The court emphasized that bail is a rule and pre-trial detention should not equate to a conviction, considering the applicant's age, lack of prior offences, and the nature of allegations.

ORDER :

Though served, respondent No.2 has chosen not to appear before this Court.

1. RULE. Learned APP waives service of rule for the respondent-State.

2. The present successive application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) for regular bail in connection with FIR being C.R. No.11822021241534 of 2024 registered with Navsari Rural Police Station, District Navsari for the offences punishable under Sections 376(2)(N), 376(2)(J) of the Indian Penal Code, 1860 (for short “IPC”) and sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”).

3. Learned advocate appearing on behalf of the applicant submits that applicant is aged only 25 years and has been falsely enroped in the offence. The charge-sheet is filed and now nothing is required to be recovered or discovered. The applicant was in consensual relationship with the victim since long and even in the FIR age of victim at the time of offence is stated to be 18 years and more and therefore, provisions of the POCSO Act have been wrongly invoked. He therefore submits that, considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

4. Learned APP appearing on behalf of the respondent-State has opposed the present application and requested to dismiss the present application for regular bail on the ground that applicant is involved in serious offence against woman and at the relevant point of time the applicant under the pretext of marrying with the victim developed physical relations with the victim and thereafter did not marry her. Further, at the time of offence was minor and therefore, consent is immaterial. Even otherwise, dispute qua the age of victim is subject matter of trial and if the applicant is granted regular bail then the possibility of tampering with the evidence cannot be ruled out. Therefore, he has requested to dismiss the present application.

5. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.

6. I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. Following aspects have been considered:

(1) Investigation is over and charge-sheet is filed;

(2) None of the offence alleged is punishable with life sentence or death penalty;

(3) Applicant is behind the bars since 19.09.2024;

(4) Allegation is that the applicant under the pretext of marrying the victim developed physical relationship with the victim however, the victim was major at the time of commission of alleged offence;

(5) The age of victim at the time of offence as stated in the complaint is 18 years and subsequently it is stated that he was minor;

(6) There is nothing to be recovered or discovered from the applicant;

(7) The applicant is not having any past antecedent;

(8) Obviously commencement and conclusion of trial will take some time.

7. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012] 1 SCC 40 as