Sooraj @ Lalu v. State of U.P. and 3 Others

Court No. -65 Case :-CRIMINAL MISC. BAIL APPLICATION No. -47854 of 2023 Applicant :-Sooraj @ Lalu Opposite Party :-State Of U.P. And 3 Others Counsel for Applicant :-Vikrant Singh Parihar Counsel for Opposite Party :-G.A.,Ram Govind Hon'ble Rajeev Misra,J. Mr. Vikrant Singh Parihar, the learned counsel for applicant and the learned A.G.A. for State., Perused the record. This application for bail has been filed by applicant Sooraj @ Lalu seeking his enlargement on bail in Case Crime No. 301 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, 2012, Police Station Kamlaganj, District Farrukhabad, during the pendency of trial. At the very outset, the learned A.G.A. submits that notice of present application for bail has already been served upon first informant on 20.10.2023. 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. Record shows that in respect of an incident, which is alleged to have occurred on 17.7.2023, a delayed F.I.R. dated 19.7.2023 was lodged by first informant opposite party 2 Maya Devi (the mother of the prosecutrix) and was registered as Case Crime No. 301 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, 2012, Police Station Kamlaganj, District Farrukhabad. In the aforesaid F.I.R., applicant Sooraj @ Lalu has been nominated as solitary named accused, whereas an unknown person has also been arraigned as an accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused along with his two unknown associates enticed away the daughter of the first informant i.e. prosecutrix aged about 16 years. The F.I.R. further records that the prosecutrix took away certain gold and silver jewelry as well as Rs.50,000/-cash kept in the house. After aforementioned F.I.R. was lodged, the prosecutirx was recovered on 01.09.2023. Thereafter the statement of the prosecutrix was recorded under Section 161 Cr. P. C. The same is on record at page 45 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary the prosecutrix has stated that she was in love with applicant Sooraj @ Lalu. Thereafter, the prosecutrix has stated that she accompanied the applicant and went to Chhiubramau and thereafter to Gujarat and stayed with the applicant for about one month. The prosecutrix has further stated that she has solemnized marriage with the applicant. Thereafter, the prosecutrix was requested for her internal medical examination. The Doctor, who conducted internal medical examination of the prosecutrix, did not find any signs on her body so as to denote commission of deliberate sexual assault. The prosecutrix in her statement before the Doctor, who medically examined her has rejoined her previous statement under Section 161 Cr. P. C. However, with regard to the private part of the prosecutrix, the Doctor has opined as follows:-"Hymen Old torn, healed" Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr. P. C., wherein the prosecutrix has reiterated her previous statement. During course of investigation, Investigating Officer discovered the date of birth of the prosecutrix. As per the statement of the Principal of the institution, where the prosecutrix had studied from Class I to Class V, her date of birth recorded in the school record is 8.9.2005. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 19.7.2023. As such, the prosecutrix is said to be aged about 17 years and 9 months on the date of occurrence. Investigating Officer further examined the first informant and other witnesses under Section 161 Cr. P. C. witnesses so examined have substantially supported the F.I.R. According to learned A.G.A. the investigation is still going on. Learned counsel for applicant submits that though applicant is a named accused, yet he is liable to be enlarged on bail. With reference to the statement of the prosecutrix referred above, he submits that the prosecutrix is a willing and consenting party. Applicant cannot be said to be guilty of either kidnapping or abducting the prosecutrix. As such, no offence, under Sections 363, 366 IPC can be said to have been committed by applicant. Furthermore, the prosecutrix has solemnized marriage with the applicant. As such, the criminality, if any, committed by the applicant stands washed off. Even though the prosecutrix was below 18 years of age on the date of marriage, yet her marriage 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 proceeding has been initiated by the prosecutrix for cancellation of her marriage with the applicant. He, therefore, contends that applicant is liable to be enlarged on bail. Even 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 4.9.2023. As such, he has undergone more than 2 months of incarceration. However, upto this stage, no such circumstance has emerged on the record necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, the learned counsel for applicant 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. 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 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, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the prosecutrix in her statements under Section 161/164 Cr. P. C. has not supported the F.I.R., to the contrary, the prosecutrix is a willing and consenting party, as such applicant has neither abducted nor kidnapped the prosecutrix, a such no offence under Sections 363, 366 IPC can be said to have been committed by applicant, the prosecutrix has solemnized marriage with applicant, as such the criminality alleged against applicant stands washed off, though the prosecutrix was below 18 years of age on the date of her marriage with applicant yet, 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, the clean antecedents of applicant, the period of incarceration undergone, 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 for first informant in opposition to the 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 Sooraj @ Lalu 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 :- 8.11.2023 HSM High Court of Judicature at Allahabad