Allahabad High Court
Ravi vs State Of U.P. And 3 Others on 11 October, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:196256 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35393 of 2023 Applicant :- Ravi Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajendra Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajendra Kumar Tripathi, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. Instant application for bail has been filed by applicant-Deepak seeking his enlargement on bail in Case Crime No. 49 of 2023 under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Patwai, District-Rampur, during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-4. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-4 to oppose the present application for bail.
5.Present application came up for orders on 06.09.2023 and this Court passed the following order:
"1. Heard Mr. Rajendra Kumar Tripathi, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. Instant bail application has been filed by applicant-Ravi seeking his enlargement on bail in Case Crime No. 49 of 2023 under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, Police Station-Patwai, District-Rampur during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-4. However, inspite of service of notice, no one has put in appearance on behalf of first informant/opposite party-4 to oppose this application.
5. Record shows that applicant has been charge-sheeted under Section 3/4 POCSO Act on the basis of date of birth of the prosecutirx recorded in School Living Certificate. By virtue of the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 as well as the judgement of Apex Court in P. Yuva Prakash Vs. State 2023 SC OnLine SC 846, the said document cannot be relied upon to conclude the age of the prosecutrix as per the date of birth of the prosecutrix recorded therein.
6. In view of above, the Chief Judicial Magistrate, Rampur is directed to conduct ossification/radiological test of the prosecutrix for determining her age. The said exercise shall be completed before the next date fixed in the matter. The age determination report shall be submitted to this Court before the next date fixed.
7. In view of the fact that police report in terms of Section 173 (2) Cr.P.C. has been submitted on 28.05.2023, the Investigating Officer is directed to submit an application before court concerned in terms of Section 173 (8) Cr.P.C. and after obtaining permission of the court, shall conduct further investigation to find out the date of birth of the prosecutrix recorded in the institution which was first attended by her. Copy of supplementary case diary shall also be transmitted to this Court through the learned A.G.A. before the next date fixed.
8. Matter shall accordingly reappear as fresh on 27.09.2023.
Order Date :- 6.9.2023 "
6. Pursuant to above order dated 06.09.2023, the Medical Determination of age report of the prosecutrix has been sent by the Chief Medical Officer, Rampur to this Court by FAX.
7. Record shows that in respect of an incident, which is alleged to have occurred on 08.05.2023 a delayed F.I.R. dated 09.05.2023 was lodged by first informant Guddu Goswami (father of the prosecutrix) and was registered as Case Crime No. 49 of 2023 under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Patwai, District-Rampur. In the aforesaid F.I.R. applicant-Ravi has been nominated as solitary named accused whereas an unknown person has also been arraigned as an accused.
8. The gravamen of the allegations made in the F.I.R is to the effect that the named accused Deepak (applicant herein) enticed away the minor grand daughter of first informant namely X, who is aged about 17 years.
9. After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 15.05.2023. Thereafter, statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 20 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.IR. To the contrary, the prosecutrix has stated that she herself went to applicant and willingly accompanied applicant. She has further stated that she subsequently solemnized marriage with applicant. The parties were in cohabitation as husband and wife. Subsequently, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the doctor, who medically examined her, has rejoined her previous statement recorded under Section 161 Cr.P.C. The Doctor, who medically examined the prosecutrix did not find any injury on her body so as to denote commission of deliberate and forceful penetrative sexual assault upon the prosecutrix. However, with regard to private part of the prosecutrix the Doctor has opined as follows:
Hymen-Absent
10.Certain samples were taken from the body of the prosecutrix for pathological examination. However, copy of the supplementary medico legal report has not been brought on record. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 22 of the paper book wherein the prosecutrix has rejoined her earlier statement under Section 161 Cr.P.C.
11. During course of investigation, Investigating officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantially supported the F.IR. Investigating Officer also recovered School Living Certificate of the prosecutrix wherein her date of birth is mentioned as 02.02.2006. Occurrence giving rise to present criminal proceedings occurred on 08.05.2023. As such, prosecutrix was aged about 17 year and 2 months on the date of occurrence. As such, Investigating Officer concluded that provisions of POCSO Act are also attracted. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. Accordingly, Investigating Officer, submitted the charge sheet dated 28.05.2023 whereby applicant has been charge sheeted under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act.
12. Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. Referring to the statements of the prosecutrix as recorded under section 161Cr.P.C., the statement before Doctor and the statement under Section 164 Cr.P.C. he contends that prosecutrix has remained consistent and categorical. She is a willing and consenting party. Moreover, the prosecutrix herself went to the applicant and thereafter accompanied applicant. He therefore submits that in view of the aforesaid categorical statement of the prosecutrix, it cannot be said that applicant has abducted or kidnapped the prosecutrix. As such, no offence under Section 363, 366 I.P.C. can be said to have been committed by applicant. The prosecutrix has solemnized marriage with applicant therefore, it cannot be said that any offence under Section 376 I.P.C. and Section 3/4 POCSO Act has been committed by applicant. Even though the prosecutrix was below 18 years of age, on the date of her marriage with applicant yet the marriage of prosecutrix with the applicant shall not be void but voidable at the instance of the prosecutrix alone in view of the provisions contained in Section 11 (2) of the Hindu Marriage Act. However, no proceedings have been initiated by the prosecutrix for declaring the aforesaid marriage as void.
13. 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 custody since 17.05.2023. As such he has undergone approximately 5 months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. The medical evidence does not support the charge-sheet. On the above premise, the learned counsel for applicant submits 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.
14. 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-sheet accused, therefore he does not deserve any indulgence by this Court. As per certificate recovered by the Investigating Officer, the prosecutrix is aged about 17 years and two months. She is thus a child within the meaning of POCSO Act 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 applicant with reference to the record at this stage.
15. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that as per the statement of the prosecutrix recorded under Sections 161/164 Cr.P.C., the prosecutrix is a willing and consenting party, the prosecutrix has herself accompanied applicant, as such the prosecutrix was not abducted or kidnapped by the applicant for the purpose of marriage or to dislodge her modesty, as such prima facie no offence under Section 363, 366 I.P.C. is made out against applicant, the prosecutrix has solemnized marriage with applicant, in view of above, no offence under Section 376 I.PC and Section 3/4 POCSO Act can be said to have been committed by applicant,even though the prosecutrix was below 18 years of age, on the date of her marriage with applicant but simply on that ground 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, however upto this stage, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, yet in spite of above, 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, the judgement of apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by learned A.G.A. in opposition to the present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
16. Accordingly, present application for bail is allowed.
17. Let the applicant- Ravi involved in aforesaid case crime number 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 with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
18. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison Order Date :- 11.10.2023 YK