Allahabad High Court
Devlal Nishad vs State Of U.P. And 3 Others on 19 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:182639 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40730 of 2023 Applicant :- Devlal Nishad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sushma Yadav,Hirdesh Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Shri Hirdesh Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. At the very outset, the learned A.G.A. submits that notice of present application of bail has been served upon first informant opposite party 2. However, in spite of service of notice, no one has put in appearance on behalf of first informant opposite party 2 to appose the present application for bail.
4. This application for bail has been filed by the applicant Devlal Nishad seeking his enlargement on bail in Case Crime No. 280 of 2022, under Sections 363, 366, 376 I.P.C. and 5/6 POCSO Act and 3(2)(v) SC/ST Act, Police Station Sevrathi, District Kushinagar, during the pendency of the trial.
5. Learned counsel for applicant contends that the prosecutrix has solemnized marriage with the applicant after 19.09.2022 i.e. the date of occurrence mentioned in the F.I.R. On account of above the prosecutrix and the applicant were in cohabitation as husband and wife. On account of the cohabitation of the applicant and the prosecutrix, a girl child was born. On the above premise, it is thus contended by the learned counsel for the applicant that no criminality as complained of can be said to be in existence. According to the learned counsel for applicant even if the prosecutrix was below 18 years of age on the date of marriage, her marriage with the applicant shall not be void but voidable at the instance of the prosecutrix by virtue of provisions contained in Section 11(2) of the Hindu Marriage Act. There is nothing on record to show that the prosecutrix has vitiated her marriage for declaration of her marriage with the applicant as void. Apart from above the age of the prosecutrix has been sought to be determine as per the date of birth of the prosecutrix as mentioned in the certificate issued by the Principal of the Institution (Annexure 8 to the affidavit). The said documents is not liable to be considered as per the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Even otherwise applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 14.04.2023. As such he has undergone more than five months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against the applicant stands crystallized. However up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during pendency of trial. It is thus urged 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 cooperate with the trial.
6. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this court. However he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
7. Havingheard the learned counsel for applicant, the learned A.G.A. for State, and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that the prosecutrix has solemnized marriage with the applicant, from the said wedlock, a girl child has been born, the applicant and the prosecutrix were living together a happy married life, as such in view of above, no criminality can be said to have been in existence, the clean antecedents of the applicant, the period of incarceration undergone, but without making any comments on the merits of the case the applicant has made out a case for bail.
8. Accordingly, the bail application is allowed.
9. Let the applicant Devlal Nishad involved in aforesaid case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
i. The applicant will not tamper with the evidence during the trial.
ii. The applicant will not pressurize/ intimidate the prosecution witness.
iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
ix. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
x. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
10. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 19.9.2023 Aiman