Chandresh vs State Of U.P. And 3 Others
2023 Latest Caselaw 14016 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11706 of 2023
 

 
Applicant :- Chandresh
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Parmeshwar Kr. Chaudhary,Swarn Lata Suman
 
Counsel for Opposite Party :- G.A.,Dinesh Chandra Yadav,Kshitiswar Nath Yadav
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Mr. Parmeshwar Kr. Chaudhary, learned counsel for applicant, Mr. Dinesh Chandra Yadav, learned counsel for the first informant, Sri Sunil Kumar Srivastava, learned A.G.A. and perused the records.

2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.52 of 2022, under Sections 363, 366, 376 of I.P.C. and Section 3/4 of POCSO Act, Police Station- Sindhora, District- Varanasi after rejection of his Bail Application vide order dated 03.2.2023 passed by learned Additional District and Session Judge/Special Judge (POCSO Act), Court No.03, Varanasi.

3. In the present case, the victim is a minor girl aged about 17 years and 08 months. Initially, an F.I.R. was lodged under Sections 363 and 366 I.P.C. by the father of the victim that the present applicant has enticed her daughter for the purpose of marriage. It appears that victim recovered after one month and gave her statement under Sections 161 and 164 Cr.P.C. wherein she has specifically stated that she, on her own will, went to the applicant and stayed with him for a period of one month, as a husband and wife. However, she has not made reference about any physical relationship.

4. Learned counsel for the applicant submits that in these circumstances considering that no physical relationship took place, therefore, only on the basis that they stayed together, no offence of rape could not be made against the applicant. It is also submitted that applicant has a criminal history of one case arising out of matrimonial dispute of his relative.

5. Applicant is languishing in jail since 03.11.2022, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

6. The aforesaid submissions of the applicant have been vehemently opposed by Mr. Dinesh Chandra Yadav, learned counsel for the first informant, Sri Sunil Kumar Srivastava, learned A.G.A. for the State by submitting that since the victim has specifically stated that she stayed with applicant as husband and wife for a period of one month, therefore, in view of the presumption as provided under Section 114 Indian Evidence Act, it will be presumed that physical relationship also took place.

LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when under trials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

7. This Court has today passed a judgment in Criminal Misc. Bail Application No. - 1777 of 2023 (Ajay Diwakar Vs. State of U.P. and 3 others) along with connected matters wherein following question of law was framed:-

"Another issue would arise when a minor victim has stated in her statements recorded under Sections 161 and 164 of Code that she had solemnized marriage with accused and/ or lived as husband and wife, however, she emphatically denied any physical relationship or conspicuously kept silent on this issue. In there circumstances, whether the fact that they have admitted to live as married couple, with or without marriage, it would be presumed that normal relationship as husband and wife was in existence during their stay which also includes a physical relationship and that minor victim's consent for physical relationship is immaterial. Section 114 of Evidence Act provides that a Court may presume existence of certain facts which includes human conduct likely to have happened. Therefore, Investigating Officer will have liberty in such a situation if he makes an opinion that offence of rape is made out since accused has lived with minor girl as husband and wife and, therefore, it would be presumed that they had physical relationship as it is settled law that consent of minor is immaterial.

And above referred question was answered as follows :-

"25. Considering above referred submissions of rival parties, Amicus Curiae and above discussion on facts and law the question formulated above is answered as follows:

(i) An Investigating Officer is under obligation to conduct fair investigation which is an equal right of an accused as well as of victim and for that Investigating Officer has to follow procedure prescribed under the Code as well as Police Manual/ Regulation or procedure prescribed under any Special Act.

(ii) Investigating Officer has liberty to record statement of witnesses more than one time also. Mazid Bayan/ further statement can be recorded to unearth the truth and Investigating Officer has liberty to carry out investigation on its own way but in a legally permissible way till final report/ charge sheet is filed before Court concerned or under "further investigation".

(iii) Investigating Officer cannot record further statement/ Mazid Bayan of victim only for the purpose of clarification or to dilute any statement of victim recorded under Section 164 of Code with only object to make the accused culpable of an offence.

(iv) Child Welfare Committee is under obligation to provide legal as well as psychological counseling to victim and during this process she may give statement before Child Welfare Committee, however, it would not be considered to be a statement recorded under Section 161 of Code being not recorded by a Police Officer investigating the case. Therefore, any statement before Child Welfare Committee cannot be a sole ground to dilute or to take a different view of statement given by victim before Magistrate.

(v) Medical evidence may be a factor to take a contrary view to the statement of victim recorded under Sections 161 and 164 of Code by Investigating Officer, however, Investigating Officer has to record specific reasons in final report/ charge sheet for such opinion/ view.

(vi) If there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out.

(vii) Above factors may be taken into consideration while hearing a bail application."

8. Considering that victim is a minor girl (aged about 17 years and 08 months) and facts as referred above, she stayed with the applicant for a period of one month as a husband and wife and since there is no reference in her statement about any physical relationship, therefore, as mentioned in Ajay Diwaker(supra), there will be a presumption that they had physical relationship. However, considering that age of the applicant which is about 17 years and 10 months i.e. is just two months to go to become a major girl as well as that taking into note of the statement where there was no reference of any physical relationship as well as that only on basis of presumption that physical relationship was made with a minor, allegation of rape is made, therefore, taking note that applicant has been languishing in jail since 03.11.2022, he had made out a case of bail.

9. Let the applicant- Chandresh, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that 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.

(iii) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure 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 her, in accordance with law, under section 174-A I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of the applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned Trial Court and any application for exemption of her appearance on vague ground could be a ground for cancellation of bail by learned Trial Court without even issuing notice.

10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

11. The bail application is allowed.

12. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

13. Learned trial Court is directed to record the statement of the victim preferably within a period of 12 weeks from today, if there is no other legal impediment.

14. Registrar (Compliance) is to take steps.

Order Date :- 3.5.2023

Sachin/