High Court · 2025 on 25 Apr 2025

Order

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1. Sri Rahul Srivastava, the learned counsel for the applicant, Sri Jayant Singh Tomar, the learned AGA-I for the State and Sri Ajay Kumar alias Golu @ Sanjay, the appliant and Smt. Khaitunisha, the prosecutrix are present in person. The prosecutrix has been produced before this Court in person from Rajkiya Balika Grih, Sindhi Khera, Para, Lucknow

2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 67/2024, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Kotwali Tanda, District Ambedkar Nagar.

3. The aforesaid case has been registered on the basis of an FIR lodged on 19.03.2024 stating that the applicant had enticed away the informant's daughter aged 15 years on 16.03.2024 and she had taken some gold jewelry with her.

4. The applicant was granted interim bail by means of following order passed on 14.11.2024:- "Heard. Supplementary affidavit filed today is taken on record. This Court has passed the order dated 24.10.2024, which reads as under:-

Heard Sri Rahul Srivastava, learned counsel for the applicant and Sri Sani Pratap Singh, learned A.G.A. for the State. Page No.1 of 10 Learned counsel for the applicant has submitted that the applicant is in jail since 22.07.2024 in Case Crime No. 67 of 2024, under Section 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station- Kotwali Tanda, District- Ambedkar Nagar. Learned A.G.A. has informed that notice has been served upon opposite party No. 2 on 07.10.2024, however, no one has appeared on behalf of opposite party No. 2. Learned counsel for the applicant has stated that the prosecutrix has got married with the applicant, however, presently, she is living in Shri Ram Audhyogik Anathalaya, Sector- I, Aliganj, Lucknow. He has further submitted that the present applicant is willing to live with the prosecutrix but the family members of the prosecutrix is not permitting her to live her with the applicant. List this case on 14.11.2024. On that date, the complainant and the prosecutrix shall appear in person before the Court. The Station House Officer, Police Station- Kotwali Tanda, District- Ambedkar Nagar shall ensure the presence of the complainant. The Superintendent/ In-charge of the Shri Ram Audhyogik Anathalaya, Sector- I, Aliganj, Lucknow shall ensure the presence of the presence of the prosecutrix on the next date fixed. Learned A.G.A. shall intimate this order to the Station House Officer, Police Station- Kotwali Tanda, District- Ambedkar Nagar telephonically/ through e-mode/ through WhatsApp etc within 48 hours for necessary compliance of this order. The Registry of this Court shall apprise this order to the Superintendent/ In-charge of the Shri Ram Audhyogik Anathalaya, Sector- I, Aliganj, Lucknow telephonically/ through e-mode/ through WhatsApp etc within 48 hours for necessary compliance of this order. " In compliance of the aforesaid order, the prosecutrix (X) as well as the informant/complainant, namely, Sri Ulfat Ali, who is the father of the prosecutrix along with Constable, Sri Mahendra Yadav from Kotwali Tanda, Ambedkar Nagar and Mahila Head Constable, Ms. Ravindra Pathak from Reserve Police Lines are present in person. Page No.2 of 10 The lady head constable has informed the Court that she has brought the prosecutrix from Raj Balika Grih Sindhi Kheda Para, Lucknow where the prosecutrix has been living presently. Learned counsel for the applicant has demonstrated the statement of prosecutrix which has been filed along with supplementary affidavit, wherein, no allegation as to any kind whatsoever has been levelled against the present applicant. The prosecutrix (X) has submitted that she has already got married with the present applicant in one Hindu temple as per Hindu ritual, though, she is a Muslim girl. She has also submitted that she has got married in a Court also, but no such proof has been shown. She has stated that since she has married with one Hindu person, therefore, his father and other family members have not accepted that marriage, so she is living in Raj Balika Grih Sindhi Kheda Para, Lucknow. She has further submitted that she is willing to live with the applicant. She has stated that she is a major girl aged about 18 years, therefore, she can take any decision in respect of her life. She has not studied in any educational institution, therefore, she is not having any educational documents. Learned counsel for the applicant has stated that as per her radiological age (Annexure No. SA-IV), the Chief Medical Officer, Ambedkar Nagar has determined her age as 16-17 years on 16.04.2024, however, the prosecutrix has again insisted that she has already attained the age of 18 years. The complainant/informant who is also present in the court has stated that if his daughter is saying that she has already got married with the present applicant and she is willing to live with him, he has nothing to say as he has broken all his relation with her. The learned AGA has stated that this is a case where the applicant is a Hindu by religion and prosecutrix is Muslim by religion, therefore, their valid marriage can be done under Special Marriages Act inasmuch as there is no provision of conversion in the Hindu religion. However, if she has got married in one temple and willing to live with the present applicant, she may do so, if she has already attained the marriageable age. Having heard the learned counsel for the parties and having persued the material available on record and also hearing the parties who are present in person, it appears that so as to protect the life of the prosecutrix for future, the applicant may marry with the prosecutrix under Special Marriages Act, for that he may be granted interim bail for the period of four months. Let, the applicant-Ajay Kumar @ Golu @ Sanjay be released on interim bail for a period of four months, to be more precise, till Page No.3 of 10 2nd April 2025, in the aforesaid case crime number on his furnishing a personal bond and two sureties of Rs.20,000/- each. As soon as the present applicant is released from jail, he shall file his appropriate application for getting custody of the prosecutrix and such application may be decided with expedition. After getting custody of the prosecutrix, he shall take necessary steps to get married with the prosecutrix under Special Marriages Act and after getting married under such provision of law, he shall get the marriage registered before the registering authority. On the next date, the applicant along with the prosecutrix shall appear in person along with the proof of marriage and marriage registration certificate. In the meantime, he shall cooperate in the trial proceeding and shall not miss use the liberty of interim bail. Further, the police personnel who have brought the prosecutrix from Raj Balika Grih Sindhi Kheda Para, Lucknow shall handover the custody of the prosecutrix to Raj Balika Grih Sindhi Kheda Para, Lucknow. Learned counsel for the applicant has submitted that he shall explain the order to the applicant properly so that the direction of this Court could be complied with. Besides the aforesaid conditions, the applicant shall follow the following conditions during the period of interim bail:- (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 applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court Page No.4 of 10 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. Considering the conduct of the applicant, the bail application may be disposed of finally on the next date.

