77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48643 v. Ranchu @ Ranshu @ Raj Bahadur) under Sections 363

Aarushi Khare, the learned counsel representing opposite party-4, High Court Legal Services Committee, High Court Allahabad.

3. Perused the record.

4. This repeat application for bail has been filed by applicant- Ranchu @ Ranshu @ Raj Bahadur seeking his enlargement on bail in Case Crime No. 133 of 2022 under Sections 363, 366, 376(3), 504 I.P.C., Sections 5/6 POCSO Act and Section 3 (2) 5 SC/ST/ Act, Police Station-Baharia,, District-Prayagraj, during the pendency of trial i.e. Special Sessions Trial No. 288 of 2022 (State Vs. Ranchu @ Ranshu @ Raj Bahadur) under Sections 363, 366, 376(3), 504 I.P.C., Sections 5/6 POCSO Act as well as Section 3 (2) 5 SC/ST/ Act, Police Station-Baharia,, District-Prayagraj now pending in the Court of Additional District Judge, POCSO Act-Ist, Allahabad.

5. At the very outset, the learned A.G.A. submits that notice of present repeat application for bail has been served upon first informant/opposite party-2 on 07.11.2023. However, inspite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose this repeat application for bail.

6. The first bail application of applicant was rejected by this Court by a detailed order dated 22.11.2022 passed in Criminal Misc. Bail Application No. 52799 of 2022 (Ranchu @ Ranshu @ Raj Bahadur Vs. State of U.P. and 3 others). For ready reference, the order dated 22.11.2022 is reproduced herein under: "Heard Mr. Arif Iqbal, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed applicant Ranchu @ Ranshu @ Raj Bahadur seeking his enlargement on bail in Case Crime No. 133 of 2022, under sections 363, 366, 376(3) and 504 IPC and 5/6 POCSO Act and 3 (2) (5) SC/ST Act, Police Station- Baharia District Prayagraj during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 16.6.2022 a belated F.I.R. dated 28.6.2022 was lodged by first informant Sita Devi Harijan which was registered as Case Crime No. 133 of 2022, under sections 363, 366, 376(3) and 504 IPC and 5/6 POCSO Act and 3 (2)(5) SC/ST Act, Police Station- Baharia District Prayagraj. In the aforesaid F.I.R. one person namely, Ranshu Bind i.e. applicant herein has been nominated as named accused, whereas one unknown person has also been arraigned as an accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Ranshu Bind enticed away the minor daughter of first informant namely, Kajal aged about 14 years. After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Investigating Officer first examined the first informant under section 161 Cr.P.C, who has supported the prosecution story as unfolded in the F.I.R. Prosecutrix was recovered on 3.8.2022. Thereafter the statement of prosecutrix was recorded by Investigating Officer under section 161 Cr.P.C. wherein she has not supported the F.I.R. To the contrary, the prosecutrix has stated that she herself went with the applicant out of her own sweet will and subsequently performed marriage with applicant willingly. Prosecutrix has also stated that she is aged about 19 years. According to learned A.G.A. subsequent to above, prosecutrix was requested for her medical examination, wherein she agreed only for her ossification test i.e. medical determination of age. As per medical opinion, Prosecutrix was aged above 16 years and below 19 years. Thereafter the statement of prosecutrix was recorded under section 164 Cr.P.C. wherein she has not only rejoined her earlier statement under section 161 Cr.P.C. but has further stated that on account of cohabitation with the applicant she has come in family way and is continuing with the same for the last one month. Investigating Officer examined other witness under section 161 Cr.P.C. who have also supported the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, which is substantially adverse to applicant, he opined to submit charge sheet. Accordingly Investigating Officer submitted the charge sheet dated 24.8.2022. whereby applicant has been charge-sheeted under sections 363, 366, 376(3) and 504 IPC and 5/6 POCSO Act and 3 (2) (5) SC/ST Act. Learned counsel for applicant contends that applicant is a named as well as charge sheeted accused but he is innocent. Referring to the statements of the prosecutrix as recorded under sections 161/164 Cr.PC., he submits that prosecutrix is a willing and consenting party. As such, no offence as complained of against applicant is made out. There is no medical evidence to corroborate the offence alleged. It is further contended that since prosecutrix is a willing and consenting party and she herself came to applicant willingly and on account of which she is now in family way., no criminality as alleged can be said to have been committed by applicant. Aforesaid situation has emered on account of the prosectutrix having solemnized marriage with applicant. Thereafter, the prosecutrix entered into physical relation with the applicant willingly. There is nothing on record to show any deliberate and forceful act of applicant. As such, it cannot be inferred that applicnat has dislodged the modesty of prosecutrix. According to learned counsel for applicant the prosecutrix was below 18 years of age on the date of her marriage with applicant, but the same shall not render the marriage as void but voidable at the instance of the other party. However, there is nothing on record to show that proceedings for declaration of marriage of prosecution with applicant as void have been initiated by the other party. It is lastly contended that 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 12.8.2022. As such, he has undergone more than three months of incarceration. In case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A has opposed this application. Learned A.G.A. submits that during course of investigation, Investigating Officer recovered the certificate of the Principal of the institution where the prosecutrix studied first. The said certificate is dated 3.8.2022 issued by primary school. As per the aforesaid certificate, the date of birth of the prosecutrix as recorded in school record is 3.11.2008. As such on the date of occurrence i.e. 16.6.2022, the prosecutrix was aged about 13 years and 7 months i.e. below 15 years of age. Placing reliance upon judgement of Supreme Court in X(Minor) Vs. State of Jharkhand MANU/SCOR/26579/2022 he submits that consent of the minor/prosecutrix is immaterial and no benefit can be derived from the same. Reference is also made to Section 6 of POCSO Act. Applicant is guilty of dislodging the modesty of young girl who is of tender age i.e. 13 years and 7 months. As such applicant does not deserve any indulgence by this Court When confronted with above, the learned counsel for applicant could not over come the same. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that as per the certificate of the Principal of the institution where the prosecutrix studied first, the prosecutrix was aged about 13 years and 7 months on the date of occurrence, there being nothing on record to rebut the same by virtue of judgement of Supreme Court in X(Minor) (Supra) the alleged consent of prosecutrix is immaterial, but without making any comment on the merits of the case, no case for grant of indulgence by this Court is made out. In view of above, present application fails and is liable to be rejected. It is accordingly rejected. Order Date :- 22.11.2022 "

