Adarsh Srivastava v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46077 of 2023 Applicant :- Adarsh Srivastava Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manoj Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Manoj Kumar Srivastava, the learned counsel for applicant, the learned A.G.A. for State and Mr. Krishna Shankar, the learned counsel representing first informant-opposite party 2, who has put in appearance by filing his Vakalatnama in Court today, is taken on record.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Adarsh Srivastava, seeking his enlargement on bail in Case Crime No. 53 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Akbarpur, District-Kanpur Dehat during the pendency of trial.

¶4At the very outset, the learned A.G.A. contends that notice of the present application for bail has been served upon first informant-opposite party 2 on 30.10.2023. 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.

¶5Record shows that in respect of an incident, which is alleged to have occurred on 05.02.2023, a delayed FIR dated 06.02.2023 was lodged by first informant-Hukum Singh (father of the prosecutrix) and was registered as Case Crime No. 53 of 2023, under Sections 363, 366 IPC and Sections 3/4 POCSO Act, Police Station-Akbarpur, District-Kanpur Dehat. In the aforesaid FIR, applicant-Adarsh Srivastava has been nominated as solitary named accused.

¶6The gravamen of the allegations made in the FIR is to the effect that named accused enticed away the daughter of first informant i.e. the prosecutrix aged about 17 years.

¶7Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 10.08.2023 yet the applicant is liable to be enlarged on bail. The prosecutrix in her statements recorded under Sections 161/164 Cr.P.C. has not supported the FIR. As per the said statements, the prosecutrix is a willing and consenting party. The prosecutrix remained with the applicant for almost 5 months at different places. Subsequently, the prosecutrix has solemnized marriage with the applicant. Though the prosecutrix was below 18 years of age on the date of marriage inasmuch as, her date of birth as recorded in the High School Certificate is 23.08.2005. The occurring giving rise to present criminal proceedings is alleged to have occurred on 05.02.2023. Consequently, the prosecutrix was aged about 17 years and 18 days on the date of occurrence. Yet in spite of above, 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) Hindu Marriage Act. Up to this stage, no proceedings have been initiated by the prosecutrix that declaration of her marriage as void. On the above premise, the learned counsel for applicant contends that criminality, if any, committed by the applicant stands washed off.

¶8Even 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 07.07.2023. As such, he has undergone more than 3 and 1/2 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 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.

¶9Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. and the learned counsel representing first informant could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶10Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that he prosecutrix in her statements under Sections 161/164 Cr.P.C. has not supported the FIR, the prosecutrix is a willing and consenting party, the prosecutrix remained with the applicant for almost 5 months at different places, she has solemnized marriage with the applicant, as such, prima-facie, no offence as complained of can be said to have been committed by applicant, though the prosecutrix was below 18 years of age on the date of marriage yet the marriage of the prosecutrix with the appliant 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, up to this stage, 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 in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant 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.

¶11Accordingly, the bail application is allowed.

¶12Let the applicant-Adarsh Srivastava, 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 SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN 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.

¶13However, 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 :- 1.11.2023 Vinay High Court of Judicature at Allahabad