Ankit vs State Of U.P. And 3 Others
2023 Latest Caselaw 15634 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:109066
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11845 of 2023
 

 
Applicant :- Ankit
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Mohammad Zakir
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Mohd. Zakir, learned counsel for applicant and Sri Rishi Chaddha, learned AGA for State.

2. Applicant-Ankit has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 467 of 2022, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Hapur Dehat, District Hapur, after rejection of his bail application vide order dated 01.02.2023 passed by Additional District and Sessions Judge/ Special Judge (POCSO Act), Hapur.

3. In the present case Informant, i.e., father of victim, a minor girl aged about 17 years, lodged FIR on 17.10.2022 against applicant and his family members that applicant has enticed her daughter and kidnapped from lawful guardianship under a conspiracy hatched by his family members. The report was based on an information given by a co-villager.

4. Learned counsel for applicant submits that victim was recovered within four days. In the statement recorded under Section 161 Cr.P.C. victim has stated that she went alongwith applicant on her own will, solemnised marriage with him, stayed as husband-wife and have physical relationship with applicant. However, in the statement recorded under Section 164 Cr.P.C. victim has stated that she went alongwith applicant on her own will and solemnised marriage but she has denied that applicant has committed any forceful act. Learned counsel has placed reliance on this Court?s judgment passed in Criminal Misc. Bail Application No. 1777 of 2023 (Ajay Diwakar vs. State of U.P. and others), decided on 03.05.2023 that in similar circumstances this Court has granted bail considering that at this stage on the basis of statement of victim recorded under Section 164 Cr.P.C. there cannot be a presumption about any physical relationship.

5. Learned AGA appearing for State submits that since victim is a minor girl, therefore, consent, if any, is immaterial. Victim has specifically stated in her statement recorded under Section 161 Cr.P.C. that after marriage she has made physical relationship with applicant and further she has also admitted the same in her statement recorded under Section 164 Cr.P.C., therefore, there will be a presumption about physical relationship.

6. This Court in Ajay Diwakar (supra) has framed following question:

?Whether material collected during investigation such as further/ subsequent / Mazid Bayan or a statement given by a victim (a minor girl) before Child Welfare Committee or that victim has stayed/ lived as wife and husband with accused, would be sufficient evidence for Investigating Officer to take a different or contrary view of statements of victim recorded under Sections 161 and 164 Cr.P.C., wherein she has either denied or does not refer allegation of physical relationship with accused with or without her consent??

7. The above question has been answered in following terms:

?(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. [See, Dharmendra alias Patra (supra)]

(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. In the present case victim is a minor girl, aged about 17 years. Therefore, her consent, if any, is immaterial. There is substance in the argument of learned counsel for applicant that amongst the statements recorded under Sections 161 and 164 Cr.P.C. the later statement has more value wherein victim has stated only about marriage and specifically denied that applicant has committed any forceful act. Taking note of Ajay Diwakar (supra) at this stage there may not be any presumption of any physical relationship, therefore, applicant, who is in jail since 21.10.2022 has made out a case for bail.

9. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.

10. Let the applicant-Ankit 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 he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 his 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, 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 applicant, if there is no other legal impediment.

11. At this stage, learned AGA submits that since applicant has prior acquaintance with victim and her statement is not recorded in trial till date, therefore, to remove any possibility to influence victim, some stringent condition may also be imposed on applicant.

12. Taking note of argument of learned AGA, the applicant is directed not to enter in the area of District Hapur for a period of three months from today, except for the purpose of present case with prior information to Trial Court and meanwhile, Trial Court is directed to record statement of victim.

13. 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.

14. The bail application is allowed.

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

Order Date :- 18.5.2023

AK