Vikas Gaurav @ Aakash Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:162945

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31348 of 2023

Applicant :- Vikas Gaurav @ Aakash Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Salil Krishna,Amarendra Mani,Jitendra Kumar

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Counsel for Opposite Party :- G.A.,Raj Kumar Yadav

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Hon'ble Rajeev Misra,J.

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Heard Mr. Salil Krishna, the learned counsel for applicant, the learned A.G.A. for State and Mr. Raj Kumar Yadav, the learned counsel for applicant Prabha and the learned A.G.A. for State.

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2. Perused the record.

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Instant application for bail has been filed by applicant-Vikas Gaurav @ Aakash seeking his enlargement on bail in Case Crime No. 25 of 2023 under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Sakaldeeha, District-Chandauli, during the pendency of trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 14.02.2023 a delayed F.I.R. dated 17.02.2023 was lodged by first informant Shravan (father of the prosecutrix) and was registered as Case Crime No. 25 of 2023 under Sections 363, 366 I.P.C. Police Station-Sakaldeeha. In the aforesaid F.I.R. applicant-Vikas Gaurav @ Aakash has been nominated as solitary named accused.

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The gravamen of the allegations made in the F.I.R is to the effect that the daughter of first informant namely X i.e. the

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prosecutrix, who is aged about 17 years is a student of Class XIth in Balika Intermediate College, Barthi. The prosecutrix left her home on 14.02.2023 at about 10.00 AM but she did not return. Subsequently, a search was made to locate the whereabouts of the prosecutrix then it was gathered that named accused i.e applicant has enticed away the minor daughter of the first informant.

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Subsequent to the aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 01.03.2023 Thereafter the statement of the prosecutrix was recorded by the Investigating Officer under Section 161 Cr.P.C, which is on record at page 29 of the paper book. In the aforesaid statement, the prosecutrix has not supported the F.I.R. To the contrary, she has stated that she herself accompanied the applicant. Thereafter prosecutrix was requested for her medical examination but the same was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 35 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement under Section 161 Cr.P.C. and has now stated that she has solemnized marriage with applicant. During course of investigation, Investigating Officer recovered the High School Certificate of the prosecutrix wherein her date of birth is recorded as 25.09.2005. The occurrence giving rise to present criminal proceedings has occurred on 14.02.2023, as such, the prosecutrix was more than 17 years and 4 months on the date of occurrence. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that offence under Section 376 I.P.C and Sections 3/4 POCSO Act is also made out against applicant. Accordingly,

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Investigating Officer submitted the charge sheet dated 05.05.2023 whereby applicant has been charge-sheeted under Sections 363, 366, 376 I.P.C. and Sections 3/4 POCSO Act.

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Learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in aforementioned case crime number. Referring to the statement of the prosecutrix as noted above, he submits that prosecutrix is a willing and consenting party. The prosecutrix herself accompanied the applicant. There is noting on record to show that the prosecutrix was abducted or kidnapped by applicant for the purpose of marriage or for dislodging her modesty. As such, no offence under Sections 363 and 366 I.P.C. can be said to have been committed by applicant. It is next contended that as per the statement of the prosecutrix recorded under Section 164 Cr.P.C., she has solemnized marriage with applicant. It is on account of above that the prosecutrix and applicant were in cohabitation and as such, no offence under Section 376 I.P.C. and Sections 3/4 POCSO Act can be said to have been committed by applicant. According to the learned counsel for applicant even though the prosecutrix was below 18 years, on the date of marriage of her with the applicant but simply on that ground the marriage shall not be void but voidable at the instance of the prosecutrix by virtue of the provision contained in Section 11 (2) of the Hindu Marriage Act. However upto this stage, no proceedings have been initiated by the prosecutrix for declaration her marriage with the applicant as void. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted on 05.05.2023. As such, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the

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pendency of trial. 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 custody since 26.03.2023. As such, he has undergone more than four months of incarceration. In case the applicant is not enlarged on bail a happy family shall stand broken. On the cumulative strength of above, the learned counsel for applicant 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.

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Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. They further submit that admittedly on the date of occurrence the prosecutrix was minor as she was below 18 years of age. Since the prosecutrix was below 18 years of age on the date of occurrence, therefore his consent if any is not relevant. As such, no sympathy be shown by this court in favour of applicant. However they Could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that as per the statement of the prosecutrix recorded under Sections 161/164 Cr.P.C., the prosecutrix is a willing and consenting party, the prosecutrix has herself accompanied applicant, as such the prosecutrix was not abducted or kidnapped by the applicant for the purpose of

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marriage or to dislodge her modesty, as such prima facie no offence under Section 363, 366 I.P.C. is made out against applicant, as per statement of the prosecutrix recorded under Section 164 Cr.P.C., the prosecutrix has solemnized marriage with applicant, in view of above, no offence under Section 376 I.PC and Section 3/4 POCSO Act can be said to have been committed by applicant, even though the prosecutrix was below 18 years, on the date of her marriage with applicant but simply on that ground the marriage shall not be void but voidable at the instance of the prosecutrix by virtue of the provisions contained in Section 11 (2) of the Hindu Marriage Act, however upto this stage, no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted on 05.05.2023 as such, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, the learned A.G.A. as well as the learned counsel representing first informant could not point out any any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of apex Court Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) the clean antecedents of applicant, the period of incarceration undergone inasmuch as he has no criminal history to his credit except the present one but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly, present application for bail is allowed .

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Let the applicant- Vikas Gaurav @ Aakash involved in aforesaid case crime number be released on bail on his furnishing a

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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:-

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(i) Applicant will not tamper with prosecution evidence.

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(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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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 of applicant and send him to prison

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Order Date :- 11.8.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Vikas Gaurav @ Aakash v. State of U.P. and 3 Others

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Vikas Gaurav @ Aakash v. State of U.P. and 3 Others

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