High Court · 2022

Heard Shri P.K. Singh, learned counsel for the applicant; learned A.G.A. and also perused the record. By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No.53 of 2022, u/s 363, 376 I.P.C. and Section 3/4 of POCSO Act and also Section 3(2)(V) of SC/ST Act, P.S.-Rohaniya, District- Varanasi, is seeking his enlargement on bail during trial. The applicant is in jail since 3.5.2022. Contention raised by learned counsel for the applicant is that initially the F.I.R. was registered by the father of the victim on 6.2.2022 for the incident said to have taken place on 20.01.2022 u/s 363 I.P.C. against unknown person, with specific allegation that her daughter aged about 17 years is missing since 11.00 in the day and her whereabouts is still not known. Her mobile is coming switched off. After lodging of the F.I.R. the police has eventually recovered the victim girl and recorded her statement u/s 161 Cr.P.C. in which she has completely blasted the prosecution case by mentioning that she is aged about 17 years and she made contacts with the applicant through Facebook and thereafter they started chatting over it. This social media plateform has acted as a bridge between them and she met with the applicant thrice prior to the incident and has visited on 20.01.2022 to perform the marriage. Accordingly they have performed the marriage and since then they are residing as husband and wife from last four months. Learned counsel for the applicant has drawn attention of the Court to radiological report of the girl in which her age comes around 19-20 years and except her hymen to be old, healed and torn there is no other internal or external injury found over her person. In her 164 statement the girl has reiterated her earlier version of 161 statement, that she met with the applicant through social media platform and on 20.01.2022 she on her own came to the applicant's place, where they have performed the marriage. She has expressed her willingness in so many words that she does not want to go with her parents and wants to remain in the company of applicant and even today she is residing with her in-laws. Per contra learned A.G.A. has opposed the bail by mentioning that as per High School Certificate the date of birth of the girl is 21.11.2005 and as such after computing her age on the date of incident was almost 17 years, thus, she was a minor and the consent of a minor has got no value in the eye of law. In replica learned counsel for the applicant has relied upon a judgment of Hon'ble Supreme Court in the case of Sanjeev Kumar Gupta vs. State of U.P. and Anr decided on 25.7.2019, in which Hon'ble Supreme Court after assessing the facts of the case have simply ignored the matriculation certificate of the prosecutrix with an observation that matriculation certificate cannot be accepted as credible or authentic. Thus, it is alleged by learned counsel for the applicant that mere mentioning a particular date of birth in High School Certificate should not be considered to be a 'gospel truth' in every case. When a girl on her own volition and accord has joined the company of applicant and she claims that she is her legally wedded wife and now she wants to remain in the company of applicant as his wife. Thus, mere on the ground of certain technicalities such as regarding her age the bail should not be ignored to such an applicant. In the criminal jurisprudence the rigors of Sections 363, 366 and 376 IPC are meant to deal with the offenders of these offences with iron hands, but with this case where the girl herself is willing to join the company of applicant and without mincing any word she has expressed her desire to join the company of applicant, to whom she considered to be her husband, then under the circumstances the rigors of law cannot come in the way. Taking into account a humanitarian and pragmatic approach to the rigors of law and keeping in view the nature of the offence, evidence on record regarding complicity of the applicant, the period of detention undergone by him, unlikelihood of early conclusion of trial and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant Ajeet Kumar Patel, who is involved in aforementioned case crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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 IPC. (iii) 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., MAY BE ISSUED AND IF 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 IPC. (iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 30.11.2022 M. Kumar Reason: Location: High Court of Judicature at Allahabad