Allahabad High Court
Peetam @ Nanhey vs State Of U.P. And 3 Others on 9 October, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:194346 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40026 of 2023 Applicant :- Peetam @ Nanhey Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashok Kumar Singh,Pratibha Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Ashok Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.
At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon the first informant-opposite party-2 on 10.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party-2 to oppose the application for bail.
This application for bail has been filed by applicant Peetam @ Nanhey seeking his enlargement on bail in Case Crime No.31 of 2023 (SC No.481/23), under Sections 363, 366, 376 IPC, Section 3/4 Pocso Act and Section 3(2)5 SC/ST Act, police station Sungarhi, district Kasganj, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 24.04.2023, a prompt first information report dated 24.04.2023 was lodged by first informant-Saudan Singh (father of the prosecutrix) and was registered as Case Crime No.0031 of 2023, under Sections 363, 366 IPC, police station Sungarhi, district Kasganj. In the aforesaid F.I.R., one un-known person has been arraigned as an accused.
The gravamen of the allegations made in the first information report is to the effect that on 24.04.2023 at about 7.00 P.M., the daughter of first informant i.e. prosecutrix namely 'X' aged about 16 years has been enticed away by un-known person.
After aforesaid first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 28.04.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 21 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, the prosecutrix stated that she herself went to applicant out of her own sweet will. She stayed at the house of the applicant as husband and wife. Thereafter, she accompanied the applicant went to Delhi and has solemnized the marriage with the applicant in a temple on 25.04.2023. Thereafter, the prosecutrix was requested for her internal medical examination. However, the prosecutrix has refused to give her consent for the same. As per the medical opinion, the prosecutrix was said to be aged about 18 years. Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 26 of the paper book, wherein she has rejoined her previous statement recorded under Section 161 CrPC with the improvement that she has studied upto class-V and she herself went to applicant out of her own will. No allegation of any kind has been made by the prosecutrix against the present applicant. The genesis of the said statement is to the effect that the prosecutrix herself accompanied the applicant willingly.
During the course of investigation, Investigation Officer recovered the certificate issued by the Principal of the institution where the prosecutrix had studied up to Class-V. As per the said certificate, the date of birth of the prosecutrix as recorded in the school record is 24.05.2006. The occurrence giving rise to the present criminal proceeding is alleged to have occurred on 24.04.2023. As such, the prosecutrix was aged sixteen years and eleven months on the date of occurrence. Investigating Officer also examined the first informant and other witnesses under Section 161 CrPC, who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that offence under the provisions of Pocso Act is also made out against applicant. Accordingly, he submitted the charge-sheet dated 15.05.2023, whereby applicant has been charge-sheeted under Sections 363, 366, 376 IPC, Section 3/4 Pocso Act and Section 3(2)5 SC/ST Act, police station Sungarhi, district Kasganj.
Learned counsel for the applicant contends that though the applicant is not named in the FIR but a charge-sheeted accused, yet he is liable to be enlarged on bail. With reference to the statements of the prosecutrix recorded under Section 161/164 CrPC, he contends that the prosecutrix is a willing and consenting party. Neither the prosecutrix was forcibly abducted nor she was kidnapped by the applicant for the purpose of marriage or for dislodging her modesty. The prosecutrix in his statements referred to above has stated that she accompanied the applicant herself and has thereafter solemnized marriage with the applicant. It is on account of above that the parties were in co-habitation and lived together as husband and wife. It is further submitted that physical relations were maintained with the prosecutrix by the applicant admittedly upon the consent of the prosecutrix itself. In view of above, he submits that no offence as complained of is made out against the applicant. The prosecutrix is said to be minor but below 18 years of age on the basis of certificate issued by the Principal of the concerned institution where the prosecutrix had studied up to Class-V. Referring to the provisions of Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, learned counsel for applicant contends that the date of birth of a child can be determined only in accordance with the procedure provided in the aforesaid Section and not otherwise. Since the certificate of an institution where the child had last studied is not recognized as a valid document for determining the age of the child as per the date of birth mentioned therein, therefore on the basis of the certificate of Principal/Head Master of the institution where the prosecutrix had last studied, it cannot be said that the prosecutrix was below 18 years of age on the date of occurrence. Reference is also made to the judgement of the Apex Court in P. Yuvprakash Vs. State Represented by Inspector of Police 2023 LiveLaw (SC) 538, wherein it has been held that the age of the prosecutrix cannot be determined as per the date of birth recorded in the Scholar Register/Transfer Certificate. Up to this stage, no attempt has been made by the Investigating Officer to discover the age of the prosecutrix as per the provisions contained in Section 94 of the Act, 2015. On the above premise, he contends that no offence under Section 3/4 Pocso Act is made out against the applicant. It is lastly contended that prima facie the prosecutrix is major and a willing and consenting party, therefore, no offence under Section 376 IPC can be said to have been committed by the applicant.
