Sadan vs State Of U.P. And 3 Others
2023 Latest Caselaw 14673 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:100792
 
AFR 
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14854 of 2023
 

 
Applicant :- Sadan
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Shantanu Srivastava,Saurabh Tripathi
 
Counsel for Opposite Party :- G.A.,Ankit Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. A counter affidavit has been filed on behalf of Informant even without calling it. This is not an appropriate practice, therefore, the counter affidavit is returned back.

2. Heard Sri Saurabh Tripathi, learned counsel for applicant, Sri Chandan Agarwal, learned AGA for State as well as Sri Ankit Singh, Advocate for Informant.

3. Applicant-Sadan has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 30 of 2023, under Sections 363, 366A, 376 IPC and 3/4 POCSO Act, Police Station Noorpur, District Bijnor, after rejection of his bail application vide order dated 27.02.2023 passed by Additional District and Sessions Judge/ Special Judge, POCSO Act, Bijnor.

4. In the present case, initially FIR was lodged against unknown persons by father of two minor girls that they have left their house on 25.01.2023 alongwith certain money and jewellery. FIR was lodged on the same day.

5. Learned counsel for applicant submits that there are two sisters. So far as elder sister is concerned, she returned within two days and recorded her statements under Sections 161 and 164 Cr.P.C. that she left her house alongwith her sister on her own will, called present applicant, stayed with him for two days and have physical relationship also. Learned counsel further submits that age of elder sister according to her educational document was 16 years, 11 months and five days. Learned counsel submits that this is a case of romantic relationship between two persons of tender age. It was a case of consensual relationship and considering age of victim, which is about 17 years, applicant may be enlarged on bail.

6. Learned AGA submits that it is a case where two minor sisters were eloped with two accused persons. Elder sister went alongwith applicant and according to educational document she is a minor girl and she has accepted that applicant made physical relationship with her, which is also corroborated by medical examination.

7. Learned counsel for informant submits that he has no objection if bail is granted though he has no instruction on behalf of victim.

8. 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 undertrials 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)

9. The argument that it is a romantic affair is absolutely baseless. This Court is not supposed to pursue such affair which is absolutely contrary to statute. Section 375 (Fourthly) IPC has specifically states that any relationship with or without consent of a girl below 18 years will be an offence and Section 2(d) of POCSO Act defines ?child?, whoever is less than 18 years. The Court cannot run on emotions and it has to follow the law of land. Court cannot deviate from it and give a message to society that it is supporting a romance that can be called ?adolescent love? which is absolutely against the provisions of Act.

10. Some High Courts have taken view that in some cases of early love relationship, rigour of above referred provisions may be soften little bit, however, they have not passed any order contrary to law referred above, except taking note of subsequent events such as likelihood of marriage, victim has already been accepted by accused?s family or a child is born out of their relationship. However, in every judgment Court has cautioned that position of law remain consistent as referred in earlier paragraphs and in a given situation, such as referred above, certain leniency was permitted (See, Mahesh Kumar vs. State (NCT of Delhi), Bail Appln. 1240 of 2023, decided on 08.05.2023), but in the present case no such circumstances exist.

11. This is a case of two minor girls and applicant has committed offence as referred above with regard to elder sister. Since statement of victim is not recorded during trial, therefore, taking note that applicant has prior acquaintance with victim and in case of bail there is likelihood that he may influence victim in trial, the prayer for bail is rejected at this stage.

12. However, Trial Court is directed to record statement of victim, if not already recorded, within a period of three months from today, if there is no other legal impediment. Thereafter applicant is at liberty to file fresh application for bail before Trial Court.

13. Section 19 of POCSO Act provides procedure for reporting of cases. It provides that if any person has knowledge that an offence under POCSO Act is committed, he shall provide such information to Special Juvenile Police or Local Police.

14. Recently a Division Bench of Delhi High Court in Independent Thought vs. Union of India (W.P. (C) 3811 of 2019) decided on 03rd May, 2023 has held that provisions of Section 19 of POCSO Act will have overriding effect. Relevant paragraph of the judgment is reproduced as under:

?16. Consequently, this Court declares that Section 19 read with Section 21 of the POCSO Act shall override the restrictions imposed under Section 198(1) read with Section 198(3) of Cr.P.C. However, this Court clarified that it has not dealt with the larger issue of ?marital rape? of an adult woman in the present proceedings.?

15. In the present case father of victims has knowledge that offence has already been committed. Therefore, at this stage, either compromise on behalf of victims or to say anything contrary, could be considered as an offence. Therefore, Trial Court is directed that while dealing with trial it shall also take note the judgment passed by Delhi High Court in Independent Thought (supra) and if necessary it will have liberty to direct to lodge FIR against informant.

16. With aforesaid observation/ direction, the bail application is disposed of.

Order Date :- 10.5.2023

AK