Asif @ Ashu vs State Of U.P And 3 Others
2022 Latest Caselaw 2358 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55799 of 2021
 

 
Applicant :- Asif @ Ashu
 
Opposite Party :- State Of U.P And 3 Others
 
Counsel for Applicant :- Udai Bhan Singh,Avanish Pratap Singh,Mohd. Aslam
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri Mohd. Aslam, who has subsequently engaged after taking NOC from Sri Udai Bhan Singh, and Avanish Pratap Singh, learned counsel for the applicant as well as learned A.G.A for the State and perused the record.

By means of this application, the applicant who is involved in case crime no.360 of 2021, under Sections 376 IPC and Section 3/4 POCSO Act, Police Station- Kutubsher, District-Saharanpur is seeking enlargement on bail during the trial. The applicant is languishing in jail since 11.10.2021.

Contention raised by the counsel that one Nafees has lodged the present FIR against sole named acused applicant Asif @ Ashu under Section 376 IPC and Section 3/4 POCSO Act on 10.10.2021 for unknown time and date of the incident. Contention raised by the counsel that as per the FIR the age of the victim is 14 years and she has not completed her highschool examination. As per the medical report her age comes around 17 yeas and by giving the margin of two years either ways she seems to be major girl.

I have perused the 161 and 164 Cr.P.C. of the victim and from which it has been culled out that on making a false p romise of marry they maintained physical relationship 3/4 times in past. She is a major girl, who understands the far reaching repercussion of such type of relationship. Her consent cannot be taken by playing fraud and misrepresntation as contemplated in Section 90 of the IPC.

Learned counsel for the applicant has relied upon three judgements of Hon'ble Apex Court in the case of Maheshwar Tigga Vs. State of Jharkhand in Crl. Appeal No. 635 of 2020 decided on 28.09.2020, Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others reported in AIR 2019 SC 327 and Pramod Suryabhan Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608 to buttress his contention.

Per contra learned counsel for the informant vehementally opposed the bail application by making a mention that the applicant has sexually exploited the girl and thereafter he wriggled out from his promise and married with another girl and therefore the consent was obtained by a "misconception" which is prohibited vide Section 90 of the IPC. Learned counsel for the informant has relied upon the judgement of Hon'ble Apex Court in the case of Anurag Soni Vs, State of Chhatisgarh reported in 2019(13) SCC 1 in support of his contention.

Learned A.G.A. also opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions.

After hearing the rival submissions, the case of Anurag Soni (supra) is entirely different on the facts of the present case and thus no help to prosecution. In the instant case, she maintained the physical relationship for four good years with the applicant knowing fully well that the applicant is her own "real maternal brother" and comes within the prohibited degree of relationship and would not possible to have interse marriage between them as the same would be null and void in the light of Section 11 of Hindu Marriage Act and still she has maintained relationship.

Under the circumstances learned counsel for the applicant has drawn the attention of the Court to the judgement of Uday Vs. State of Karnataka, reported in (2003) 4 SCC46, the relevant extract of the judgement is quoted hereinbeleow:-

"25?It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

Keeping in view the rival submissions and taking the guidelines of the judgment of Hon'ble Apex Court, I am of the view that the applicant has made out a case for bail.

Let the applicant, Asif @ Ashu, 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR 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/APPLICANTS.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.

4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 9.5.2022

Abhishek Sri.