Allahabad High Court
Ranjeet Joshi vs State Of U.P. And 3 Others on 26 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:149910 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24743 of 2023 Applicant :- Ranjeet Joshi Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vivek Sharma Counsel for Opposite Party :- G.A.,Amrita Singh Hon'ble Rajeev Misra,J.
Heard Mr. Vivek Sharma, the learned counsel for applicant, the learned A.G.A. for State and Mr. P.K. Sharma, the learned counsel representing first informant.
This application for bail has been filed by applicant Ranjeet Joshi seeking his enlargement on bail in Case Crime No.738 of 2022, under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Gajraula, district Amroha, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 08.11.2022, a delayed first information report dated 14.11.2022 was lodged by first informant-Manoj Kumar Joshi (father of the prosecutrix) and was registered as Case Crime No.0738 of 2022, under Sections 363, 366 IPC, police station Gajraula, district Amroha. In the aforesaid F.I.R., applicant Ranjeet Joshi has been nominated as solitary named accused.
The gravamen of the allegations made in the first information report is to the effect that on 08.11.2022 at 6.00 a.m. when the prosecutrix had gone out toattend the call of nature, named accused Ranjeet Joshi-applicant herein enticed away the minor daughter of the first informant i.e. prosecutrix namely X aged about 16 years.
After aforesaid first information report was lodged, the prosecutrix and the applicant jointly approached this Court by filing Criminal Misc. Writ Petition No.18049 of 2022 (Swati and another Vs. State of U.P. and 3 others). In the aforesaid writ petition, this Court passed an order dated 28.11.2022. For ready reference, the order dated 28.11.2022 is reproduced herein-under :-
"Vakalatnama filed by Sri Brajesh Shukla on behalf of respondent no. 4 today is taken on record.
Heard learned counsel for the petitioners, learned counsel for the informant and the learned A.G.A.
This writ petition has been filed praying to quash the impugned First Information Report dated 14.11.2022 registered as Case Crime No. 738 of 2022, under Sections 363, 366 IPC, P.S.- Gajraula, District- Amroha.
Both the petitioners no. 1 and 2 are major and have married with each other out of their own free will and as such no offence under Section 366 I.P.C. is made out.
Be that as it may, the writ petition is disposed off with a direction to the daughter of the complainant (i.e. victim) to appear before the Chief Judicial Magistrate concerned for recording her statement under Section 164 Cr.P.C., within four weeks from today. In the event the victim appears before the Chief Judicial Magistrate concerned within the stipulated period, the Chief Judicial Magistrate concerned shall record her statement under Section 164 Cr.P.C. and shall pass appropriate orders in accordance with law. The investigating officer shall proceed thereafter in accordance with law.
Till recording of the statement of the first petitioner, petitioners shall not be arrested pursuant to the impugned first information report, provided they cooperate in the investigation. The second and third respondent shall ensure that any family member, if taken in custody or detained in police station, shall forthwith be released."
Subsequent to above order dated 28.11.2022, the prosecutrix appeared before the Investigating Officer on 03.12.2022. Thereafter, her statement under Section 161 CrPC was recorded, which is on record at page 38 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, she stated that she met with applicant, fell in love and thereafter accompanied the applicant to Allahabad and solemnized marriage with the applicant on 12.11.2022. She has ultimately concluded by saying that she wants to reside with the applicant. Thereafter, the prosecutrix was requested for her internal medical examination, which was initially denied by her. The Doctor, who examined the prosecutrix, did not find any mark on her body so as to denote commission of sexual assault. However, with regard to the private part of the prosecutrix, the Doctor opined as follows :-
"No mark of internal injury seen on private part of body at the time of examination. Hymen represented old, torned and healed"
As per the medical opinion, which is at page 46 of the paper book, the prosecutrix was said to be aged about 19 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 50 of the paper book. The prosecutrix in her aforesaid statement has initially supported her previous statement recorded under Section 161 CrPC but has however stated that her modesty was not dislodged by applicant deliberately or forcibly.
Subsequent to above, the statements of the first informant and other witnesses were recorded under Section 161 CrPC, who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating Officer during he course of investigation, he came to the conclusion that offence under Section 376 IPC and Section 3/4 Pocso Act is also made out against applicant. Accordingly, he submitted the charge-sheet dated 20.04.2023, whereby applicant has been charge-sheeted under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act.
Learned counsel for the applicant contends that even though the applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. In the submission of learned counsel for applicant the date of birth of the prosecutrix as per Adhar/Rashan Card is 01.01.2004. It is next contended that as per Transfer Certificate of the prosecutrix, her date of birth is 21.11.2006. However, the said Transfer Certificate relates to class VII of the prosecutrix. As per the medical opinion the prosecutrix she is said to be aged about 19 years. Contradicting the veracity of Adhar/Rashan Card as well as Transfer Certificate of the prosecutrix, learned counsel for applicant contends that by virtue of the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, Adhar Card and Rashan Card cannot be taken into consideration for determining the date of birth of the prosecutrix. Relying on the judgement of the Apex Court in P. Yuvprakash Vs. State Represented by Inspector of Police 2023 LiveLaw (SC) 538 he contends that Transfer Certificate cannot be relied upon to determine the age of the victim. Even otherwise, the Transfer Certificate of the prosecutrix is not worthy of reliance as it does not relate to the institution where the prosecutrix had first studied, rather it relates to Class-VII alleged to have been passed by the prosecutrix. He therefore contends that the only evidence regarding the age of the prosecutrix which can be relied upon is the medical evidence on the basis of which the prosecutrix is major as she was 19 years of age on the date of occurrence. Consequently, no offence under Section 3/4 Pocso Act is made out against the applicant. Referring to the statement of the prosecutrix as noted above, he contends that since the prosecutrix is a willing and consenting party and she herself came to the applicant and thereafter accompanied him to Allahabad and solemnized marriage therefore, no offence under Section 363/366 IPC can be said to have been committed by the applicant as neither there was any inducement nor any fraud played by the applicant. Since the prosecutrix is major and she is a willing and consenting party, no offence under Section 376 IPC can be said to have been committed by the applicant either. Referring to the statement of the prosecutrix as recorded under Section 161/164 CrPC, he submits that when the aforesaid statements are taken into consideration as a whole, the same are not only inconsistent but also contradictory. As such they do not fall in the category of impeccable evidence. Consequently, by virtue of the law laid down by Apex Court in Phool Singh Vs. State of MP (2022) 2 SCC 74 no conviction of the applicant can be maintained on the basis of above. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. The applicant is in jail since 31.03.2023. As such he has undergone more than three and half months of incarceration. Attention of the Court was also invited to the judgement of the Apex Court in the case of Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another, 2023 Livelaw SC 373 (Paragraph 5) and on the basis thereof he submits that since the charge-sheet has been submitted against the applicant, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. It is thus contended by the learned counsel for applicant 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. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this court. As per the material on record, the prosecutrix is minor as she is below 18 years of age. As such 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 the applicant with reference to the record at this stage.
Having heard the leaned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, considering the submissions urged by the learned counsel for applicant which could not be dislodged by the learned A.G.A. or the learned counsel representing first informant with reference to the record at this stage, no such circumstance has been pointed out by the learned A.G.A. or the learned counsel for first informant that custodial arrest of the applicant is absolutely necessary during the pendency of trial, but without making any comments on the merit of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Ranjeet Joshi, 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 :- 26.7.2023.
Rks.