The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.5033 of 2024 Sk.jamiruddin ..... Petitioner Represented By Adv. – S. Mohapatra State Of Odisha -versus- ..... Opposite Party Represented By Adv. – P.C.Das, A.S.C. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 20.05.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Sri. S.Mohapatra, learned senior counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the Informant-Opposite Party. 3. This is an application under Section 439 of the Code of Criminal Procedure filed by the Petitioner for bail in connection with Cuttack Sadar P.S. Case No.216 of 2024, corresponding to Special G.R.Case No.85 of 2024 pending in the Court of the learned A.D.J.- Cum- Special Court under POCSO Act, Cuttack for alleged commission of offence under Section 363 of I.P.C. 4. In course of his argument learned senior counsel appearing for the petitioner submitted that before the trial court both parents of the petitioner as well as victim filed a compromise petition wherein it has Page 1 of 5. been categorically stated that the both families are agreeable to the marriage subject to the victim attaining the marriageable age. However, the learned trial Court while considering the bail application of the petitioner has rejected the same on the ground that consent by a minor is no consent in the eye of law. It was further contended that the learned trial court has not given any emphasis to the affidavit filed by the parents of both the petitioner as well as victim who were definitely in a position to take a decision on the future of their wards. Learned senior counsel appearing for the petitioner submitted that both petitioner as well as victim who is above the age of 17 years but below the age of 18 years were in a love relationship. He further submitted that the petitioner is ready and willing to marry the victim once she attains the age 18 years. It was further contended that since both petitioner and the informant had fled with therein own consent, no case under Section 366 I.P.C. is made out against the petitioner. In such view of the matter, learned counsel for the petitioner submitted that the petitioner be released on bail on such terms and conditions as this Court deems fit and proper in the facts and circumstances of the case. 5. Learned counsel for the informant on the other hand filed an affidavit in Court today by one Sekh Riyahasat who is the father of the victim. On perusal of the affidavit it appears that the father of the victim has no objection to the petitioner being released on bail. Further, in the affidavit it has been categorically stated that the marriage of victim and petitioner has not yet been solemnised however, the same will take place once of the victim attains the age of 18 years. Similarly an affidavit has also filed by the father of the Page 2 of 5. present petitioner namely Sekh Jamiruddin. He has also stated in his affidavit that both the families, in presence of friends and relatives, have agreed for the marriage of the petitioner with the victim once the victim attains the age of 18 i.e. legal marriageable age. He further reveals that consent document was also prepared wherein both the father of the petitioner as well as victim has signed. In course of his argument learned senior counsel appearing for the petitioner also referred to the settlement documents under annexure-3 dated 03.05.2024 wherein it has been categorically admitted that petitioner and victim both were in love and the petitioner and victim ran away with consent. However, the matter has been settled between the two families, and once the victim attains the age of majority both the families have decided the solemnise the marriage as per their Islamic customs and traditions. 6. Learned counsel for the State on the other hand submitted that although the families have agreed for the marriage between the parties, however, offence under Section 376 does not get erased merely because of the consent by the victim, especially since the victim was a minor at the time when the alleged offence was committed and a consent by a minor is no consent in the eye of law. He also argued that the offences under the POCSO Act have also been levied against the petitioner. On such ground learned counsel for the state submitted that this Court should not accept the settlement between the two families. Accordingly, considering the gravity of allegation made against the present petitioner, it was prayed that the present petitioner should not be released on bail. 7. Considering such submissions made by the learned counsel Page 3 of 5. appearing for the respective parties, on a conspectus of the materials on record, as well as the surrounding facts and circumstances of the present case, this Court observes that both families have no objection to the marriage between the petitioner and the victim. In fact, the fathers of both the petitioner as well as the victim have filed an affidavit before this Court admitting the said position and they have also agreed for the marriage once the victim attains the marriageable age. the marriage solemnised Islamic belongs. Further this Court would also like to observe that, Since , the family belongs to the Islamic Community, they are open to conducting marriage between the parties as per the Islamic custom and traditions, as per which the marriage of a female is permissible once she attains puberty, as has been recognised by many judgments of different Courts of this country. Having said that, this Court is also aware of the impact on the society and, the impact of laws which have been created by the parliament specifically in this regard, however, considering the fact that the both families have agreed to the marriage between the parties and have filed an affidavit in this regard, further considering the fact that particularly the informant has no objection to the release of the petitioner in this case, this Court is inclined to the petitioner on bail. Accordingly it is directed that petitioner be released on bail upon furnishing a bail bond of Rs.35,000/-(Rupees Thirty Five Thousand) two local solvent sureties for the like amount to the satisfaction of the Court in seisin over the matter. The release of the petitioner shall also be subject to condition: I) shall not make any contact with the victim in any manner whatsoever; Page 4 of 5. II) Petitioner shall not make any attempt to influence or threaten any of the prosecution witnesses III) shall cooperate with the investigation; III) shall appear before the I.O. as and when required for the purpose of investigation; and IV) shall appear before the Trial Court on each and every date fixed. Violation of any of the terms and conditions shall entail cancellation of bail. 8. 9. BLAPL is accordingly disposed of. Issue urgent certified copy as per Rules. ( A.K. Mohapatra ) Judge Rubi Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-May-2024 10:30:56