High Court

Heard Sri Pradeep Kumar Tripathi, learned counsel for the applicant, Sri Vishwas Saraswat, learned AGA for the State- respondent as well as Sri Pradeeep Kumar Mishra, leaned counsel for the complainant. The applicant is arraigned in case Crime No. 52 of 2024 under Sections 363, 366 I.P.C. relating to Police Station Ramkot District Sitapur. The First Information Report was lodged by the father of the victim alleging that his daughter was a minor and the present applicant had lured the victim with a false pretext to marry and eloped with her and the other co-accused were instrumental. The matter was escalated as the applicant and the victim jointly filed a petition under Article 226 of the Constitution of India challenging the FIR No. 52 of 2024 in Criminal Misc. Writ Petition No. 1709 of 2024. The said writ petition was filed with the averments that both the writ petitioners (the applicant and the victim herein) were lawfully married and the First Information Report against the applicant and the other co-accused was bad in the eyes of law. During the hearing of the writ petition bearing W.P. No. 1709 of 2024, certain events transpired and it revealed prima facie that the victim was a minor. The Adhar card which was filed in the said writ petition did not bear the correct date of birth and relying upon the said Adhar Card, the affidavit was filed in the said writ petition was also not valid. Before the writ court, the proceedings were opposed by the father of the victim and it was alleged that the date of birth in the alleged Adhar Card which had been filed by the petitioners was fraudelent. It was further stated that the date of birth of the victim was 01.01.2011 whereas the date of birth in the alleged Adhar Card was mentioned as 01.01.2006. The Division Bench of this Court while hearing the writ petition had also summoned the petitioners and thereafter noticing the stand of the petitioners including summoning the records from the school where the victim was studying, the Division Bench found that the victim was a minor and she was handed over to the Child Welfare Committee and also dismissed the writ petition with certain observations including imposition of cost. Upon investigation, apart from Sections 363 and 366 I.P.C. further sections were added, interalia Sections 468, 466, 474, 471, 504, 506, 306 (3) I.P.C. and 3/4 (2) of POCSO Act. The applicant was apprehended and is in Jail since 09.04.2024. In the aforesaid backdrop, the submissions of learned counsel for the applicant is that the applicant and the victim were in a relationship and the applicant married the victim in Lucknow on 23.02.2024 and later the said marriage was also registered before the Registrar of Marriages on 01.03.2024. It is alleged that since the victim was a major and she eloped with the applicant on her volition, hence, apparently no case in terms of Section 363 and 366 was attracted. It is further urged that the victim had made a statement before the Division Bench of this Court in the writ petition that she had married the applicant, however, after the writ petition was dismissed, the statements of the victim which was recorded under Section 161 Cr.P.C. categorically indicates that the victim stated that she was 18 years of age and that she had studied uptill Class 8th. It was alleged by her that the applicant had forcibly taken the victim to Lucknow where he solemnized the marriage and thereafter he forced the victim to appear before the High Court, however, she did not make any allegation of sexual assault. Even in her statement, recorded under Section 164 Cr.P.C. she did not level any allegation against the applicant for any sexual assault. Though, she reiterated her stand that the applicant had forcibly taken the victim to Lucknow where he solemnized a marriage. She also stated that the applicant and other co- accused persons were instrumental in getting a false Adhar Card prepared indicating the age of the victim to be 18 years. The learned counsel for the applicant submitted that no allegation prima facie of any sexual assault is made out. It is also urged that the statements do not indicate that who got the Adhar Card prepared as there is no specific statement in this regard. It is thus submitted that neither the ingredients of fraudulent preparation of Adhar Card is made out against the applicant nor the allegations of sexual assault is made out. It is further submitted that the victim had refused to undergo medical examination and in light of the aforesaid circumstances, the further sections which have been added are also not made out and for all the aforesaid reasons, the applicant who does not have any criminal history has been in Jail since 09.04.2024, coupled with the fact that the applicant comes from a stable house-hold and there is no apprehension that the applicant can influence any witness or tamper with any evidence especially when the charge sheet has already been filed. It has also been urged that the other co-accused namely Arif and Haseeb were granted the benefit of anticipatory bail in Criminal Misc. Anticipatory Bail Application No. 958 of 2024 order dated 08.05.2024 while the