High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2162 of 2023 Applicant :- Taufiq Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjay Kumar Mishra Counsel for Opposite Party :- G.A.,Binod Kumar Jha,Dilip Kumar Goswami Hon'ble Saurabh Shyam Shamshery,J. Heard Sri Sanjay Kumar Mishra, learned counsel for applicant, Sri Binod Kumar Jha, learned counsel for informant and Sri Markandey Singh, Brief Holder for State. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 05.12.2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), Deoria, in Case Crime No.05 of 2022 under Sections 363, 366, 376, 120B, 323, 504, 506 I.P.C. and Sections 3/4 of POCSO Act, Police Station- Madanpur, District – Deoria. The informant is father of victim (a minor girl). He lodged an F.I.R. against applicant and three other named persons that despite objections, her minor daughter was very close to her Chachi(Moni Khatoon) who introduced her to applicant and he entices her(victim) and kidnapped her from lawful guardianship. It was alleged that victim informed her father on phone that she will not return and she will marry with applicant. It was alleged that all co- accused persons have helped the applicant for committing offence of kidnapping from lawful guardianship.
Legal Reasoning
(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail. (D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors. (See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559) In the present case, age of victim is less than 18 years, therefore, she is a minor girl, therefore, applicant will not get any benefit of nikahnama as it was based on forged document that victim is a major girl. Victim has specifically stated in her statement recorded under Section 164 Cr.P.C. that she came to know that applicant is an already married person and he kept her in his custody and did not allow her to go as well as he assaulted her also. Her consent was taken under misconception. She was enticed by applicant and was forced to live as husband and wife. It is also relevant that till date statement of victim has not been recorded. Therefore, at this stage, no ground is made out to grant bail to applicant, hence, prayer for bail is rejected. However, this application is disposed of with a direction that Trial Court shall take all endeavour to record statement of victim during trial within a period of six months from today, if there is no legal impediment and thereafter applicant will be at liberty to renew his bail application before Trial Court. Order Date :- 11.4.2023 P. Pandey Digitally signed by :- PUSHPENDRA PANDEY High Court of Judicature at Allahabad
Arguments
Learned counsel for applicant submits that victim is a major girl and she left the house of informant on her own will. There was a love-affair with applicant. On basis of documents produced by victim that she is a major girl, both applicant and victim got married according to Muslim Rituals. Learned counsel for applicant placed on record the Nikahnama in support of his submission as well as documents to show that victim was a major girl. Learned counsel further submits that after Nikah, both have approached this Court and a protection was granted to them not to interfere with their married life. He further refers that victim has submitted an application before Investigating Officer that they are major and they have married. Victim in her statement recorded under Sections 161 and 164 Cr.P.C. has narrated that she on her own will, went along with applicant and they got married, however, she added that later on she came to know that applicant was already married. She further added in statement recorded under Section 164 Cr.P.C. that she was enticed by applicant and she was confined for about two months and applicant did not allow her to go back to her house as well as he assaulted her and caused burn injuries also. Learned counsel submits that there is no evidence of assaulting as nothing has come out in her medical examination and such statements were given under pressure of family members. Learned counsel for applicant submits that applicant is behind the bar since 11.10.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. Learned Brief Holder for State and learned counsel for informant have vehemently objected the above submissions that according to High School Certificate of victim, she is a minor girl and at the time of occurrence, her age was about 17 years and 5 months and as such victim has submitted forged documents about her age being above 18 years at the time of Nikah, therefore, Nikahnama was void. Applicant and victim have misled this Court to get an order for police protection. LAW ON BAIL - A SUMMARY (A) The basic rule may perhaps be tersely put as bail, not jail. (B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.