Dilkash vs State Of U.P. And 3 Others
2023 Latest Caselaw 22932 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:170679
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35741 of 2023
 

 
Applicant :- Dilkash
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Anubhav Pandey,Aftab Ahamad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Aftab Ahamad, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

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 03.08.2023. 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. This application for bail has been filed by applicant-Dilkash, seeking his enlargement on bail in Case Crime No. 351 of 2022, under Sections 323, 363, 376 IPC and Sections 3/4 POCSO Act, Police Station-Nandgram, District-Ghaziabad during the pendency of trial.

6. Record shows that in respect of an incident, which is alleged to have occurred on 14.04.2022, a delayed FIR dated 16.04.2022 was lodged by first informant-Smt. Gudiya (mother of the prosecutrix) and was registered as Case Crime No. 351 of 2022, under Section 363 IPC, Police Station-Nandgram, District-Ghaziabad. In the aforesaid FIR, applicant-Dilkash has been nominated as solitary named accused.

7. The gravamen of the allegations made in the FIR to the effect that named accused enticed away the minor daughter of the first informant namely - X aged about 17 years for the purpose of marriage.

8. At the very outset, the learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 04.05.2023 yet the applicant is liable to be enlarged on bail. Attention of the Court was invited to the statement of the prosecutrix recorded under Section 164 Cr.P.C., copy of which is on record at page 35 of the paper book. The prosecutrix in her aforesaid statement has categorically stated that she willingly joined the applicant and thereafter accompanied him to Bombay. She has further stated that she has solemnized marriage (Nikah) with the applicant on 26.09.2022. On the above premise, it is thus contended by the learned counsel for applicant that the prosecutrix and the applicant were living together as husband and wife. In view of above, marital relationship between the parties was established. The age of the prosecutrix, on the date of occurrence, has been determined, on the basis of the date of birth of the prosecutrix recorded in the educational records. However, there is nothing on record to show that the date of birth of prosecutrix relied upon is in conformity with the provisions of Section 94 of theJuvenile Justice (Care and Protection of Children) Act, 2015. Thus prosecutrix shall be deemed to be major. As such, no offence as complained of can be said to have been committed by the applicant.

9. 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 01.05.2023. As such, he has undergone more than 3 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 circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. In case, the applicant is not enlarged on bail, a happy family shall stand broken. Even otherwise, the prosecutrix is aged about 17 years and 11 days on the date of occurrence. As such, she was not below 16 years of age. He, therefore, 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.

10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the prosecutrix was a minor i.e. below 18 years of age on the date of occurrence, therefore, applicant, who is a named and charge sheeted accused, does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

11. 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 prima-facie the prosecutrix is a willing and consenting party, according to the age of the prosecutrix has been determined with reference to the date of birth of the proecutrix recorded in the educational records, however, there is nothing on record to show that the date of birth of prosecutrix relied upon is in conformity with the provisions of Section 94 of theJuvenile Justice (Care and Protection of Children) Act, 2015, thus prosecutrix shall be deemed to be major, the prosecutrix was aged about 17 years and 11 days on the date of occurrence, the prosecutrix in her statement under Section 164 Cr.P.C. has categorically stated that she has solemnized marriage (Nikah) with the applicant, on account of above, parties entered into marital relationship and were living together as husband and wife, in view of above, no offence as complained of can be said to have been committed by the applicant, the clean antecedents of applicant, the period of incarceration undergone, 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 circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicant-Dilkash, 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.

14. 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 :- 23.8.2023

Vinay