Manoj Paswan v. State of U.P. and 3 Others

Court No. -65 Case :-CRIMINAL MISC. BAIL APPLICATION No. -48264 of 2023 Applicant :-Manoj Paswan Opposite Party :-State Of U.P. And 3 Others Counsel for Applicant :-Monu Upadhyay Counsel for Opposite Party :-G.A.,Raj Kishore Dubey Hon'ble Rajeev Misra,J. Heard Mr. Monu Upadhyay, the learned counsel for applicant, the learned A.G.A. for State and Mr. Raj Kishore Dubey, the learned counsel for first informant. Perused the record. This application for bail has been filed by applicant Pradeep seeking his enlargement on bail in Case Crime No. 187 of 2023, under Sections 363, 366, 376 IPC and 7/8 POCSO Act, Police Station-Kubersthan, District Kushi Nagar during the pendency of trial. Record shows that in respect of an incident which is alleged to have occurred on 9.7.2023 a belated F.I.R. dated 14.7.2023 was lodged by first informant Kanti Devi and was registered as Case Crime No. 187 of 2023, under Sections 363, 366, 376 IPC and 7/8 POCSO Act, Police Station-Kubersthan, District Kushi Nagar. In the aforesaid F.I.R. one Manoj (applicant herein) has been nominated as solitary 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 namely, X on 9.7.2023 at 6:00 pm. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms Chapter XII Cr.P.C. The prosecutrix was recovered on 26.7.2023. According to learned counsel for applicant the prosecutrix in her statements under sections 161 and 164 Cr.P.C. has not supported the F.I.R. To the contrary, the prosecutrix is a willing and consenting party. Moreover the prosecutrix has solemnized marriage with applicant. It is then contended that date of birth of the prosecutrix recorded in the institution first attended by her is 7.3.2006. The F.I.R. giving rise to present criminal proceedings was lodged on 9.7.2023. As such, the prosecutrix was aged about 17 years and two months on the date of occurrence. It is then contended that though the prosecutrix was below 18 years of age on the date of her marriage with the applicant but simply on account of above, marriage of prosecutrix with applicant shall not be void but voidable at the instance of prosecutrix alone by virtue of the provisions contained in section 11 (2) of the Hindu Marriage Act. However, no proceedings have been initiated by the prosecutrix till date for declaration of her marriage with the applicant as void. 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 28.7.2023. As such, he has undergone more than four months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant. As such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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. 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, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants in support of the application for bail, with reference to the record at this stage. Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants, accusation made coupled with the fact that prima facie the prosecutrix is a willing and consenting party, the prosecutrix has solemnized marriage with applicant, however, the prosecutrix was below 18 years of age on the date of her marriage with the applicant, yet the marriage of the prosecurix with the applicant shall not be void but voidable at the instance of the prosecutrix, the marriage of the prosecutrix with the applicant shall not be void but voidable at the instance of prosecutrix alone by virtue of section 11 (2) of the Hindu Marriage Act, however, no proceedings have been initiated by the prosecutrix for declaration of her marriage with applicant as void, the period of incarceration undergone, the clean antecedents of applicants, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, as such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during pendency of trial, the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, the bail application is Allowed. Let the applicant Manoj Paswan, be released on bail in the aforesaid case crime number on 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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 14.12.2023 Arshad High Court of Judicature at Allahabad