1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 240 OF 2004 Rohit @ Madhu Gorkha S/o Nanda Bahadur Gorkha, Age 19 years, r/o H. No.296, IVth Ward, Colva, Salcete – Goa. ... Applicant versus State (Through P.I. attached to Colva Police Station) Colva – Goa. ... Respondent Mr. Menino Teles, Advocate for the Applicant. Mr. S. N. Sardessai, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J, DATE : 17TH DECEMBER, 2004. ORAL ORDER The applicant herein is the first accused in Sessions Case No.13 of 2004 wherein he is being prosecuted under Section 376 I.P.C. and under Sections 8, 10(b)(d) and 12 of the Goa Children's Act, 2003. 2 2. The allegation against the said accused is that from 16-8-2004 to 21-8-2004, the accused had forcible sexual intercourse with the victim girl, aged about 13 years. The second accused who is said to have assisted the first accused to arrange for a room and the third accused who is said to have provided the said room at Vinsons Cottage, Colva, have been admitted to bail by the learned Sessions Judge. 3. However, the applications for bail of the first accused came to be rejected, first on 3-9-2004 and then again on 13-10-2004. The said accused having filed yet another bail application on 22-11-2004, the same was again dismissed by Order dated 24-11-2004 of the learned Sessions Judge, Margao. 4. The said accused, therefore, is now before this Court seeking bail. 5. There is no doubt that grant or refusal of bail is always a matter of discretion with the Courts. In exercising the said discretion the Courts are called upon to consider several factors. The foremost being the seriousness of the offence. 6. The learned Sessions Judge has denied bail to the accused because the accused has been charged with offences which are serious in nature. However, a perusal of the statement recorded of 3 the victim and the certificate of medical examination of the said victim would show that the offence with which the accused is charged is not so serious as it is sought to be made out. Sometimes, in matters of bail, least said is better. Admittedly, the victim whose father has abandoned the family and whose mother is serving abroad left the custody of her grandmother and went astray for the said period of about five days. After the said grandmother lodged a missing report and after the return of the victim home she went to report the matter to the Police about the arrival of the said victim and at this time that due to the intervention of an N.G.O. known as “Bailancho Ekvott” that an FIR came to be lodged. 7. The availability of the accused for trial is certainly one of the considerations which is required to be weighed at the time of granting of bail. This fact was rightly borne in by the learned Sessions Judge. However, the learned Sessions Judge placed undue emphasis on the fact that the accused did not own any properties in Goa. Admittedly, the accused is about 19 years of age and was born and has been brought up in Goa. The father of the accused works on permanent basis at Goa Tourism Development Corporation for the last about 20 years and this fact was totally lost sight of by the learned Sessions Judge. The accused being only about 19 years of age could not normally be expected to have owned any properties although it was stated on behalf of the accused that after leaving school he worked here and there for some time. 4 8. The learned Sessions Judge appears to have accepted the allegation of the prosecution that in case the accused was admitted to bail he was likely to interfere with the witnesses without any material for such apprehension being placed before the learned Sessions Judge. 9. On this aspect, Mr. Menino Teles, learned Counsel for the applicant has placed reliance on the case of Menino Lopes v. State of Goa (II(1995) CCR 795) wherein a Division Bench of this Court, after having referred to a decision of a Division Bench of the Calcutta High Court reported in AIR 1949 Calcutta 582 observed with approval that it was common knowledge that in every bail case the police allege that there is a danger of tampering with witnesses, and if witnesses can be tampered with in this way, it does not speak very highly of the efficiency of the police”. These observations, in my humble opinion, might have been relevant at the times when they were made and could not be taken as relevant at all times including the times we are living in. However, I must hasten to add that as far as the apprehension of the prosecution that the accused will tamper with the witnesses, as far as the facts of this case are concerned, appears to be more imaginary than real. Admittedly, after the alleged commission of offences, the victim is presently detained in Apnagar/Children's Home and the chances that the accused will tamper with her are extremely remote. 5 10. It is well settled by a catena of decisions of the Supreme Court that power to grant bail is not to be exercised as if imposing punishment before trial. The Court was also required to take note of the age of the accused who was only about 19 years of age and his continued incarceration in jail might have been more harmful to him than beneficial to anyone or for that matter to the Society at large. The accused has been in custody from 22-8-2004. 11. Considering the overall facts and circumstances of the case, in my view, the accused was entitled to and now deserves to be admitted to bail. The application, therefore, is hereby granted. The accused shall be released on bail upon execution of a Bond of Rs.15,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge, Margao, and with a further condition that the accused shall not directly or indirectly interfere with the prosecution witnesses, including the said victim. N. A. BRITTO, J. RD.