Allahabad High Court
Ishwar Baitha 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:188006 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36294 of 2023 Applicant :- Ishwar Baitha Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Janardan,Ashok Kumar Yadava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Janardan Yadav, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Ishwar Baitha seeking his enlargement on bail in Case Crime No. 71 of 2023, under Sections 363, 366, 376 IPC and Sections 5/6 POCSO Act, P.S. Nebua Naurangia, District Kushi Nagar, during the pendency of trial.
Perused the record.
At the very outset, the learned A.G.A. submits that notice of present application for 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 opposite party 2 to oppose this application for bail.
Record shows that in respect of an incident, which is alleged to have occurred on 18.02.2023, a delayed F.I.R. dated 20.2.2023 was lodged by first informant Smt. Subhawati Devi (mother of the prosecutrix) and was registered as Case Crime No. 71 of 2023, under Sections 363, 366 IPC, P.S. Nebua Naurangia, District Kushi Nagar. In the aforesaid F.I.R., applicant Ishwar Baitha 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 enticed away the daughter of the first informant i.e. the prosecutrix namely X aged about 14 years for the purpose of marriage.
After above mentioned 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 7.4.2023, when she herself returned. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr. P. C. Same is on record at page 23 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, the prosecutrix has stated that she herself called the applicant and thereafter accompanied him to Tirupati Bala Ji, where they solemnized marriage in a temple. Thereafter, they started living as husband and wife. Physical relation between the parties was established. The prosecutrix has further stated that she is in family way for the last 4 months. Thereafter, the prosecutrix was requested for her internal medical examination, which was refused by her. However, upon external examination, no external injury was found on the body of the deceased. 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 Cr. P. C. Same is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statements recorded under Section 161 Cr. P. C., but with the improvement that she wants to reside with her parents. During course of investigation Investigating Officer examined the first informant and other witnesses under Section 161 Cr. P. C., witnesses so examined have supported the F.I.R. During course of investigation Investigating Officer recovered the certificate issued by the Head Master of the Institution, copy of which is on record at page 38 of the paper book. In the said certificate, the date of birth of the prosecutrix has been mentioned as 27.2.2007. The occurrence giving rise to present criminal proceedings is said to have occurred on 18.10.2023. As such, the prosecutrix was aged about 15 years, 11 months and 21 days on the occurrence. Consequently, Investigating Officer came to the conclusion that offence under the POCSO Act is also made out against applicant. Ultimately, Investigating Officer submitted the charge sheet whereby applicant has been charge sheeted dated 30.04.2023, under Sections 363, 366, 376 IPC and Sections 5/6 POCSO Act.
Present application came up for orders on 6.9.2023 and this Court passed the following order:-
"Heard Mr. Janardan Yadav, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Ishwar Baitha seeking his enlargement on bail in Case Crime No. 712 of 2023, under Sections 363, 366, 376 IPC and Sections 5/6 PCOSO. Act, P.S. Nebua Naurangia, District Kushi Nagar, during the pendency of trial.
Record shows that the provisions of the POCSO Act have been invoked against the applicant on the basis of the certificate issued by the Head Master of the Institution, copy of the same is on record at page 38 of the paper book. However, from the perusal of same, it is not clear that the said institution was first attended by the prosecutrix, therefore, in the absence of above, the said certificate cannot be relied upon in terms of Section 94 of Juvenile Justice (Care and Protection) of Children Act, 2015 for concluding the age of the prosecutrix as per the date of birth of the prosecutrix mentioned therein. Since the police report in terms of Section 173 (2) Cr. P. C. has already been submitted against applicant on 30.4.2023, therefore, the Investigating Officer is directed to submit an application under Section 173 (8) Cr. P. C. before Court concerned seeking the permission of Court to conduct further investigation. The Investigating Officer shall, thereafter, endeavour to find out the date of birth of the prosecutrix recorded in the institution first attended by her. The copy of the supplementary case diary shall be transmitted to this Court through the learned A.G.A. on or before the next date fixed.
Put up as fresh on 27.9.2023."
In compliance of above order dated 6.9.2023, the learned A.G.A. has filed a compliance affidavit. As per Annexure 1 to the said compliance affidavit, the prosecutrix had first studied in the institution namely Sri Kamal Primary School, Siswa, Goili, wherein her date of birth was recorded as 27.2.2007. As such, the prosecutrix was aged about 15 years 11 months and 21 days on the date of occurrence.
Learned counsel for applicant contends that though applicant is a named/charge sheeted accused, yet he is liable to be enlarged on bail. As per the statements of the prosecutrix recorded under Sections 161/164 Cr. P. C., she has solemnized marriage with the applicant, therefore, criminality, if any, alleged against the applicant now stands washed off, prosecutrix is a willing and consenting party, which is clearly evident from her aforesaid statements, the medical evidence does not show commission of any deliberate or forceful sexual assault upon the prosecutrix. Though the prosecutrix was below 18 years of age on the date of her marriage with the applicant, however, 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 reason of the provisions contained to Section 11 (2) of the Hindu Marriage Act. Admittedly, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void.
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 8.4.2023. As such, he has undergone more than 5 months of incarceration. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. He, therefore, submits that the 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. has opposed the prayer for bail. He submits that since the prosecurix was below 16 years of age on the date of commission of criminality, therefore, the consent, if any, of the prosecutrix, is wholly immaterial. To buttress his submission, he has relied upon the judgement of the Supreme Court in X (Minor) Vs. State of Jharkhand, 2022 Live Law (SC) 194. He, therefore, submits that no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage with reference to the material on 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 and coupled with the fact that the prosecutrix in her statements under Section 161/164 Cr. P. C., has categorically stated that she has solemnized marriage with the applicant, on account of the co-habitation of the prosecutrix with the applicant as wife and husband, the prosecutrix has come in family way, as per the material on record, the foetus is said to be aged about 4 months, though the prosecutrix was below 18 years of age on the date of her marriage with the applicant, but simply on that ground, her marriage with the applicant shall not be void, but voidable at the instance of the prosecutrix alone by reason of Section 11 (2) of the Hindu Marriage Act, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the clean antecedents of the applicant, the period of incarceration undergone, the police report in terms of Section 173 (2) Cr. P. C. having been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, 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, 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 merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Ishwar Baitha 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 :- 27.9.2023 HSM