Allahabad High Court
Vishnu vs State Of U.P. And 3 Others on 20 December, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:241507 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28363 of 2023 Applicant :- Vishnu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ravindra Prakash Srivastava,Renu Sharma Counsel for Opposite Party :- G.A.,Indrakesh Kumar Sharma Hon'ble Rajeev Misra,J.
1. Heard Miss Renu Sharma, the learned counsel for applicant, the learned A.G.A. for State and Mr. Indrakesh Kumar Sharma, the learned counsel representing first informant-opposite party 2.
2. Perused the record.
3. This application for bail has been filed by applicant-Vishnu, seeking his enlargement on bail in Case Crime No. 485 of 2023, under Sections 363, 366, 376 IPC and Sections 5/6 POCSO Act, Police Station-Khalilabad, District-Sant Kabir Nagar during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 19.05.2023, a delayed FIR dated 21.05.2023 was lodged by first informant-Smt. Seema Devi (mother of the prosecutrix) and was registered as Case Crime No. 485 of 2023, under Sections 363, 366 IPC, Police Station-Khalilabad, District-Sant Kabir Nagar. In the aforesaid FIR, applicant-Vishnu has been nominated as solitary named accused.
5. The gravamen of the allegations made in the FIR is to the effect that named accused-Vishnu enticed away the minor daughter of first informant i.e. the prosecutrix aged about 14 years, who has passed her Clas-9th examination for the purposes of marriage.
6. After above-mentioned FIR 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 28.05.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 29 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, the prosecutrix has stated that she was having affinity with the applicant and therefore, regular conversation took place between them. Ultimately, the prosecutrix alleges to have joined the applicant on 18.05.2023 and thereafter, accompanied him to Bombay. Subsequent to above, the prosecutrix was requested for her internal medical examination. The Doctor, who medically examined the prosecutrix, did not find any injury on her person so as to denote commission of deliberate or forceful sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the results of the same are in negative. As per the medical opinion, the prosecutrix was reported to be 17 years of age. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Same is on record at page 32 of the paper book. The prosecutrix in her aforesaid statement has not only reiterated her previous statement under Section 161 Cr.P.C. but has also stated that she has solemnized marriage with the applicant.
7. During course of investigation, Investigating Officer recovered the mark sheet of Class-8 of the prosecutrix wherein her date of birth is recorded as 21.04.2009. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 19.05.2023. As such, the prosecutrix was aged about 14 years and 28 days on the date of occurrence. Investigating Officer further examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantially supported the FIR. 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. He, accordingly, submitted the charge sheet dated 07.06.2023 whereby applicant has been charge sheeted under Sections 363, 366, 376(3) IPC, Sections 3/4 POCSO Act.
8. Learned counsel for applicant contends that though 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 recorded under Sections 161 and 164 Cr.P.C., he submits that the prosecutrix is a willing and consenting party. The prosecutrix was in acquaintance with the applicant and out of her own sweet will, she joined the applicant and thereafter accompanied the applicant to Bombay. As such, the applicant has neither abducted, kidnapped nor enticed away the prosecutrix for the purpose of sexual assault or marriage. Referring to the statement of the prosecutrix under Section 164 Cr.P.C., he submits that the prosecutrix in her aforesaid statement has categorically stated that she has solemnized marriage with the applicant. Though the prosecutrix was below 18 years of age on the date of her marriage with the applicant but simply on that ground, the marriage of the prosecutrix 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, up to this stage, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void. The medical evidence does not support the charge sheet. As such, applicant is liable to be admitted to bail.
9. 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 31.05.2023. As such, he has undergone more than 6 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he 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.
10. Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently 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 a young girl aged about 14 years and 28 days as per her date of birth recorded in the educational record. Consequently, the provisions of Section 6 of the POCSO Act stand attracted. It is further submitted that since the prosecutrix was below 18 years of age, therefore, her consent, if any, is highly immaterial. There is nothing on record to show that the consent of parents of the prosecutrix qua the marriage of the prosecutrix with the applicant. It is thus urged that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of the present application for bail with reference to the record at this stage.
11. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the prosecutrix in her statements under Sections 161/164 Cr.P.C. has not supported the FIR, the prosecutrix is a willing and consenting party, the prosecutrix was in acquaintance with the applicant and out of her own sweet will, she joined the applicant and thereafter accompanied the applicant to Bombay, as such, the applicant has neither abducted, kidnapped nor enticed away the prosecutrix for the purpose of sexual assault or marriage, the prosecutrix in her statements referred to above has categorically stated that she 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 simply on that ground but voidable at the instance of the prosecutrix by virtue of the provisions contained in Section 11(2) of the Hindu Marriage Act, up to this stage, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the clean antecedents of applicant, the period of incarceration undergone, 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 applicant stands crystallized, yet in spite of above, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the age of the prosecutrix has been determined with reference to her date of birth recorded in the mark sheet of Class-VIII of the prosecutrix, by virtue of the provisions contained in Sections 94(2)(i) and 94(2)(ii) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the age of the prosecutrix could be deteermined only with reference to any document recognized under the provisions of the judgment of Supreme Court in P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
12. Accordingly, the bail application is allowed.
13. Let the applicant-Vishnu, be released on bail in the aforesaid case crime number 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) 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.
14. 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 :- 20.12.2023 Vinay