The main legal point established is the need for sound reasoning and consideration of relevant factors in granting bail, especially in cases involving serious offences and statutory presumptions of guilt.

JUDGMENT :

By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner State has prayed to quash and set aside the order dated 23.05.2022 passed by the learned 2nd Additional Sessions Judge, Bharuch – Ankleshwar in Criminal Misc. Application No.324 of 2022, whereby the learned Session Judge has granted regular bail granted to the respondent – original accused in connection with offence punishable under Sections 376(3), 323, 337, 504, 506(2), 114 of Indian Penal Code as well as under Sections 4, 6 and 12 of the POCSO Act and Sections 3(1)(r)(s), 3(2)5, 3(2)(5-A), 3(1)W(1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989 registered vide Cr. 11199005220171 of 2022 before Netrang Police Station.

2. The short facts of the case are that on the date of incident while the victim after taking dinner had gone out, at that time, she received a message in her mobile phone from the accused no.1–respondent no.1 asking her to come at the terrace of one Mr.Kishorbhai Mahraj threatening her that in failure of her coming, he will cut his hand and therefore victim having scarred went to terrace; where accused – respondent no.1 caught hold of her hand forcibly and slept her on the terrace and by one hand pressed her mouth and after removing clothes committed rape. It is also alleged in the FIR that in the meantime father of the victim came on the terrace searching her. Accused no.1 ran away to his terrace while org. accused nos.2 and 3 caught hold of the first informant while he was chasing org. accused no.1 and caused injury on back side of head with brick, as also gave kick and fist blows and in furtherance by uttering derogatory words of his caste committed the offence.

2.1 As stated supra, FIR came to be registered against accused regarding the incident.

2.2 After registration of offence, the accused arrested and preferred the regular bail application which came to be granted as per order passed in paragraph 1of this judgment.

3. Heard Mr.H K Patel, learned APP for the petitioner and Mr.M M Saiyed, learned Advocate for org. accused No.1- respondent no.1. Respondent no.2 though served did not remain present to contest the petition.

4. Learned APP assailing the impugned order would submit that the learned Court below has examined wholly irrelevant consideration while granting bail to the accused. He would further submit that the allegations of heinous crime punishable under the POCSO Act is levelled against the accused where the victim is aged 14 years. He would further submit that even if she was consensual in sexual relationship with the accused, her consent cannot be recorded and cannot be made basis for granting bail. He would further submit that learned Court below has committed serious error in recording that, though age of the victim being 14 years; she had given consent for physical relationship with the accused and reasoned its order on such finding. He would further submit that learned Court below has granted bail on untenable grounds and on concept foreign to the grant or refusal of regular bail in a serious offence punishable under Sections 4, 6 and 12 of the POCSO Act read with Section 376 of the IPC amongst other offences.

4.1 Learned APP would further submit that learned Court below not only erred in recording the false and untenable reasons in granting bail; but has erroneously taken shelter of order delivered by co-ordinate Bench this Court in case of Arvindbhai Setabhai Kumarkhaniya V/s. State of Gujarat in Criminal Misc. Application No.27444/2017, as in that case the victim was 17 years and the accused was 21 years and both of them were in love relationship; victim eloped with the accused and lived at various places. These factors were found to be mitigating factors for granting bail in that case. He would further submit that facts of the present case are totally different wherein the victim was aged 14 years and accused is aged 31 years. He would