesaid the First Information Report (FIR) was lodged by mother of the victim, the victim was then aged 10 years on the date of the FIR. The FIR vide C.R.No. 892 of 2021 has been lodged in the Pathardi Police Station on 19/11/2021 for the offences punishable under Sec. 354 of the Indian Penal Code and Ss. 12, 7, 8 of the Protection of Children from Sexual Offences Act, 2021. It is in respect of the incident alleged to have taken place on 16/11/2021 at about 2.00 p.m. It has been alleged that the informant alongwith the victim were in their field. The informant was giving water to the onion crop in the field. She asked the victim to see where the she-goat belonging to them has gone. While searching, the victim went towards the field of respondent no.1. The victim returned after about 15 to 20 minutes and behind her, one Ganesh Dilip Gavane and Ashok Ajinath Kardie, cousine brother-in-law of the informant came. Ganesh Gavhane told the informant that when he was standing nearby the field of Shivnath Funde, by getting down from his tractor, he found respondent no. 1 was trying to do obscene act with the victim. The victim had also told as to what happened with her to the informant and then the offence has been lodged about the said act by the informant. It is tried to be stated that the husband of the informant had gone out of village and had returned only on 19/11/2021, therefore, there is delay in lodging the FIR. Whether the said delay is fatal to the prosecution case or not would be decided by the trial Court. However, when respondent no.1 had filed application under Sec. 438 of the Cr.P.C., after taking note of the contents of the FIR, it was observed by the learned Special Judge that there is enmity between the two families i.e. informant 's family and family of the accused and then taking into consideration the nature of the allegations, delay in lodging the FIR, contradictory statements and the say of Investigating Officer, custodial interrogation is not necessary, therefore, application came to be granted.