Naresh Parihar v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42139 of 2023 Applicant :- Naresh Parihar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ruchita Jain Counsel for Opposite Party :- G.A.,Dhirendra Kumar,Ulajhan Singh Bind Hon'ble Rajeev Misra,J.

¶1Heard Miss Rajshree Malviya, the learned counsel for applicant, who has put in appearance by filing his Vakalatnama in Court today, which is taken on record, the learned A.G.A. for State and Mr. Ulajhan Singh Bind, the learned counsel representing first informant.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Naresh Parihar, seeking his enlargement on bail in Case Crime No. 318 of 2022, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Prem Nagar, District-Jhansi during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 23.07.2022, a delayed FIR dated 16.08.2022 was lodged by first informant-Smt. Sudama (mother of the prosecutrix) and was registered as Case Crime No. 318 of 2022, under Sections 363, 366 IPC, Police Station-Prem Nagar, District-Jhansi. In the aforesaid FIR, applicant-Naresh Parihar has been nominated as solitary named accused.

¶5The gravamen of the allegations made in the FIR is to the effect that named accused Naresh Parihar is alleged to have enticed away the minor daughter of the first informant namely - X aged about 15 years.

¶6After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 25.06.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. wherein the prosecutrix has not supported the FIR. The prosecutrix in her aforesaid statement has clearly and categorically stated that she herself went to the applicant and thereafter, accompanied the applicant to Haryana where they subsequently solemnized marriage. It is on account of above that the parties came in cohabitation and were living together as husband and wife. Subsequent to above, the prosecutrix was requested for her internal medical examination which was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has rejoined her previous statement under Section 161 Cr.P.C.

¶7During course of investigation, Investigating Officer recovered the certificate of the Principal of the institution where the prosecutrix had last studied. As per the said certificate, the date of birth of the prosecutrix is 15.06.2006. The occurrence giving rise to present criminal proceedings is alleged to have occurred on

23.07.2022. As such, the prosecutrix was aged about 16 years, 1 month and 8 days 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 supported the FIR. On the basis of above and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated

01.07.2023 whereby applicant has been charge sheeted under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act.

¶8Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Referring to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C., it is urged by the learned counsel for applicant that the prosecutrix herself came and joined the applicant and thereafter, accompanied the applicant to Haryana. The prosecutrix has willingly solemnized marriage with applicant. As such, no fraud or coercion was played by applicant with the prosecutrix for her marraige performed with applicant. On the above premise, it is urged that applicant cannot be said to be guilty of either kidnapping, abducting or having enticed away the prosecutrix. As such, no offence under Sections 363, 366 IPC can be said to have been committed by the applicant. It is then contended that the prosecutrix in her aforesaid statement has clearly and categorically stated that she has solemnized marriage with the applicant in a Temple. On account of above, the parties came in cohabitation as husband and wife. On the above premise, he submits that no offence under Section 376 IPC and Sections 3/4 POCSO Act can be said to have been committed by the applicant either. As such, applicant is liable to be enlarged on bail. 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 i.e. 23.07.2022 yet the marriage of the prosecutrix with the applicant shall not be void on the ground 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, therefore, the criminality, if any, committed by the applicant stands washed off.

¶9Even 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 29.06.20236. As such, he has undergone more than 5 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 on record 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.

¶10Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since admittedly the prosecutrix is minor and she is below 18 years of age, therefore, her consent, if any, is irrelevant. On the above premise, they submit that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶11Having 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 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, 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 her marriage with the applicant yet the marriage of the prosecutrix with the applicant shall not be void on the ground 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 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. and the learned counsel representing first informant 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.

¶12Accordingly, the bail application is allowed.

¶13Let the applicant-Naresh Parihar, 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.

¶14However, 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 :- 4.12.2023 Vinay High Court of Judicature at Allahabad