7. Learned counsel for applicant contends that the charge sheet was submitted against applicant on 24.08.2022. Thereafter, charges were framed against applicant by court below vide framing of charge order dated 22.12.2022. However, in spite of the fact the a period of more than one year and five months has expired even the complete statement of P.W.-1 i.e first informant has not yet been recorded. Attention of the Court was then invited to the provisions contained in Section 35 of POCSO Act, wherein there is a clear mandate that the statement of prosecutrix must be recorded within a period of one month. It is thus urged by the learned counsel for applicant that since the prosecution itself is not diligent in pursuing the trial therefore the liberty of the applicant is not liable to be curtailed. Learned counsel for applicant has invited the attention of Court to the judgement of Apex Court in in A.R. Antulay Vs. R. S. Nayak (1992) 1 SCC 225. On basis thereof he submits that the right to speedy trial is now recognized as a fundamental right of an accused. Since the applicant is in jail therefore it cannot be said the applicant is responsible for the delay in progress of trial. With reference to above he submits that since an accused has the right to speedy trial and the said right of the accused/applicant stands infringed on account of the lackadaisical approach of the prosecution, therefore, applicants are liable to be enlarged on bail.

8. 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 custody since 12.08.2022. As such he has undergone approximately one year and 9 months of incarceration. The police report (charge-sheet) 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 crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, 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.

9. Per contra, the learned A.G.A. has opposed the prayer for bail. He has invited the attention of Court to the order sheet of pending sessions trial before court below. With reference to above, the learned A.G.A. contends that examination in chief of P.W.-1, i.e. the prosecutrix could not be completed as the counsel for accused- applicant himself did not appear before court below. It is thus contended that in view of above it cannot be said that the prosecution is not diligent in pursuing the trial nor it can be said that there is lackadaisical approach on the part of the prosecution in pursuing the trial. Attention of the Court was then invited to the order dated 22.11.2022 passed by this Court wherein it is recorded that on the date of occurrence the prosecutrix, who is a young girl was aged about 13 years and 7 months. On the above premise, the learned A.G.A. contends that considering the nature and gravity of offence and the period of sentence provided for an offence under Section 5/6 POCSO Act, present repeat application for bail is liable to be rejected by this Court.

10. When confronted with above, the learned counsel for applicant could not overcome the same.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that objections raised by the learned A.G.A. in opposition of this repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the submissions raised by the learned counsel for applicant in support of present repeat application for bail but without expressing any opinion on the merits of the case, this court finds that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.

12. As a result, present repeat application for bail fails and is liable to be rejected.

13. It is accordingly rejected. Order Date :- 16.5.2024/YK YASHWANT KUMAR High Court of Judicature at Allahabad