Allahabad High Court
Sameer vs State Of U.P. And 3 Others on 13 April, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11133 of 2023
Applicant :- Sameer
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ravi Shankar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
This is the second bail application moved on behalf of the applicant Sameer with a prayer to release him on bail in Case Crime No.93 of 2022, under Sections 363, 366-A, 376(3) I.P.C. and 3/4 POCSO Act, P.S. Bisauli, District- Budaun.
The first bail application of the applicant was rejected by this Court on 13.10.2022.
As per FIR, the fifteen year old daughter of the first informant was enticed away by the present applicant. Three days prior to the lodging of the FIR and till date of lodging FIR on 09.03.2022 the girl had not been recovered.
The first bail application of the applicant was rejected by this Court on the ground that on the basis of transfer certificate of the victim, she was 15 year old at the time of incident. As per medical report also she was 17 years of age. Though, in her statement under Section 161 Cr.P.C. and 164 Cr.P.C., she has stated that she had left her home on her own volition. She has also stated, in her statement, under Section 164 Cr.P.C. that she had solemnized marriage with the applicant. Before the doctor, she made a statement that after solemnizing marriage the applicant and the victim lived as husband and wife. The Court found that the victim being minor, her consent was of no significance and the bail application of the applicant was rejected.
Now, the counsel for the applicant has submitted that at that time the birth certificate of the victim was not available. Now it has been placed before the Court wherein the date of birth of the victim is 1st April, 2000, thus, on the date of incident i.e. on 06.03.2022, she was major.
Further, the attention of the Court is drawn towards the statement of the victim as PW 2 before the trial court, wherein in her cross-examination, she has stated that Sameer, the applicant had not enticed her away. She had gone to Ajmer Sharif without informing her family members and because of this anguish only her father had lodged the present FIR against Sameer. Sameer had not established any physical relations with her either against her consent or with her consent. As she wanted to marry with Sameer and her family members were opposed to this, so the present FIR was lodged by her father.
It is submitted that this statement of the victim is dated 03.03.2023, while the first bail application of the applicant was rejected on 13.10.2022, hence, this statement of the victim was not available at the time of disposal of the first bail application. The applicant is having no criminal history. Hence, the prayer for bail is made.
The prayer is opposed by the learned A.G.A.
Though, regarding the date of birth/ age of the victim the finding has come in the rejection order of the first bail application even then at this stage the birth certificate of the victim has been placed before the Court, which is appended at page-60 of the paper book.
If we go through this certificate, this certificate has been registered on 24.02.2022. This is the date, during pendency of the case against the applicant, which cannot be said to be a reliable document. Otherwise also, as per Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, in case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat;(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Thus, the certificate of the education institution is preferred in the presence of any certificate issued by the municipal board. In the light of Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 also, this birth certificate cannot be read in evidence in the presence of the transfer certificate of the victim wherein date of birth of the victim was placed before the Court at the time of disposal of the first bail application. Thus, as the date of birth of the victim has been decided at the time of disposal of the first bail application, secondly on the ground that birth certificate has been placed before the Court today is prepared on 24.02.2022 i.e. during the pendency of the case and thirdly that as per Section 94 (2) of Juvenile Justice (Care and Protection of Children) Act, 2015, the certificate of the educational institution shall prevail over the birth certificate issued by the municipal board, hence, the victim cannot be said to be major on the date of incident.
So far as the statement of the victim as PW2 in the trial court is concerned, in her examination-in-chief, she has clearly stated that she called the applicant telephonically. She was in love with Sameer. Further, she has admitted that she had solemnized marriage with Sameer. Both lived as husband and wife. Further, in her statement before the court, she has stated that her nikaah was solemnized with Sameer when she had gone to Ajmer Sharif with Sameer. After that they went to Kashmir and they lived there for 20-25 days. Though, she has denied that the physical relations were established between them with or without her consent, but in her examination-in-chief she has very well admitted that she was in love with Sameer and they had solemnized marriage. She had also admitted, in her statement, under Section 164 Cr.P.C. that both the victim and Sameer lived as husband and wife so if the statement of the victim are contradictory, it is for the court concerned to appreciate that evidence at the time of judgment.
In the opinion of the Court, no good ground for second bail is made out.
The second bail application is, accordingly, rejected.
However, the trial court is directed to expedite the hearing and decide the aforesaid case, as expeditiously as possible, preferably within a period of eight months from the date of producing a certified copy of this order.
Order Date :- 13.4.2023
Radhika
