Shanu v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41941 of 2023 Applicant :- Shanu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashish Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Gaurang Kulshrestha, Advocate holding brief of Mr. Ashish Kumar, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Shanu seeking his enlargement on bail in Case Crime No.0473 of 2022, under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Link Road, district Ghaziabad, during the pendency of trial. Perused the record. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon the first informant-opposite party-2 on 26.09.2023. 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. Record shows that in respect of an incident which is alleged to have occurred on 11.12.2022, a delayed F.I.R. dated

15.12.2022 was lodged by first informant, namely, Shiv Kumar (father of the prosecutrix) and was registered as Case Crime No.0473 of 2022, under Sections 366 IPC, police station Link Road, district Ghaziabad. In the aforesaid F.I.R., the applicant Shanu has been nominated as solitary named accused. The gravamen of the allegations made in the F.I.R. dated

15.12.2022 is to the effect that the named accused Shanu i.e applicant herein enticed away the daughter of the first informant i.e. prosecutrix, namely, 'X' aged about 18 years. After aforementioned F.I.R. was lodged, the Investigating OfÏcer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 01.04.2023. Thereafter, the statements of the prosecutrix were recorded under Section 161/164 CrPC, which are on record at page 26 and 29 of the paper book respectively, wherein she has not supported the F.I.R. The prosecutrix has further stated that she has solemnized marriage with the applicant. However, irrespective of above, the Investigating OfÏcer submitted charge-sheet dated 18.05.2023, whereby applicant has been charge-sheeted under Sections 363, 366, 376 IPC and Section 3/4 Pocso Act, police station Link Road, district Ghaziabad. Learned counsel for the applicant contends that though applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. According to the learned counsel for applicant the prosecutrix in her statements under Section 161/164 CrPC has not supported the F.I.R. The prosecutrix is a willing and consenting party. She has categorically stated in her aforesaid statements that she herself willingly accompanied the applicant and has thereafter solemnized marriage with the applicant. It is on account of above that physical relations were established between the parties. On the basis of above, he submits that since the prosecutrix in her aforesaid statements has remained clear, categorical and consistent therefore, no prosecution of the applicant can be maintained on the basis of same. It is thus urged that no offence as complained of can be said to have been committed by the applicant. It is further contended by the learned counsel for applicant that it is an undisputed fact that the prosecutrix has solemnized marriage with the applicant. According to the learned counsel for applicant though the prosecutrix was below 18 years of age on the date of her marriage with the applicant, inasmuch as, the date of birth of the prosecutrix recorded in the High School Certificate is 25.07.2005, whereas the occurrence giving rise to the present criminal proceeding occurred on 11.12.2022, as such the prosecutrix was aged about 17 years 04 months and 16 days on the date of occurrence. However, simply on the above ground the marriage of the prosecutrix 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, 1955. However, up to this stage, nothing has emerged on record to show that the prosecutrix has initiated any proceeding for declaration of her marriage with the applicant as void. Consequently, the criminality, if any, alleged against the applicant stands washed of on account of aforesaid fact. Even otherwise, the applicant is a man of clean antecedents having no criminal history to his credit except the present one. He is in jail since 06.04.2023. As such, he has undergone more than six months of incarceration. The police report under Section 173 (2) CrPC i.e. charge-sheet has already been submitted against the applicant therefore, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. It is thus urged that the 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. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named/charge-sheeted accused therefore, he does not deserve any indulgence by this court. He further submits that since the prosecutrix is below 18 years of age therefore, her consent, if any, is immaterial. He, therefore, submits that no sympathy be shown by this Court in favour of the applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that the prosecutrix in her statements recorded under Sections 161/164 CrPC has not supported the F.I.R., the prosecutrix is a willing and consenting party, as per the admitted case of the prosecutrix she herself accompanied the applicant, the prosecutrix has categorically stated that she has solemnized marriage with the applicant, in view of above the criminality if any committed by the applicant stands washed of, though the prosecutrix was below 18 years of age on the date of marriage but simply on that account the marriage of the prosecutrix 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, 1955, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, in spite of the fact that the charge-sheet has been submitted against applicant and therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal and Another Vs. State of Maharashtra and Another 2023 LiveLaw (SC) 373 (paragraph 5), the clean antecedents of the applicant, the period of incarceration undergone therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but, without making any comments on the merit of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Shanu, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 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 counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against him under section 229-A I.P.C.

(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., may be issued and if 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 I.P.C.

(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 sufÏcient 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 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. 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 :- 16.10.2023. Rks. High Court of Judicature at Allahabad