other co-accused Gulfam @ Irfan was granted regular bail in Criminal Misc. Bail Application No. 5999 of 2024 by means of order dated 31.05.2024. The learned A.G.A. has opposed the bail application and has submitted that from the school records, it is clear that the victim was a minor and allegedly 13 years old girl who was lured to leave her home and thereafter as stated by the applicant that he and the victim solemnized their was per-se does not get legal acceptance as the victim was a minor. It is further urged that in order to give shape to the illegal design of the applicant, a fake Adhar Card was got prepared by back dating correcting the date of birth of the victim which was utilized to get the marriage registered, inasmuch as, her actual date of birth was 01.01.2011 which was back dated as 01.01.2006. It is further urged that an earlier attempt of the applicant to get a seal of judicial acceptability on the illegal act was made by the applicant including the victim by filing the Misc. Writ Petition No. 1709 of 2024 which came to be dismissed on 20th March, 2024 with specific observations indicating that the fake Adhar card was used to get the marriage registered as well as to file a writ petition before the Division Bench and this could not have been facilitated without the active assistance of the applicant and thus the applicant prima facie is responsible for luring the minor victim from her house hold and put through the trauma of forcible marriage. It is also stated that the school leaving certificate of 2011 the victim indicated her age as 01.01.2011. This was got changed to 01.01.2006 only for the purposes of indicating the age of the victim to be major so that their alleged marriage can be registered. It is further urged that during investigation, it was also found that there was a change in the year of birth of the victim in the Pariwar Register and this was also done on the basis of the Adhar Card with the fake date of birth and it was done on 16.03.2024. This is after the marriage got registered on 03.03.2024, on the basis of the Adhar Card with the fictitious date of birth. The entry made in the Pariwar Register was also got done while the writ petition was pending before the Division Bench of this Court and after a detailed order had been passed on 13.03.2024. It is thus submitted that the applicant is a clear beneficiary who alleged that he had married the victim and apparently the allegations against the applicant are made out and on the aforesaid basis, the charge sheet has also been filed in the Court and as such the bail application deserves to be rejected. Similar submissions have been made by learned counsel for the complainant. The Court has heard the learned counsel for the applicant and the learned A.G.A. and the learned counsel for the complainant and also perused the material on record. Apparently, the applicant and the victim appear to be in some sort of relationship. From the discrepancies noticed in the Adhar Card especially considering the order passed by the Division Bench in W.P. No. 1709 of 2024 dated 13.03.2024 and 20.03.2024, there is prima facie material to infer that the Adhar Card of the victim which initially had her date of birth as 01.01.2011 was got changed to 01.01.2006. The school leaveing certificate of the victim also corroborates date of birth as 01.01.2011. Considering the fact that the charge sheet has been filed and the extent of the complicity of the applicant is yet to be tested in trial and from the statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C., there is clear denial of any sexual assault on her by the applicant or the other co-accused. The medical examination was refused. It was also not disputed that apart from the instant case, the applicant has no other criminal history. Whether the applicant was instrumental in getting the date of birth changed fictitiously in the Adhar Card and was responsible for getting an entry made in the Pariwar Register is all to be seen in trial. The applicant who otherwise is of a young age and has been in Jail since 09.04.2024 on the basis of some sort of involvement with the victim and also considering that the learned A.G.A. has not expressed any apprehension that the applicant is at flight risk or can influence any witness or tamper with the evidence in light of the fact that the charge sheet has been filed. Moreover, the other co-accused have also been enlarged on bail. Considering the rival submissions as well as the facts and circumstances of the case and the material available on record including the accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail. Accordingly, the instant bail application is allowed. Let the applicant- Surru @ Israr involved in the above- mentioned case crime be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned. At the time of executing required sureties, the following conditions shall be 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 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 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 of the Indian Penal Code. (iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Order Date :- 8.1.2025 Asheesh/-