2. The applicant and the prosecutrix had appeared before this Court on 02.04.2025 on which date the following order was passed:- "1. Case called out.

2. The applicant Ajay Kumar @ Golu @ Sanjay and the prosecutrix Khaitulnisha have appeared in person before this Court in compliance of the order dated 14.11.2024 passed by this Court. Both of them unequivocally stated that they have married each other. The prosecutrix stated that she is residing with the applicant, who has been enlarged on interim bail by means of the order dated 14.11.2024 passed by this Court. The parties have applied for their marriage under Special Marriage Act on 07.02.2025.

3. In view of the aforesaid statement, it would be appropriate that some further time be granted to the parties for getting their marriage done under Special Marriage Act.

4. List this case on 16.04.2025.

5. The Special Marriage Officer, Basti is directed to submit a report to this Court through Government Advocate regarding proceedings/ action taken on the application No. 583/2025 filed by the applicant for his marriage with the prosecutrix under Special Marriage Act. Page No.5 of 10

6. This order shall be communicated to the Special Marriage Officer by the learned Additional Government Advocate.

7. The interim order granted earlier shall continue to remain in force till the next date of listing. The learned counsel for the applicant is granted liberty to make a mention for taking up the case out of turn on the next date. The applicant and the prosecutrix shall appear in person on the next date also.

8. All the concerned administrative authorities shall render due assistance in completion of the proceedings expeditiously. "

6. When the case was taken on 02.04.2025, the learned AGA informed that the order dated 02.04.2024 was communicated to the Special Marriage Officer through fax on 03.04.2025. He produced a letter dated 15.04.2025 sent by the Additional District Magistrate, Basti stating that the aforesaid order dated 02.04.2025 came to his knowledge through fax received at 05:03 p.m. on 15.04.2025 and he has sought a week's additional time for submitting a status report.

7. Today, when the matter has been taken up, the learned AGA has filed a counter affidavit of officer incharge of bail desk. He has filed another counter affidavit of the Chief Revenue Officer, Basti stating that the Lekhpal has submitted a report stating that the prosecutrix's family members have stated that she is a minor and they are not agreeable of her marriage with the applicant. However, the Chief Revenue Officer has not stated anything whether the marriage between the applicant and the prosecutrix has been registered or whether their application for registration of marriage has been rejected.

8. It appears that the Special Marriage Officer, Basti and the Chief Revenue Officer, Basti are are trying to mislead this Court by not placing correct facts before this Court.

