Mohit Kumar Yadav v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41413 of 2023 Applicant :- Mohit Kumar Yadav Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ramesh Chandra Yadav,Shiv Nath Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Ramesh Chandra Yadav, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Mohit Kumar Yadav, seeking his enlargement on bail in Case Crime No. 237 of 2019, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Thathiya, District-Kannauj during the pendency of trial.

¶4At the very outset, the learned A.G.A. contends that notice of present application for bail has been served upon first informant-opposite party 4 on 13.09.2023. However, 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.

¶5Record shows that in respect of an incident, which is alleged to have occurred on 27.10.2019, a delayed FIR dated 04.11.2019 was lodged by first informant-Suresh Chandra (father of the prosecutrix) and was registered as Case Crime No. 237 of 2019, under Sections 363, 366 IPC and Sections 7/8 POCSO Act, Police Station-Thathiya, District-Kannauj. In the aforesaid FIR, applicant-Mohit has been nominated as solitary named accused.

¶6Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 13.10.2020 yet he is liable to be enlarged on bail. Referring to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C., copies of which are on record as Annexure 2 to the affidavit filed in support of present application for bail collectively, he submits that the prosecutrix is a willing and consenting party. The prosecutrix has ultimately solemnized marriage with the applicant. From the aforesaid wedlock, 3 children were born. A categorical averment to this effect has been made in paragraph 6 of the affidavit filed in support of present application for bail, which is not denied by the learned A.G.A. With reference to the date of birth of the prosecutrix, he submits that as per the High School Certificate, the date of birth of the prosecutrix as recorded therein is 15.11.2002. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 27.10.2019. As such, the prosecutrix was aged about 16 years, 11 months and 19 days on the date of occurrence. 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 by virtue of the provisions contained in Section 11(2) of the Hindu Marriage Act. However, up to this stage, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void. The applicant and the prosecutrix were living together as husband and wife. In case, the liberty of the applicant is not protected, a happy family shall face agony and misery. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail.

¶7Even 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 08.08.2023. 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 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.

¶8Per contra, the learned A.G.A. has opposed the prayer for bail. He submits 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. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶9Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the 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, in her statements referred to above, has categorically stated that she has solemnized marriage with the applicant, consequently, on account of above, the parties were in co-habitation as husband and wife, from the aforesaid wedlock, 3 children were born, 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 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 has void, in case, the liberty of the applicant is not protected, a happy family shall face agony and misery, 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. 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.

¶10Accordingly, the bail application is allowed.

¶11Let the applicant-Mohit Kumar Yadav, 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.

¶12However, 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 :- 28.11.2023 Vinay High Court of Judicature at Allahabad