It is further contended by the learned counsel for applicant that no internal medical examination of the prosecutrix was conducted as the prosecutrix has refused to give consent for the same. However, upon external examination, no injury was found upon the body of the prosecutrix so as to denote commission of deliberate or forcible sexual assault upon her. It is an undisputed fact that the prosecutrix has solemnized marriage with the applicant. Though the prosecutrix was below 18 years of age on the date of her marriage with the applicant yet the marriage of the prosecutrix with the applicant shall not be void but voidable at the instance of the prosecutrix alone by virtue of the provisions contained in Section 11(2) of the Hindu Marriage Act, 1955. However, up to this stage, nothing has emerged on record to show that the prosecutrix has initiated any proceeding for declaration of her marriage with the applicant as void. Consequently, the criminality, if any, alleged against the applicant stands washed out on account of aforesaid fact.
It is further contended that though applicant has criminal history of three cases but in one case he has been enlarged on bail by this Court and in other two cases he has been acquitted by the court below. The same has been sufficiently explained in paragraphs 16 and 17 of the affidavit filed in support of the bail application. As the criminal history of the applicant has been sufficiently explained and even otherwise it does not relate to heinous offence, the rigours of law laid down by the Apex Court in the case of Neeru Yadav Vs. State of U.P. and another 2014 (16) SCC 508 are not attracted in the present case. The applicant is in jail since 28.04.2023. As such, he has undergone more than five months of incarceration. Attention of the Court was also invited to the judgement of the Apex Court in the case of Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another, 2023 Livelaw SC 373 (Paragraph 5) and on basis thereof, he submits that since the charge-sheet has been submitted against the applicant, therefore the entire evidence sought to be relied upon by prosecution against applicant stands crystalized yet the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial. It is thus contended by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. for State has vehemently opposed the prayer for bail. He submits that though the applicant is not named in the FIR but a charge-sheeted accused therefore, he does not deserve any indulgence by this court. He further submits that since admittedly the prosecutrix is below 18 years of age therefore her consent, if any, is immaterial. As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for the applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, coupled with the fact that though the prosecutirx is below 18 years of age, the applicant is not named but a charge-sheeted accused yet the Court finds that the prosecutrix in her statements referred to above has not supported the F.I.R., the parties appeared to be in acquaintance with each other for a long time, the prosecutrix in her statement under Section 161 CrPC has categorically stated that she has solemnized marriage with the applicant, in view of above no criminality as alleged in the charge-sheet can be said to have been committed by the applicant, though the prosecutrix was below 18 years of age on the date of marriage but simply on that account the marriage of the prosecutrix with the applicant shall not be void but voidable at the instance of the prosecutrix alone by virtue of the provisions contained in Section 11(2) of the Hindu Marriage Act, 1955, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the prosecutrix has herself refused for her internal medical examination, therefore the medical evidence does not support the charge-sheet so submitted against the applicant, the police report under Section 173 (2) CrPC has already been submitted, therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet in spite of above the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of the applicant during the pendency of trial, the criminal history of the applicant has been sufficiently explained, the criminality committed by the applicant does not relate to henious offence therefore the rigours laid down by the Apex Court in the case of Neeru Yadav Vs. State of U.P. and another 2014 (16) SCC 508 are not attracted in the present case, the period of incarceration undergone, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but, without making any comments on the merit of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Peetam @ Nanhey, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 9.10.2023.
Rks.