Uttarakhand High Court
Shanti Devi vs State Of Uttarakhand And Another on 21 March, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Cancellation Application No.35 of 2023
Shanti Devi ........Applicant
Versus
State of Uttarakhand and another ........Respondents
Present:-
Mr. Shivam Sharma, Advocate for the applicant.
Mr. M.A. Khan, AGA with Mr. Vipul Painuli, Brief Holder for
the State/respondent no.1.
Mr. Priyanshu Gairola, Advocate for respondent no.2.
Hon'ble Ravindra Maithani, J. (Oral)
The respondent no.2 ("the accused") was granted bail on 10.10.2023 in Second Bail Application No.117 of 2023, Sachin Shah vs. State of Uttarakhand, under Sections 363, 365, 376, 323, 506 IPC and Sections 5(j)(ii)/6 of The Protection Of Children From Sexual Offences Act, 2012, by the court of Special Sessions Judge, Uttarkashi. Now, the applicant who lodged FIR seeks cancellation of the bail.
2. Learned counsel for the applicant would submit that the bail was wrongly granted to the accused because the applicant, who is informant, was never heard in the matter, which was mandatory in view of Section 439 (1A) of the Code of Criminal Procedure, 1973 ("the Code") because it is argued that the victim was less than 2 16 years of age, which attracts the provisions of Section 376(3) IPC. The victim should have been given an opportunity of being heard.
3. On the other hand, learned counsel for the accused would submit that the order granting bail is lawful. The court had discussed the age, as given by the accused or as produced by the prosecution and after examining the date of birth, the order has been passed.
4. It is true that presence of informant or any person authorized by him is obligatory at the time of hearing of application for bail to the person under Section 376(3) IPC. The Section (1)(A) of 439 of the Code are as follows:-
"439. .......................................................................
(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860)."
5. In the instant case, the applicant was not in custody for the offence under Section 376(3) IPC. He was in custody under Sections 363, 365, 376, 323, 506 IPC and Section 5(j)(ii) read with Section 6 of the Protection Of Children From Sexual Offences Act, 2012. Therefore, 3 apparently this provision of Section 439 (1A) is not attracted in this case.
6. In so far as date of birth is concerned, in para 5, 6 and 7 of the affidavit filed in support of the bail cancellation application, the applicant has stated as follows:-
"5. That the accused in his bail application before the Hon' ble Special Session Judge Uttarkashi questioned the age of the victim and filed the document of the primary school manjiyali on which the date of birth was mentioned as 25.04.2002 in which the victim had studied from class 1st to 3rd and the date of birth of the victim in Parivar Register is 01.01.2005 while the date of birth mentioned in the admission form of Dhanvantari school at the time of admission of the victim in class 1st.
6. That it is also questioned by the accused/respondent that the F.I.R. was lodged on 02.08.2023 while the incident was of 13.08.2021.
7. That the Hon'ble Special Session Judge Uttarkashi while granting bail did not considered the fact that the date of birth mentioned in the Transfer Certificate of victim as well as on the mark sheet of class 10th of victim is 03.05.2006. It is also pertinent to mention here that while considering the age of the victim in the case of POCSO act the date of birth mentioned in Transfer Certificate / Mark sheet of class 10th will given preference. True copy of Transfer certificate and mark sheet of class 10th of the victim is filed (colly) and marked as Annexure no.03 to this application."4
7. A bare reading of the above paragraphs makes it clear and as per the applicant, the date of birth of the victim is 03.05.2006 whereas, the accused claimed her age as 25.04.2002. In the order granting bail, the Sessions Court has quite in detail discussed the factum of age of the victim. In fact, in internal page 5, 6 and 7, the court had sought a report from police on this aspect. In fact, final adjudication on age may be done during trial. It cannot be said that the different age of the victim were not brought to the notice of the court while passing the order.
8. Having considered, this Court does not see any reason to interfere in the instant matter. Accordingly, first bail cancellation application deserves to be rejected.
9. The first bail cancellation application is rejected.
(Ravindra Maithani, J.) 21.03.2024 Sanjay