High Court · 2025

1. Heard Sri Avinash Singh Vishen, learned counsel for the applicant and learned A.G.A. for the State.

2. This Court has passed an order on 06.01.2025 which reads as under:- "1. Heard Shri Avinash Singh Vishen, learned counsel for the applicant and Shri Bhanu Pratap Singh, learned A.G.A. for the State.

2. Learned A.G.A. has informed that notice has been given to opposite party no.2 but no one has appeared on behalf of opposite party no.2.

3. As per learned counsel for the applicant, the present applicant is in jail since 17.10.2024 in Case Crime/ FIR No. 0161 of 2024, under Sections 137(2), 87, 64 of BNS and Section 5 & 6 of POCSO Act, Police Station Gadaganj, District Raebareli.

4. Learned counsel for the applicant has submitted that the present applicant has got married with the prosecutrix but her parents are not permitting the prosecutrix to live with the applicant.

5. Attention has been drawn towards the statement of the prosecutrix recorded under Section 183 of BNSS, wherein she has stated this fact so as to verify the aforesaid facts, the appearance of the prosecutrix as well as the complainant/ informant would be required on the next date.

6. List this case on 22.01.2025. On that date, the prosecutrix and the informant shall appear in person.

7. SHO Police Station Gadaganj, District Raebareli shall ensure the presence of the aforesaid persons on the next date.

8. Learned A.G.A. shall intimate this order to the SHO concerned for its compliance."

3. In compliance of the aforesaid order, the prosecutrix (X) along with her mother namely Smt. Sanju are present in person.

4. Mr. Ajay Kumar, Sub Inspector and Ms. Jyoti Devi, Lady Constable, Police Station- Gadaganj, District- Raebareli have ensured the presence of the prosecutrix and her mother.

5. The prosecutrix has stated before this Court that she is not ready to live with the applicant and the statement recorded under Section 183 BNSS before the Magistrate was not correct as she had not married with the applicant. She stated that she was fed up with the behaviour of her parents, therefore, on a fateful day, she left her house and went away with the applicant and they stayed at various places for about four months. The mother of the prosecutrix has also stated that she is not ready to get her daughter married with the applicant as the applicant is not a good person and he belongs to another caste.

6. Learned counsel for the applicant has submitted that the prosecutrix is retracting her own statement given before the Magistrate while recording her statement under Section 183 BNSS and she has lived with he applicant for about four months without any protest. He stated that since this is a case of mutual consent, therefore, the applicant may be enlarged on bail. Learned counsel for the applicant stated that the applicant has no prior criminal history of any kind whatsoever.

7. Learned counsel has further stated that the applicant undertakes that if he is enlarged on bail, he shall co-operate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail.

8. Learned A.G.A. has, however, opposed the prayer for bail by submitting that since the prosecutrix has not attained the marriagable age as she is under 18 years of age, therefore, her consent has no meaning and hence the FIR has been lodged under POCSO Act along with other relevant sections therefore any appropriate order may be passed to protect the interest of the prosecutrix.

9. Therefore, without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that prosecutrix is retracting her own statement given before the Magistrate while recording her statement under Section 183 BNSS and she left her house and went away with the applicant by her own free will and has lived with he applicant for about four months without any protest; this seems to be a case of mutual consent, the applicant has no prior criminal history of any kind whatsoever and the undertaking of the applicant that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail.

10. Accordingly, the bail application is allowed.

11. Let the applicant- Ankit 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:- (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. (v) The applicant shall not leave India without previous permission of the court. (Rajesh Singh Chauhan,J.) Order Date :- 22.1.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Avinash Singh Vishen, learned counsel for the applicant and learned A.G.A. for the State.

2. This Court has passed an order on 06.01.2025 which reads as under:- "1. Heard Shri Avinash Singh Vishen, learned counsel for the applicant and Shri Bhanu Pratap Singh, learned A.G.A. for the State.

2. Learned A.G.A. has informed that notice has been given to opposite party no.2 but no one has appeared on behalf of opposite party no.2.

3. As per learned counsel for the applicant, the present applicant is in jail since 17.10.2024 in Case Crime/ FIR No. 0161 of 2024, under Sections 137(2), 87, 64 of BNS and Section 5 & 6 of POCSO Act, Police Station Gadaganj, District Raebareli.

4. Learned counsel for the applicant has submitted that the present applicant has got married with the prosecutrix but her parents are not permitting the prosecutrix to live with the applicant.

5. Attention has been drawn towards the statement of the prosecutrix recorded under Section 183 of BNSS, wherein she has stated this fact so as to verify the aforesaid facts, the appearance of the prosecutrix as well as the complainant/ informant would be required on the next date.

6. List this case on 22.01.2025. On that date, the prosecutrix and the informant shall appear in person.

7. SHO Police Station Gadaganj, District Raebareli shall ensure the presence of the aforesaid persons on the next date.

8. Learned A.G.A. shall intimate this order to the SHO concerned for its compliance."

3. In compliance of the aforesaid order, the prosecutrix (X) along with her mother namely Smt. Sanju are present in person.

4. Mr. Ajay Kumar, Sub Inspector and Ms. Jyoti Devi, Lady Constable, Police Station- Gadaganj, District- Raebareli have ensured the presence of the prosecutrix and her mother.

5. The prosecutrix has stated before this Court that she is not ready to live with the applicant and the statement recorded under Section 183 BNSS before the Magistrate was not correct as she had not married with the applicant. She stated that she was fed up with the behaviour of her parents, therefore, on a fateful day, she left her house and went away with the applicant and they stayed at various places for about four months. The mother of the prosecutrix has also stated that she is not ready to get her daughter married with the applicant as the applicant is not a good person and he belongs to another caste.

6. Learned counsel for the applicant has submitted that the prosecutrix is retracting her own statement given before the Magistrate while recording her statement under Section 183 BNSS and she has lived with he applicant for about four months without any protest. He stated that since this is a case of mutual consent, therefore, the applicant may be enlarged on bail. Learned counsel for the applicant stated that the applicant has no prior criminal history of any kind whatsoever.

7. Learned counsel has further stated that the applicant undertakes that if he is enlarged on bail, he shall co-operate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order, the applicant may be enlarged on bail.

8. Learned A.G.A. has, however, opposed the prayer for bail by submitting that since the prosecutrix has not attained the marriagable age as she is under 18 years of age, therefore, her consent has no meaning and hence the FIR has been lodged under POCSO Act along with other relevant sections therefore any appropriate order may be passed to protect the interest of the prosecutrix.

9. Therefore, without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that prosecutrix is retracting her own statement given before the Magistrate while recording her statement under Section 183 BNSS and she left her house and went away with the applicant by her own free will and has lived with he applicant for about four months without any protest; this seems to be a case of mutual consent, the applicant has no prior criminal history of any kind whatsoever and the undertaking of the applicant that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail.

10. Accordingly, the bail application is allowed.

11. Let the applicant- Ankit 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:- (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. (v) The applicant shall not leave India without previous permission of the court. (Rajesh Singh Chauhan,J.) Order Date :- 22.1.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench