Allahabad High Court
Pradeep Kumar @ Pintu vs State Of U.P.And 3 Others on 27 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:188631 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35333 of 2023 Applicant :- Pradeep Kumar @ Pintu Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Gaurav Singh Tomar,Subhash Gosain Counsel for Opposite Party :- G.A.,Babita Upadhyay,Dhirendra Kumar Verma,Renu Swarnkar Hon'ble Rajeev Misra,J.
Heard Mr. G.S. Tomar, the learned counsel for applicant, the learned A.G.A. for State and Ms. Babita Upadhyay, the learned counsel for first informant and Mr. Dhirendra Kumar Verma along with Renu Swarnkar, the learned counsel representing first informant/opposite party-4.
Perused the record.
This application for bail has been filed by applicant Pradeep Kumar @ Pintu seeking his enlargement on bail in Case Crime No. 44 of 2023, under sections 363, 366, 376 IPC, and Section 3/4 POCSO Act, Police Station- Kuthaund, District Jalaun during the pendency of trial.
At the very outset, learned, A.G.A submits that notice of present application for bail has been served upon first informant/opposite party-2. However inspite of service of notice, no one has put in appearance on behalf of opposite party-2 to oppose this application for bail.
Record shows that in respect of an incident which is alleged to have occurred on 2.3.2023, a belated F.I.R. dated 4.3.2023 was lodged by first informant Veer Singh and was registered as Case Crime No. 44 of 2023, under sections 363, 366, 376 IPC, and Section 3/4 POCSO Act, Police Station- Kuthaund, District Jalaun. In the aforesaid F.I.R. applicant Pradeep Kumar @ Pintu has been nominated as solitary named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that named accused i.e. applicant enticed away the minor daughter of first informant i.e. prosecutrix on 2.3.2023. The F.I.R. further records that prosecutrix i.e. daughter of first informant took away Rs. 10,000/- and certain jewellery kept in the house.
After aforesaid F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of chapter XII Cr.P.C. The prosecutrix was recovered on 29.3.2023, when she herself returned home. Thereafter the statement of prosecutrix was recorded under section 161 Cr.P.C, copy of same is on record at page 27 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, she has stated that she herself went with the applicant and thereafter accompanied him to Jhansi and then to Indore. Physical relations were also maintained with her by applicant. Thereafter the prosecutrix was requested for her internal medical examination. However, the same was refused by her. Ultimately, statement of the prosecutrix was recorded under section 164 Cr.P.C. wherein the prosecutrix has rejoined her earlier statement recorded under section 161 Cr.P.C. The prosecutix has further stated that she has solemnized marriage with applicant in a temple. During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. Witnesses so examined have supported the F.I.R.
Furthermore in the course of investigation, Investigating Officer recovered the School Leaving Certificate of the prosecutrix of Class-VIII, wherein her date of birth has been recorded as 5.6.2006. 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 established in the crime in question. He, accordingly submitted the charge sheet dated 16.6.2023, whereby named accused i.e. applicant has been charge sheeted under sections 363, 366, 376 IPC, and Section 3/4 POCSO Act.
Present application came up for orders on 6.9.2023 and this Court passed the following order:
"1. Heard Mr. Gaurav Singh Tomar, the learned counsel for applicant, the learned A.G.A. for State and Mrs. Babita Upadhyay, the learned counsel representing opposite party-2, High Court Legal Services Committee, High Court, Allahabad.
2. Perused the record.
3. Instant bail application has been filed by applicant-Ravi seeking his enlargement on bail in Case Crime No. 44 of 2023 under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, Police Station-Kuthaund, District-Jalaun, 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 the date of birth of the prosecutrix relied upon for the purpose of prosecution is the date of birth mentioned in the School Living Certificate of the prosecutrix. As per said certificate the date of birth of the prosecutrix recorded in the school record is 05.06.2006. 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, Jalaun 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. "
Chief Medical Officer, Jalaun has conducted the proceedings for medical determination of age of prosecutrix. As per said age determination report, the prosecutrix is said to be aged about 18 years.
Learned A.G.A. submits that in compliance of above order, however, Investigation was conducted by Investigating Officer but during course of investigation, Investigating Officer recovered the certificate from the institution, which was first attended by her. As per the said certificate, the date of birth of the prosecutrix is recorded as 5.7.2006. As such, on the date of occurrence, the prosecutrix was aged about 16 years and 7 months.
Learned counsel for applicant contends that though the applicant is named as well as charge sheeted accused, yet he is liable to be enlarged on bail. The prosecutrix in her statement under section 164 Cr.P.C. has categorically stated that she has solemnized marriage with applicant. It is then contended that though the prosecutrix was below 18 years of age on the date of her marriage with applicant but by reason of above, the marriage of the prosecutrix with the applicant shall not be void but voidable at the instance of prosecutrix alone by virtue of section 11 (2) of the Hindu Marriage Act. However, no proceedings have been initiated by the prosecutrix for declaration of her marriage with applicant as void.
Even otherwise applicant is a man of clean antecedents having no criminal history to his credit, except the present one. Applicant is in jail since 13.6.2023. As such, he has undergone three months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge-sheet has already been submitted, therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. he, therefore 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.
Per contra, the learned A.G.A. for State and the learned counsel representing opposite parties-2 and 4, have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is below 18 years of age, therefore no sympathy be shown in favour of applicant. Since prosecutrix is a child. Therefore, her consent if any, is immaterial.
Having heard the learned counsel for applicant, the learned A.G.A. for State, learned counsel for first informant upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that prosecutrix in her statement recorded under section 164 Cr.P.C. has clearly admitted that she has solemnized marriage with applicant, in view of above, the criminality if any alleged to have committed by applicant stands washed out, the credibility of the statement of the prosecutrix under section 164 Cr.P.C. has to be given precedence over the statement recorded under section 161 Cr.P.C. police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet inspite of above, learned A.G.A. and the learned counsel representing opposite parties- 2 and 4 could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicant Pradeep Kumar @ Pintu, be released on bail in the aforesaid case crime number on 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/HER 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/her 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 :- 27.9.2023 Arshad