High Court · 2024
Legal Reasoning
(1) ba-828-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.828 OF 2024Kailas Baburao Ghandge,Age: 34 years, Occu. Agriculture,R/o. Adarash Nagar, Pathri,Taluka Pathri, District Parbhani...ApplicantVersus1.The State of Maharashtra,through Police Station Officer, Pathri Police Station, Pathri,District Parbhani.2.XYZ(Separate Envelop is given)..Respondents …Mr. S. S. Rathi, Advocate for the Applicant.Mr. A. S. Shinde, APP for Respondents-State.Mr. R. J. Nirmal, Advocate for Respondent No.2. … CORAM : S. G. CHAPALGAONKAR, J. RESERVED ON: 28th JUNE 2024.PRONOUNCED ON: 03rd JULY 2024.ORDER:-1.The applicant seeks regular bail in connection with CrimeNo.96/2023 registered with Pathri Police Station, Dist. Parbhanifor the offences punishable under Sections 376(3), 377, 420, 465,468, 470, 471 of the Indian Penal Code and Section 3, 4 & 17 of theProtection of Children from Sexual Offences Act, 2012 andSections 9, 10 & 11 of the Prohibition of Child Marriage Act.2.This is a successive Bail Application. Previously theapplicant had approached this Court seeking regular bail vide BailApplication No.1501/2023. However, application was withdrawn
Legal Reasoning
(2) ba-828-2024.odtwith liberty to move afresh after six months, if trial is notprogressed. 3.Mr. Rathi, learned Advocate appearing for the applicantsubmits that the applicant has been arrested on 14.03.2023. Theperiod of about 16 months is passed since the date of arrest. Thetrial is at nascent stage. Although charge is framed, theInvestigating Officer failed to produce muddemal for last 4 to 5months. There is no possibility that trial would conclude in recentfuture. Indefinite incarceration of accused would not bepermissible since it violates rights of speedy trial guaranteedunder Article 21 of the Constitution of India. He would submitthat although charge-sheet is filed against in all 13 accusedpersons, applicant is only accused behind the bar. Mr. Rathiwould further invite attention of this Court to the statement ofparents of the victim to contend that no force was exerted by theapplicant and with active participation of parents, applicant’smarriage was performed with the victim. He invites attention ofthis Court to the copy of Aadhar Card depicting victim’s date ofbirth as 22.08.2003. He would further invite attention of thisCourt to the birth certificate issued by Village Panchayatcertifying victim to be born on 22.08.2003. He would, therefore,submit victim was major as on the date of marriage. Falseallegations are made regarding manipulation of the documentspertaining the age. Mr. Rathi would further submit that theapplicant has no role in alleged manipulation of the documents.All such documents were prepared much before marriage andparents of the victim themselves got corrected Aadhar Card.Consequently, the applicant married with victim believing thatshe attended age of marriage. No fault can be found in theconduct of the applicant. Hence, he urges to release the applicanton bail. (3) ba-828-2024.odt4.Per contra, Mr. Shinde, learned APP and Mr. Nirmal,learned Advocate appearing for respondent no.2-victimvehemently opposes Bail Application contending that the victimwas aged about 13 years and 6 months at the time of marriage.The applicant in connivance with other accused personsmanipulated false documents, firstly the correction is carried inthe original Aadhar Card based on false certificate of age. Theyinvite attention of this Court to the statement of Mr. Tausif KhanSardar Khan Pathan, who has updated Aadhar Card on the basisof birth certificate issued by the Village Panchayat produced bythe parents of the victim. The attention of this Court is alsoinvited to the statement of the victim recorded under Sections 161and 164 of the Criminal Procedure Code, wherein she has statedabout her correct age and also forcible sexual intercourse andunnatural act exerted against her by the applicant.5.Having considered submissions advanced, it can be observedthat Mrs. Rupali Rangari, Child Development Project Officer,Parbhani cum Child Marriage Prohibition Officer, on informationreceived from Child Welfare Committee, Parbhani lodged FIRalleging that victim girl aged about 13 years and 6 months wasmarried on 02.12.2022 with the applicant who is aged about 40years and presently victim is residing with her parents. Afterenquiring into information, she confirmed that it is a case of childmarriage, performed by accused persons, in connivance with eachother and also a case of manipulation of record as regards tovictim’s age. Consequently, FIR in Crime No.96/2023 wasregistered with Pathri Police Station, Parbhani for offencepunishable under Prohibition of Child Marriage Act, 2006, theProtection Of Children from Sexual Offences Act, 2012 and IndianPenal Code. (4) ba-828-2024.odt6.After due investigation, charge-sheet has been filed againstthe applicant and 13 others. During the course of investigation,the statement of victim is recorded under Section 161, wherein shecategorically states about her age as 13 years as on the date ofmarriage i.e. 02.12.2022. The statement discloses that certainamount was exchanged towards dowry and gifts. The middlewoman Laxmibai was paid amount of Rs.10,000/- by the applicant.During the stay of the victim with the applicant, she was subjectedto forcible sexual intercourse and unnatural act. The contents ofthe FIR depicts that minor victim was subjected to marriage inwell planned manner. To conceal her age, a false birth certificatewas procured and Aadhaar Card was updated using suchdocuments to make a show that she attained age of marriage.However, the school admission record of the victim at GyanabaMore Prathamik Vidyalaya stipulates her birth date as22.08.2009. Accordingly, victim’s age at the time of marriage wasless than 14 years. The victim is consistent in her statementsrecorded u/s 161 and 164 regards to the manner in which hermarriage was performed and sexual victimization after marriage.In fact, this appears to be a serious case of child marriage, therape and offences under POCSO. The applicant, who is middleaged man of almost 34 years, capitalized on poverty of the victim’sparents and subjected her to inhuman sexual abuse. It is true thatthe medical examination report for sexual assault do not showmuch injuries on the private parts of the victim, but it would beirrelevant, as victim was residing with her parents for more thanthree months prior to her medical examination. 7.Consequently, no case is made for grant of regular bail.However, it would be in the fitness of things to direct the learnedSessions Judge/Special Court to expedite the trial and endeavour (5) ba-828-2024.odtto conclude same within a period of nine (09) months from the dateof this order. 8.It is made clear that the observations herein above are basedon prima facie consideration of the material in charge-sheet, onlyfor disposal of this application and shall not influence Trial Court.9.In view of the aforesaid observations, Bail Applicationstands rejected. (S. G. CHAPALGAONKAR)JUDGEDevendra/July-2024