Momin vs State Of U.P. And 3 Othres
2023 Latest Caselaw 22929 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:170825
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35764 of 2023
 

 
Applicant :- Momin
 
Opposite Party :- State Of U.P. And 3 Othres
 
Counsel for Applicant :- Rajesh Kumar,Abhilasha Singh,Ashutosh Yadav,Shyam Lal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Ashutosh Yadav, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. 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 4 on 07.08.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 4 to oppose this application for bail.

4. This application for bail has been filed by applicant-Momin, seeking his enlargement on bail in Case Crime No. 244 of 2023, under Sections 363, 366, 376 IPC, Sections 3/4 POCSO Act and Sections 3/4 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021, Police Station-Bilsi, District-Badaun during the pendency of trial.

5. Record shows that in respect of an incident, which is alleged to have occurred on 01.06.2023, a delayed FIR dated 08.06.2023 was lodged by first informant-Singpal and was registered as Case Crime No. 244 of 2023, under Sections 363, 366 IPC, Police Station-Bilsi, District-Badaun. In the aforesaid FIR, 3 persons namely - (1) Momin, (2) Rahman and (3) Mainaj have been nominated as named accused whereas 4 unknown persons have also been arraigned as accused.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 15.06.2023. The statement of the prosecutrix was recorded by the Investigating Officer under Section 161 Cr.P.C. Copy of the same is on record at page 9 of the supplementary affidavit. The prosecutrix in her aforesaid statement has stated that she accompanied the applicant and thereafter solemnized marriage with the applicant. Subsequent to above, the prosecutrix was requested for her internal medical examination which was refused by her. Since there is no educational record to determine the date of birth of the prosecutrix, accordingly, the age of the prosecutrix was medically determined. As per the opinion of the Doctor, the prosecutrix is aged about 16 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., copy of which is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr.P.C. The prosecutrix has further stated that physical relationship were maintained with her by the applicant upon her consent.

9. On the basis of above and other material collected by Investigating Officer including the statements of the parents of the prosecutrix recorded before Child Welfare Committee, Investigating Officer came to the opinion that offence complained of is fully established. He, accordingly, submitted the charge sheet dated 09.07.2023 whereby applicant has been charge sheeted under Sections 363, 366, 376 IPC, Sections 3/4 POCSO Act and Sections 3/4 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021.

10. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. It is further contended that the statement of the prosecutrix recorded under Section 161 Cr.P.C. has been signed by the prosecutrix, therefore, by virtue of the prohibition contained in Section 162 Cr.P.C., the same shall not be inadmissible in evidence. Referring to the statement of the prosecutrix recorded under Section 164 Cr.P.C., he submits that the prosecutrix is a willing and consenting party. The prosecutrix has even solemnized marriage with the applicant. As such, no offence as complained of can be said to have been committed by the applicant. There is nothing on record to denote the date of birth of the prosecutrix. As such, out of necessity, reliance has to be placed upon the age of the prosecutrix as determined by the Doctor. In the opinion of the Doctor, the prosecutrix is said to be aged about 16 years. Giving leverage of 2 years, he contends that the prosecutrix shall be almost major. On the above premise, he contends that no good ground exists to maintain the custodial arrest of applicant.

11. 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 30.06.2023. As such, he has undergone more than 2 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits 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.

12. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that it is an undisputed fact that on the date of occurrence, the age of the prosecutrix was below 16 years as per the medical opinion. There is nothing on record on the basis of which, the date of birth of the prosecutrix could be discovered. Placing reliance upon the judgment of the Supreme Court in X (Minor) Vs. The State of Jharkhand and Another, 2022 LiveLaw (SC) 194, he submits that since the prosecutrix is below 16 years of age, therefore, the consent, if any, of the prosecutrix is wholly immaterial. Moreover, applicant and the prosecutrix belong to different religion and therefore, no marriage of the prosecutrix could have been solemnized without conversion of religion of applicant or the prosecutrix. There is nothing on record to indicate that such exercise was undertaken by the prosecutrix in a free state of mind. Attention of the Court at this stage was invited by the learned A.G.A. to the subsequent statements of the parents of the prosecutrix recorded under Section 161 Cr.P.C. before Child Welfare Committee wherein they have categorically stated that as per the disclosure made by the prosecutrix, her religion was got converted forcibly. It is thus sought to be contended that coercion was played in the commission of the crime and that to birth a child below 16 years of age. On the cumulative strength of above, the learned A.G.A. submits that no indulgence be granted by this Court in favour of applicant.

13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that as per the medical opinion, the prosecutrix was below 16 years of age on the date of occurrence, there is nothing on record pertaining to the date of birth of the prosecutrix, necessarily reliance has to be placed upon the medical opinion regarding the age of the prosecutrix, the statements of the prosecutrix recorded under Section 161/164 Cr.P.C., show willingness and consent of the prosecutrix but the same are immaterial, as she is below 16 years of age, the judgment of the Supreme Court in X (Minor) (Supra), the incriminating circumstance that has emerged in the statements of the parents of the prosecutrix recorded under Section 161 Cr.P.C., therefore, irrespective of the submissions urged by the learned counsel for applicant in support of the bail application, this Court does not find any good ground to enlarge the applicant on bail.

14. As a result, the present application for bail fails and is liable to be rejected.

15. It is, accordingly, rejected.

Order Date :- 23.8.2023

Vinay