High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41737 of 2022
Legal Reasoning
1. Learned AGA has indicated a report submitted by the Inspector of concerned police station on 29.09.2022 to submit that personal service has been effected upon the informant/ father of the victim in accordance with judgment rendered by this Court in the case of Junaid v. State of U.P. and others, reported in 2021 (6) ADJ 511. However no one has put in appearance on behalf of informant. 1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record. 2. This first bail application has been filed with regard to Case Crime No.297 of 2020, under Sections 363, 366, 376 IPC and Section 3/4 Protection of Children From Sexual Offences Act, registered at Police Station Farah, District Mathura. 3. As per contents of FIR, the minor daughter of informant was allegedly enticed away by the applicant on 05.10.2020. Certain valuables were also allegedly taken away by the daughter. 4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is submitted that the prosecutrix has not supported the prosecution version in her statements recorded under Sections 161 and 164 Cr.P.C. in which she has specifically stated that she ran away from her house since she was being compelled to marry an old person. It is submitted that the prosecutrix thereafter submitted that she subsequently met the applicant and they have married on 15.11.2020. Learned counsel has drawn attention to the statement of headmistress of the school where the prosecutrix studied to submit that the date of birth of prosecutrix as per educational record is 05.07.2004 and as such she was over 16 years of age at the relevant time. Learned counsel has drawn attention to exception 2 to Section 375 IPC to submit that sexual intercourse or acts by a man with his own wife, with the wife not being under fifteen years of age is not rape and as such Section 376 IPC has been wrongly imputed against the applicant. It is further submitted that the applicant as well as prosecutrix have married each other and as per Section 5 of the Hindu Marriage Act 1955, which is applicable in the present case, the stipulation of completion of 18 years of age at the time of marriage is clearly voidable and not void in terms of Sections 11 and 12 of the said Act. It is submitted that the present bail application was filed on 04.09.2022 and the prosecutrix herself is the deponent therein and as such the affidavit has been sworn when the prosecutrix has attained the age of 18 years and as such with the marriage being voidable has opted to continue with the marriage which would not nullify the marriage between prosecutrix and the applicant and would therefore attract the conditions of exception 2 to Section 375 IPC. It is submitted that the applicant is in jail since 08.07.2022 and the prosecutrix is left to fend for herself. In the affidavit, the prosecutrix as deponent has admitted the marriage. 5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that even as per statement of the headmistress, prosecutrix was aged just about 16 years at the time of incident and consent of minor would not have any effect whatsoever. It is submitted that once relationship between the parties is admitted, rape of minor automatically is made out. 6. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that at the time of incident, the prosecutrix was aged approximately 16 years and three months. In her statements recorded under Sections 161 and 164 Cr.P.C., prosecutrix has clearly not supported the prosecution version and has stated that she left her house of her own volition on being compelled to marry with an old person and it was thereafter that she came into contact with the applicant. At this stage, the ingredients of sections 363 and 366 IPC as such do not appear to be made out. The bail application has been filed on 04.09.2022 when the prosecutrix has attained majority and is the deponent of this bail application. The conditions of voidable marriage as indicated under Section 11 of the Hindu Marriage Act read with section 5 would indicate that marriage contracted by bride who is under 18 years of age at the time of marriage would be a voidable marriage. This aspect of the matter is required to be considered since prosecutrix herself is the deponent of the bail application which has been filed after her attaining majority. The aspect of exception 2 to Section 375 IPC also requires consideration at the stage of trial. 7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution." 8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case. 9. Accordingly bail application is allowed. 10. Let applicant, Abhishek, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being 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) 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. (iv) 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. Order Date :- 31.10.2022 Subodh/- Digitally signed by SUBODH KUMAR SINGH Date: 2022.11.03 08:33:58 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Applicant :- Abhishek Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Neeraj Srivastava,Alpika Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.