Heard Sri Pradeep Kumar Tripathi, learned counsel for the applicant, Sri Vishwas Saraswat, learned AGA for the State- respondent as well as Sri Pradeeep Kumar Mishra, leaned counsel for the complainant. The applicant is arraigned in case Crime No. 52 of 2024 under Sections 363, 366 I.P.C. relating to Police Station Ramkot District Sitapur. The First Information Report was lodged by the father of the victim alleging that his daughter was a minor and the present applicant had lured the victim with a false pretext to marry and eloped with her and the other co-accused were instrumental. The matter was escalated as the applicant and the victim jointly filed a petition under Article 226 of the Constitution of India challenging the FIR No. 52 of 2024 in Criminal Misc. Writ Petition No. 1709 of 2024. The said writ petition was filed with the averments that both the writ petitioners (the applicant and the victim herein) were lawfully married and the First Information Report against the applicant and the other co-accused was bad in the eyes of law. During the hearing of the writ petition bearing W.P. No. 1709 of 2024, certain events transpired and it revealed prima facie that the victim was a minor. The Adhar card which was filed in the said writ petition did not bear the correct date of birth and relying upon the said Adhar Card, the affidavit was filed in the said writ petition was also not valid. Before the writ court, the proceedings were opposed by the father of the victim and it was alleged that the date of birth in the alleged Adhar Card which had been filed by the petitioners was fraudelent. It was further stated that the date of birth of the victim was 01.01.2011 whereas the date of birth in the alleged Adhar Card was mentioned as 01.01.2006. The Division Bench of this Court while hearing the writ petition had also summoned the petitioners and thereafter noticing the stand of the petitioners including summoning the records from the school where the victim was studying, the Division Bench found that the victim was a minor and she was handed over to the Child Welfare Committee and also dismissed the writ petition with certain observations including imposition of cost. Upon investigation, apart from Sections 363 and 366 I.P.C. further sections were added, interalia Sections 468, 466, 474, 471, 504, 506, 306 (3) I.P.C. and 3/4 (2) of POCSO Act. The applicant was apprehended and is in Jail since 09.04.2024. In the aforesaid backdrop, the submissions of learned counsel for the applicant is that the applicant and the victim were in a relationship and the applicant married the victim in Lucknow on 23.02.2024 and later the said marriage was also registered before the Registrar of Marriages on 01.03.2024. It is alleged that since the victim was a major and she eloped with the applicant on her volition, hence, apparently no case in terms of Section 363 and 366 was attracted. It is further urged that the victim had made a statement before the Division Bench of this Court in the writ petition that she had married the applicant, however, after the writ petition was dismissed, the statements of the victim which was recorded under Section 161 Cr.P.C. categorically indicates that the victim stated that she was 18 years of age and that she had studied uptill Class 8th. It was alleged by her that the applicant had forcibly taken the victim to Lucknow where he solemnized the marriage and thereafter he forced the victim to appear before the High Court, however, she did not make any allegation of sexual assault. Even in her statement, recorded under Section 164 Cr.P.C. she did not level any allegation against the applicant for any sexual assault. Though, she reiterated her stand that the applicant had forcibly taken the victim to Lucknow where he solemnized a marriage. She also stated that the applicant and other co- accused persons were instrumental in getting a false Adhar Card prepared indicating the age of the victim to be 18 years. The learned counsel for the applicant submitted that no allegation prima facie of any sexual assault is made out. It is also urged that the statements do not indicate that who got the Adhar Card prepared as there is no specific statement in this regard. It is thus submitted that neither the ingredients of fraudulent preparation of Adhar Card is made out against the applicant nor the allegations of sexual assault is made out. It is further submitted that the victim had refused to undergo medical examination and in light of the aforesaid circumstances, the further sections which have been added are also not made out and for all the aforesaid reasons, the applicant who does not have any criminal history has been in Jail since 09.04.2024, coupled with the fact that the applicant comes from a stable house-hold and there is no apprehension that the applicant can influence any witness or tamper with any evidence especially when the charge sheet has already been filed. It has also been urged that the other co-accused namely Arif and Haseeb were granted the benefit of anticipatory bail in Criminal Misc. Anticipatory Bail Application No. 958 of 2024 order dated 08.05.2024 while the other