Anticipatory bail granted where the applicant is not named in the FIR, lacks prior convictions, and no need for custodial interrogation is established.

ORDER :

RULE. Learned APP and learned advocate for the original complainant waive service of notice of Rule for and on behalf of the respondent Nos.1 and 2 respectively.

1. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11210025243787 of 2024 registered with Limbayat Police Station, District Surat for the offences punishable under Sections 376, 376(2)(N), 376(2)(J), 376(3), 342, 323, 114 and 506(2) of the Indian Penal Code, 1860 and sections 3(a), 4, 5(l) and 6 of the Protection of Children from Sexual Offences Act (for short “POCSO Act”).

2. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and he is not named in the FIR. Whatever allegation of sexual assault made by the complainant is against accused No.1, who happens to be the nephew of the present applicant and as marriage of accused No.1 and victim was not solemnized and not accepted by the present applicant being uncle of accused No.1, present applicant is implicated in the offence. The allegation against the present applicant is that he sexually harassed the victim and except this no any allegation. Further, the applicant is not having any past antecedent. Hence, now nothing remains to be recovered or discovered from the present applicant and therefore, custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

3. Considered the objections raised by the learned advocate for respondent No.2.

4. Learned Additional Public Prosecutor appearing on behalf of the respondent – State as well as learned advocate for the complainant in his written objection have opposed grant of anticipatory bail on the ground that applicant is on run and serious allegations of sexual harassment are leveled against the applicant that applicant taking undue advantage of minor has abetted the offence to accused No.1 and hence, as custodial interrogation of the applicant is required, they have requested to dismiss the present application.

5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.

(1) Applicant is not named in the FIR;

(2) Applicant is involved only because he is uncle of accused No.1 and had opposed marriage of accused No.1 with the victim;

(3) Applicant is not having any past antecedent;

(4) The only allegation against applicant is that he sexually harassed the victim however, the allegation of penetrative sexual assault is against accused No.1 and not the present applicant;

(5) No case for custodial interrogation is made out;

(6) Nothing is required to be recovered or discovered from the applicant;

6. Considering the aforesaid aspects and the law laid down by the Hon’ble Apex Court