Allahabad High Court
Ravi vs State Of U.P. And 3 Others on 29 March, 2023
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4583 of 2023 Applicant :- Ravi Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Puneet Kumar Counsel for Opposite Party :- G.A. Hon'ble Saral Srivastava,J.
Vakalatnama filed by Sri S.M.Faraz I.Kazmi, Advocate today on behalf of informant is taken on record.
Heardlearned counsel for the applicant-accused, learned counsel for informant and learned A.G.A. for the State and perused the record.
The present bail application has been filed on behalf of the applicant-accused in Case Crime No.114 of 2022, under Sections 363, 366 and 376 of I.P.C. & Section 3/4 or 5J(ii)/6 of POCSO Act, P.S. Nagal, District Saharanpur with a prayer to enlarge him on bail.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case with some ulterior motive. It is submitted that it is a case of false and malicious prosecution. It is further submitted that as per the prosecution case as alleged in the F.I.R. that victim is minor is false inasmuch as victim in her statement recorded under Section 161 of Cr.P.C. has stated her date of birth as 16.01.2002 and has further stated that she eloped with the applicant-accused voluntarily and married with him. It is further submitted that same facts have been reiterated by the victim in her statement recorded under Section 164 of Cr.P.C. It is further submitted that victim alongwith applicant-accused has preferred Writ-C No.16723 of 2022 before this Court claiming herself to be major and this Court vide order dated 09.06.2022 granted protection to the victim and the applicant. It is further submitted that victim has posed herself to be major. It is further submitted that no offence under Section 376 of I.P.C. & Section 3/4 or 5J(ii)/6 of POCSO Act is made out against the applicant-accused in view of the statement of victim under Sections 161 & 164 of Cr.P.C. coupled with the fact that victim has preferred Writ-C No.16723 of 2022 before this Court in which this Court vide order dated 09.06.2022 granted protection to the victim and applicant-accused. It is further submitted that the applicant-accused has no criminal history and is languishing in jail since 14.08.2022.
Learned counsel for the informant has vehemently opposed the prayer for bail of the applicant and submitted that victim is minor. He further submits that as per the F.I.R., the age of the victim is 15 years. It is further submitted that as per the birth certificate issued by the concerned Nagar Nigam, the date of birth of the victim is 16.02.2007 and thus, it is established on record that the victim was minor on the date she ran away from her house. It is further submitted that as the victim is minor, therefore, consent is not material and offence under the POCSO Act is made out against the applicant-accused.
Per contra learned A.G.A. has adopted the argument of learned counsel for the informant and further submitted that as per the Pariwar Register, the date of birth of the victim is 16.02.2007, therefore, offence under the POCSO Act is made out against the applicant-accused. He further submits that in case the applicant is released on bail, he will misuse the liberty of bail.
Be that as it may, the facts as emanate from the record are that the victim in her statement under Section 161 of Cr.P.C. has stated her date of birth to be 16.01.2002 and further, in her statement under Section 164 of Cr.P.C., she has stated her age to be 20 years. Further, the victim alongwith the applicant has preferred Writ-C No.16723 of 2022 before this Court in which this Court vide order dated 09.06.2022 has granted protection to the victim and applicant-accused. Thus, prima facie, it is evident that victim has showed herself to be major and believing the same to be true, the applicant-accused has solemnised marriage with the victim which is evident from the statement of victim recorded under Sections 161 & 164 of Cr.P.C.
In such view of the fact, the question as to whether the victim was minor on the date of occurrence as argued by the learned counsel for the informant on the basis of birth certificate issued by the concerned Nagar Nigam and Pariwar Register cannot be said to be the sole ground to reject the bail application of the applicant-accused as the Pariwar Register and other documents are yet to be proved in the court of law. Further, it is settled principle of law "bail is rule" and "jail is an exception".
Considering the entire facts and circumstances of the case, submission advanced by the learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, this Court finds it a fit case to release the applicant on bail.
Accordingly, let applicant-Ravi be released on bail in Case Crime No.114 of 2022, under Sections 363, 366 and 376 of I.P.C. & Section 3/4 or 5J(ii)/6 of POCSO Act, P.S. Nagal, District Saharanpur on his furnishing a personal bond with two sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 an abuse of liberty of bail and pass orders in accordance with law.
(iii) 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 of the Indian Penal Code.
(iv) 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. is issued and the 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 of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
It is further directed that the identity, status and residence proof of the sureties be verified by the authority concerned before they are accepted.
In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.
Accordingly, the bail application is allowed.
Order Date :- 29.3.2023/Sattyarth