co-accused Gulfam @ Irfan was granted regular bail in Criminal Misc. Bail Application No. 5999 of 2024 by means of order dated 31.05.2024. The learned A.G.A. has opposed the bail application and has submitted that from the school records, it is clear that the victim was a minor and allegedly 13 years old girl who was lured to leave her home and thereafter as stated by the applicant that he and the victim solemnized their was per-se does not get legal acceptance as the victim was a minor. It is further urged that in order to give shape to the illegal design of the applicant, a fake Adhar Card was got prepared by back dating correcting the date of birth of the victim which was utilized to get the marriage registered, inasmuch as, her actual date of birth was 01.01.2011 which was back dated as 01.01.2006. It is further urged that an earlier attempt of the applicant to get a seal of judicial acceptability on the illegal act was made by the applicant including the victim by filing the Misc. Writ Petition No. 1709 of 2024 which came to be dismissed on 20th March, 2024 with specific observations indicating that the fake Adhar card was used to get the marriage registered as well as to file a writ petition before the Division Bench and this could not have been facilitated without the active assistance of the applicant and thus the applicant prima facie is responsible for luring the minor victim from her house hold and put through the trauma of forcible marriage. It is also stated that the school leaving certificate of 2011 the victim indicated her age as 01.01.2011. This was got changed to 01.01.2006 only for the purposes of indicating the age of the victim to be major so that their alleged marriage can be registered. It is further urged that during investigation, it was also found that there was a change in the year of birth of the victim in the Pariwar Register and this was also done on the basis of the Adhar Card with the fake date of birth and it was done on 16.03.2024. This is after the marriage got registered on 03.03.2024, on the basis of the Adhar Card with the fictitious date of birth. The entry made in the Pariwar Register was also got done while the writ petition was pending before the Division Bench of this Court and after a detailed order had been passed on 13.03.2024. It is thus submitted that the applicant is a clear beneficiary who alleged that he had married the victim and apparently the allegations against the applicant are made out and on the aforesaid basis, the charge sheet has also been filed in the Court and as such the bail application deserves to be rejected. Similar submissions have been made by learned counsel for the complainant. The Court has heard the learned counsel for the applicant and the learned A.G.A. and the learned counsel for the complainant and also perused the material on record. Apparently, the applicant and the victim appear to be in some sort of relationship. From the discrepancies noticed in the Adhar Card especially considering the order passed by the Division Bench in W.P. No. 1709 of 2024 dated 13.03.2024 and 20.03.2024, there is prima facie material to infer that the Adhar Card of the victim which initially had her date of birth as 01.01.2011 was got changed to 01.01.2006. The school leaveing certificate of the victim also corroborates date of birth as 01.01.2011. Considering the fact that the charge sheet has been filed and the extent of the complicity of the applicant is yet to be tested in trial and from the statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C., there is clear denial of any sexual assault on her by the applicant or the other co-accused. The medical examination was refused. It was also not disputed that apart from the instant case, the applicant has no other criminal history. Whether the applicant was instrumental in getting the date of birth changed fictitiously in the Adhar Card and was responsible for getting an entry made in the Pariwar Register is all to be seen in trial. The applicant who otherwise is of a young age and has been in Jail since 09.04.2024 on the basis of some sort of involvement with the victim and also considering that the learned A.G.A. has not expressed any apprehension that the applicant is at flight risk or can influence any witness or tamper with the evidence in light of the fact that the charge sheet has been filed. Moreover, the other co-accused have also been enlarged on bail. Considering the rival submissions as well as the facts and circumstances of the case and the material available on record including the accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail. Accordingly, the instant bail application is allowed. Let the applicant- Surru @ Israr involved in the above- mentioned case crime be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned. At the time of executing required sureties, the following conditions shall be 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 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 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 of the Indian Penal Code. (iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Order Date :- 8.1.2025 Asheesh/-