High Court
Case Details
Neutral Citation No. - 2023:AHC:189927 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38744 of 2023 Applicant :- P.K. @ Anuj Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anurag Yadav,Mahendra Pratap Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
1. Heard Mr. Anurag Yadav, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. This application for bail has been filed by applicant-P.K. @ Anuj, seeking his enlargement on bail in Case Crime No. 134 of 2023, under Sections 363, 376 IPC and Sections 3/4 POCSO Act, Police Station-Ramala, District-Baghpat during the pendency of trial. 4. At the very outset, the learned A.G.A. submits that notice of the present application for bail has been served upon first informant- opposite party 2 on 01.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant- opposite party 2 to oppose this application for bail. 5. Record shows that in respect of an incident, which is alleged to have occurred on 14.05.2023, a delayed FIR dated 18.05.2023 was lodged by first informant-Sushil (brother of the prosecutrix) and was registered as Case Crime No. 134 of 2023, under Section 363, Police Station-Ramala, District-Baghpat. In the aforesaid FIR, 4 persons namely - (1) P.K. (applicant herein), (2) Sunil, (3) Sachin and (4) Chhotu have been nominated as named accused whereas an unknown person has also been arraigned as accused. 6. The gravamen of the allegations made in the FIR to the effect that named accused-P.K. along with other named accused enticed away sister of the first informant namely X aged about 17 years on 14.05.2023 in night. 7. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 27.07.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 28 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, she has stated that she herself went to the applicant and thereafter accompanied him to Haryana. Thereafter, the prosecutrix was requested for her internal medical examination which was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Copy of the same is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 Cr.P.C. 8. During course of investigation, Investigating Officer recovered the date of birth of the prosecutrix as recorded in the High School Certificate which is 06.04.2006. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 14.05.2023. As such, the prosecutrix was aged about 17 years, 1 month and 8 days on the date of lodging of the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 04.08.2023 whereby applicant has been charge sheeted under Section 363, 376 IPC and Sections 3/4 POCSO Act. 9. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Attention of Court was then invited to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. On the basis of above, he submits that the prosecutrix is a willing and consenting party. The prosecutrix has not supported the FIR. The prosecutrix has herself came to the applicant and thereafter joined him. As such, no offence under Section 363 IPC i.e. kidnapping/abduction can be said to have been committed by the applicant. With reference to the other material on record, the learned counsel for applicant submits that it is an admitted case of the prosecutrix that she has solemnized marriage with the applicant. On account of above, the parties came into cohabitation and were residing together as husband and wife. As such, no offence under Section 376 IPC and Sections 3/4 POCSO Act can be said to have been committed by the applicant. In fact, once the prosecutrix solemnized marriage with the applicant then criminality, if any, committed by the applicant stands washed out. Even though, the prosecutrix was below 18 years of age on the date of her marriage with the applicant yet the marriage of the prosecutrix with the applicant shall not be void but voidable at the instance of the prosecutrix by virtue of the provisions contained in Section 11(2) of the Hindu Marriage Act. No proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void. 10. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 29.07.2023. As such, he has undergone more than 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Since it is an established fact that the prosecutrix is below 18 years of age, therefore, her consent, if any, is immaterial. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that the prosecutrix in her statements under Sections 161/164 Cr.P.C. has not supported the FIR, there is no medical evidence in support of the ocular version inasmuch as, the prosecutrix has herself refused for her internal medical examination, the prosecutrix was aged about 17 years, 1 month and 8 days on the date of occurence as per the date of birth of the prosecutrix recorded in the High School Certificate i.e. 06.04.2006, prima-facie, the prosecutrix is a willing and consenting party, even though, the prosecutrix was below 18 years of age on the date of occurrence yet her marriage with the applicant shall not be void but voidable at the instance of the prosecutrix alone by virtue of the provisions contained in Section 11(2) of the Hindu Marriage Act, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. could not point out from the record any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objection raised by the learned A.G.A. in opposition to the present application for bail but without making any comments on the merits of the case, applicant has made out a case for bail. 13. Accordingly, the bail application is allowed. 14. Let the applicant-P.K. @ Anuj, be released on bail in the aforesaid case crime number 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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 IN SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, 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 THE HIM/HER 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. 15. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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. Order Date :- 3.10.2023 Vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad