Ravi Katheriya v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39000 of 2023 Applicant :- Ravi Katheriya 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. Heard Mr. Manoj Kumar Srivastava, the learned counsel for applicant, the learned A.G.A. for State. Perused the record. This bail application has been filed by the applicant Ravi Katheriya seeking his enlargement on bail in Complaint Case No. 245 of 2023, under Sections 363, 366 376 IPC, and Sections 3/4

(2) Protection of Children From Sexual Offence Act, P.S. Gursahayganj, District Kannauj during the pendency of trial. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant opposite party 4 on 6.9.2023. In spite of service of notice, no one has put in appearance on behalf of first informant opposite party 4 to oppose this application for bail. Record shows that in respect of an incident, which is alleged to have occurred on 21.4.2023, a delayed F.I.R. dated 22.4.2023 was lodged by first informant Nand Kishore (father of prosecutrix) and was registered as Case No. 245 of 2023, under Sections 363, 366, 120B IPC, P.S. Gursahayganj, District Kannauj. In the aforesaid F.I.R., 2 persons namely Ravi (applicant herein) and Reena Devi have been nominated as named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused enticed away the daughter of first informant i.e. prosecutrix aged about 15 years on 21.4.2023 around 2 p.m. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused, inasmuch as the charge sheet has been submitted against applicant on 22.5.2023, yet he is liable to be enlarged on bail. As per the medical opinion, the prosecutrix is said to be below 17 years of age. The prosecutrix in her statements under Sections 161 and 164 Cr. P. C. has categorically stated that she has solemnized marriage with the applicant. With reference to above, it is thus urged by the learned counsel for applicant that once the prosecutrix has solemnized marriage with the applicant, therefore, the criminality, if any, alleged against applicant stands washed of. Even though, the prosecutrix was below 18 years of age on the date of her marriage with the applicant, however, 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 Hindu Marriage Act. Upto this stage, no proceedings has been initiated by the prosecutrix for declaration of her marriage with the applicant as void. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 06.05.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173

(2) Cr. P. C. i.e. charge sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, submits 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 opposed the prayer for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the Court at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that as per the medical opinion, the prosecutrix is said to be below 17 years of age, the prosecutrix in her statements under Sections 161 and 164 Cr. P. C. has categorically stated that she has solemnized marriage with the applicant, once the prosecutrix has solemnized marriage with the applicant, therefore, the criminality, if any, alleged against applicant stands washed of, even though, the prosecutrix was below 18 years of age on the date of her marriage with the applicant, yet the marriage of the prosecutrix with the applicant shall not be void but voidable at the instance of the prosecutrix alone, no proceedings has 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. i.e. charge sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, however, upto this stage the learned A.G.A. and the learned counsel representing first informant could not point 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., in opposition to present application for bail but without making any comments on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Ravi Katheriya 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 sufficient 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 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 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 :- 7.11.2023 HSM High Court of Judicature at Allahabad