Badakoo @ Kuldeep vs State Of U.P. And 3 Others
2023 Latest Caselaw 20620 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:156470
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27115 of 2023
 

 
Applicant :- Badakoo @ Kuldeep
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Manoj Kumar Srivastava,Pramod Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Manoj Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Badakoo @ Kuldeep, seeking his enlargement on bail in Case Crime No. 51 of 2022, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Bharatkoop, District-Chitrakoot during the pendency of trial.

4. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant-opposite party 2 on 15.06.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 2 to oppose this application for bail.

5. Record shows that in respect of an incident, which is alleged to have occurred on 15.05.2022, a delayed FIR dated 19.05.2022 was lodged by first informant-Babbu (Father of the prosecutrix) and was registered as Case Crime No. 51 of 2022, under Sections 363, 366, 506 IPC, Police Station-Bharatkoop, District-Chitrakoot. In the aforesaid FIR, 4 persons namely - (1) Badakoo @ Kuldeep, (2) Sonu, (3) Chunkai and (4) Smt. Prabhawati have been nominated as named accused.

6. The gravamen of the allegations made in the FIR to the effect that named accused Badakoo @ Kuldeep i.e. applicant herein enticed away the minor daughter of first informant i.e. the prosecutrix aged about 15 years.

7. Learned 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 08.10.2022 yet he is liable to be enlarged on bail. Referring to the statement of the prosecutrix as recorded under Section 161 and 164 Cr.P.C., he contends that the prosecutrix is a willing and consenting party. As per the aforesaid statement, the prosecutrix has even solemnized marriage with the applicant. Even though the prosecutrix was below 18 years of age on the date of marriage yet simply on that ground that marriage of the prosecutrix with the applicant shall not be void but voidable, 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 voidable. It is on account of above that the prosecutrix and the applicant were in co-habitation. As such, no offence as complained of can be said to be committed by applicant.

8. 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 14.07.2023. As such, he has undergone more than 1 year and 1 month of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. As such, applicant is liable to be enlarged on bail. To buttress his submission, he has relied upon the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). According to the learned counsel for applicant, in case, the applicant is not enlarged on bail, a happy family shall stand broken. 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.

9. 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. The date of birth of the prosecutrix as per the education record of the institution where the prosecutrix first studied is 14.04.2006. As such, the prosecutrix was just 16 years, 1 month and 1 day old on the date of occurrence. Consequently, offence complained of is clearly established against the applicant. He, therefore, submits that no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that the prosecutrix has solemnized marriage with the applicant, in spite of the fact that the prosecutrix was below 18 years of age on the date of marriage but her marriage with the applicant 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 as void, as per the statements of the prosecutrix recorded under Section 161/164 Cr.P.C., she is a willing and consenting party, prima-facie offence complained of is not established against the applicant, the clean antecedents of the applicant, the period of incarceration undergone and inspite of the fact that the charge sheet has been submitted against applicant, the learned A.G.A. could not point out any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal (Supra) and also the fact that in case, the applicant is not enlarged on bail, a happy family shall stand broken, but without making any comments on the merits of the case, applicant has made out a case for bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant-Badakoo @ Kuldeep, 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.

13. However, 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 :- 4.8.2023

Vinay