Anticipatory bail can be granted when allegations against the applicant are not directly linked to the commission of serious offences, provided conditions are imposed to ensure cooperation with the investigation.

ORDER :

1. RULE. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 – State of Gujarat and learned advocate Mr. Vatsal D. Ruparel waives service of notice of Rule for and on behalf of respondent No.2.

2. 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.11203038240442 of 2024 registered with Mangrole Police Station, District Junagadh for the offences punishable under Sections 376(3), 376(2)(N), 323, 506(2) and 114 of the Indian Penal Code, 1860 and sections 5(l), 8 and 12 of the Protection of Children from Sexual Offences Act (for short “POCSO Act”).

3. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and has been arraigned only because the applicant happens to be the uncle of accused No.1 and the allegation of rape and under the POCSO Act are against accused No.1. Further, the FIR is filed belatedly after a delay of six months as a counter blast to the complaint filed by the applicant’s side against the family members of the victim. There is no any form of sexually aggravated penetrative assault committed by the present applicant punishable either under the POCSO Act or under the IPC. The only role attributed to the present applicant in the second part of FIR is that the applicant administered threat to the victim to close her way to school if she do not remain silent about the sexual assault done by accused No.1. 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.

4. Learned Additional Public Prosecutor appearing on behalf of the respondent No.1 – State and learned advocate Mr. Ruparel for respondent No.2 – original complainant have opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that present applicant is involved in the offence and has abetted the offence and is also having past antecedents. Herein, victim is a minor girl against whom accused No.1 committed the offence of rape and under the POCSO Act and the applicant abetted in the commission of offence and if applicant is protected then the investigation will be hampered and possibility of tampering with evidence cannot be ruled out. Merely because complaint prior in point of time was filed by the applicant’s side against the family members of the victim is not a ground to allow the present application. Further, as the applicant had threatened the victim, the present FIR is filed belatedly after a delay of six months and once again the accused has started loitering before the house of the victim. Hence, as custodial interrogation of the applicant is required, he has 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) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension