Allahabad High Court
Hariram vs State Of U.P. Thru. Prin. Secy. ... on 10 August, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:53506
Court No. - 27
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 247 of 2023
Applicant :- Hariram
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Other
Counsel for Applicant :- Shashank Singh,Dr. Pooja Singh,Neetu Patel
Counsel for Opposite Party :- G.A.
Hon'ble Brij Raj Singh,J.
1. This is the second bail application. The first bail application was dismissed for want of prosecution by the order of Hon'ble Saroj Yadav, J vide order dated 14.09.2022 in Criminal Misc. Bail Application No. 6678 of 2021.
2. Heard Ms. Dr. Pooja Singh, learned counsel for the accused-applicant as well as Shri Akhilesh Kumar Srivastava, learned A.G.A. for the State, and perused the record.
3. This bail application has been filed seeking release of accused/applicantHariram for grant of bail, who is involved in Case Crime No. 658 of 2020, under Sections 363, 366, 376 I.P.C and 3/4 POCSO Act, Police Station Beniganj, District Hardoi.
4. Learned counsel for the applicant has invited attention of the Court towards the statement of the prosecutrix recorded under Section 164 Cr.P.C. in which the prosecutrix has deposed that she was in love with the applicant and she had gone along with him to Delhi, out of her free will and she married to the applicant in a temple. She further deposed before the Court that for 8 months, she lived with the applicant. She further stated that she wanted to live along with the applicant. It has been further submitted by learned counsel for the applicant that on the basis of hand written note of the Principal of her school (Annexure No. 5 of the counter affiavit), the date of birth of the prosecutrix is shown as 29.08.2007, and on that basis, it has been presumed that she is minor whereas in the medical examination of the prosecutrix, the doctor has opined the age of the prosecutrix to be around 18 years. Learned counsel for applicant further stated that at the relevant time, the prosecutrix was major and she has further relied on paragraph 13, 14 and 19 of the judgment of Hon'ble Supreme Court in P.Yuvaprakash Vs. State Rep. By Inspector of Police in Criminal Appeal No(s). 1898 of 2023, and has submitted that the applicant is innocent and has not committed any offence as the prosecutrix was his married wife and it was a case of consent, therefore the applicant is entitled for bail. Learned counsel further stated that the applicant has no criminal history and is languishing in jail since 13.01.2021.
5. Learned A.G.A for the State has submitted that on the basis of paragraph 3 of the counter affidavit, notices have been served upon the victim, but none has appeared before this Court.
6. Learned A.G.A has further opposed the prayer for grant of bail and has submitted that as per record, it appears that the prosecutrix is minor therefore, their marriage is void and whatever physical relation was established with the prosecutrix by the applicat, comes under the purview of rape, therefore he does not deserve mercy of the Court thus the bail application of the applicant is liable to be rejected.
7. Considering the facts and circumstances of the case, by perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties particularly the argument that statement of prosecutrix recorded under Section 164 Cr.P.C, is not supporting the prosecution case, the argument that as per medical report, the age of the prosecutrix was around 18 years and it is a case of consent, considering the judgment of Hon'ble Supreme Court, I find it to be a fit case for grant of bail.
8. Accordingly, the bail application is allowed.
9. Let the applicant Hariram be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.
10. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.
Order Date :- 10.8.2023
DiVYa