9. Before passing any order in view of the aforesaid conduct of the Special Marriage Officer, Basti and the Chief Revenue Officer, Basti it would be appropriate that they be granted an opportunity to give an explanation to this Court by appearing before this Court in person day after tomorrow i.e. 25.04.2025.

10. Accordingly, list this case on 25.04.2025 at 02:15 p.m. Page No.6 of 10

11. The applicant and the prosecutrix who have present in person before this Court need not appear in person on the next date and they shall remain represented through their counsel.

2. Sri Kirti Prakash Bharti, Special Marriage Officer, Basti has appeared in person in compliance of order dated 23.04.2025. He has filed a counter affidavit stating that Section 4 of the Special Marriage Act, 1954 provides the general procedure for procuring information from Sub Divisional Officer, Sadar and Station House Officer concerned. He has quoted Section 4 of the Special Marriage Act in the affidavit referring to as Clause 4 of the Special Marriage Act, which is as follows:- "4. Conditions relating to solemnization of special marriages-Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely: (a)neither party has a spouse living; (b)neither party- (i)is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (ii)though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the protection of children; or (iii)has been subject to recurrent attacks of insanity; (c)the male has completed the age of twenty-one years and the female the age of eighteen years; (d)the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage Page No.7 of 10 may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and (e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends."

3. A perusal of Section 4 of the Special Marriage Act indicates it nowhere provides for procuring information from Sub Divisional Officer, Sadar and Station House Officer concerned. However, the Special Marriage Officer has obtained information from Sub Divisional Officer, Sadar, Basti and Superintendent of Police. In response to the letters sent to the aforesaid authorities, Lekhpal concerned has given information to the Sub Divisional Officer that parents of the victim stated that she is unmarried and her date of birth mentioned in Aadhar card is 01.10.2008. Parents of the victim are not agreeable to her marriage with the applicant. Sub Inspector of Police Station Kalwari has submitted a report to the Sub Divisional Officer stating that the victim is unmarried and she is uneducated. However, her Aadhar card mentions her date of birth as 01.10.2008. It is also mentioned in the report that both the applicant and the victim come from different communities due to which there is resentment in persons of both the communities. The father of the victim has stated that he is not agreeable with the marriage. The Sub Inspector has also stated that as both the persons belong to different communities, their marriage will have an adverse impact on the public at large. The order dated 23.04.2025 passed by the Sub Divisional Officer has been annexed with the affidavit wherein he has stated that as the parties have not attained the requisite age, the application for their marriage was not maintainable and, accordingly, the same has been dismissed.

4. The Court put a specific question to the Sub Divisional Officer present in the court as to what is the relevant provision for ascertaining the age of the applicant for special marriage, Page No.8 of 10 whereupon he could not point out any specific provision and he merely stated that generally officers seek a report from the police and from the revenue department. In response to a specific query put by the Court that when the victim has given an affidavit stating that she is 19 years of age and she has also given an application that her age be ascertained by radiological examination, why did he not pass suitable orders thereon, the officer could not give any answer.

5. It appears that Sri Kirti Prakash Bharti, Special Marriage Officer, Basti is not well acquainted with the provisions concerning performance of his duties and he has appeared before the Court without making any preparation so as to provide proper assistance to the Court. The failure of the officer to take into consideration the age stated by the victim on oath and to take into consideration and pass appropriate orders on her application requesting for conducting her radiological examination for ascertaining her age indicates a failure on the part of the officer concerned to perform his duties in a reasonable manner.

6. In these circumstances, the Court is left with no option except to bring this conduct of Sri Kirti Prakash Bharti, Special Marriage Officer, Basti in knowledge of the Chief Secretary of the State so that appropriate action be taken to prevent recurrence of similar mistakes by the officer concerned.

7. The interim bail granted to the applicant vide order date

4.11.2024 is made absolute.

8. The bail application stands allowed in terms of the interim order dated 14.11.2024.

9. The applicant and the victim shall have the liberty to take appropriate steps for redressal of their grievance against the order Page No.9 of 10 dated 23.04.2025 passed by the Special Marriage Officer, a copy whereof has been annexed with the counter affidavit. Aadhar card is not a conclusive proof of age and when the victim has given an affidavit regarding her age and has requested for determination of her age by radiological examination, suitable order ought to have been passed thereon.

10. Let a copy of this order be forwarded to the Chief Secretary, State of U.P. and District Magistrate, Basti for information and necessary action. [Subhash Vidyarthi, J.] Order Date :- 25.4.2025 Pradeep/- Page No.10 of 10 PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench