Chandan Gond Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:185283

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34174 of 2023

Applicant :- Chandan Gond Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajesh Kumar Dubey,Prashant Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rajesh Kumar Dubey, the learned counsel for applicant and the learned A.G.A. for State.

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This application for bail has been filed by applicant Chandan Gond seeking his enlargement on bail in Case Crime No. 20 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, P.S. Tarkulwa, District Deoria, during the pendency of trial.

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Perused the record.

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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. However, in spite of service of notice, no one has put in appearance on behalf of opposite party 2 to oppose this application for bail.

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Record shows that in respect of an incident, which is alleged to have occurred on 26.01.2023, a delayed F.I.R. dated 4.2.2023 was lodged by first informant Rameshwari Devi (mother of the prosecutrix) and was registered as Case Crime No. 20 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, P.S. Tarkulwa, District Deoria. In the aforesaid F.I.R., four persons namely Chandan Gond, Neeraj Gond, Rugda Devi Virendra and Malti Devi have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that named accused Chandan Gond, and Neeraj Gond kidnapped the daughter of first informant i.e. prosecutrix namely X.

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After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The prosecutrix was recovered on 10.3.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr. P. C. Same is on record at page 20 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, the prosecutrix has stated that she herself willingly went to the applicant and thereafter accompanied him to Delhi and then to Banglore. Subsequently, she solemnized marriage with the applicant. and on account of above, she was in co-habitation with the applicant as his wife.

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Thereafter, the prosecutrix was requested for her internal medical examination. However, the prosecutrix refused for her internal medical examination.

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After aforesaid proceedings, the statement of the prosecutrix was recorded under Section 164 Cr. P. C., wherein the prosecutrix has reiterated her previous statement recorded under Section 161 Cr. P. C. Same is on record at page 78 of the paper book. Investigating Officer examined the first informant and other witnesses under Section 161 Cr. P. C., who have also supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet whereby applicant has been charge sheeted under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act.

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Learned counsel for applicant contends that though applicant is a named/charge sheeted accused, yet he is liable to be enlarged on bail.

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The prosecutrix is a willing and consenting party. She herself came to the applicant and thereafter accompanied him to Delhi and then to Banglore. As such, the prosecutrix was neither enticed away by the applicant nor she was abducted or kidnapped by the applicant. As such no offence under Sections 363/366 IPC can be said to have been committed by the applicant. Physical relation was maintained by the applicant with the prosecutrix only after the prosecutrix

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solemnized marriage with the applicant. In view of above, no offence under Section 376 IPC is made out against applicant. It is an undisputed fact that the prosecutrix has solemnized marriage with the applicant and it is on account of above that parties were living together as husband and wife. Accordingly, physical relations were maintained between them. As such, no offence under the POCSO Act can be said to have been committed by the applicant.

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Attention of the Court was then invited to the provisions contained to Section 11 (2) of the Hindu Marriage Act and on basis thereof it is urged by the learned counsel for applicant that even though the prosecutrix was below 18 years of age on the date of her marriage with the applicant, yet the marriage of the prosecutrix with the applicant shall not be void, but voidable at the instance of the prosecutrix alone. No proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void. On the above premise, he, therefore, submits that applicant is clearly entitled to be enlarged on bail.

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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 12.3.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized upto this stage. No such circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. He, therefore, submits that the 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 cooperate with the trial.

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Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since prosecurix is below 16 years of age, therefore, the consent of the prosecutrix, if any, is wholly immaterial. To buttress his submission, he has referred to the judgement of the Supreme Court in X (Minor) Vs. State of Jharkhand, 2022 Live Law (SC) 194 . However, the learned A.G.A. with reference to the material on record could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the prosecutrix has solemnized marriage with the applicant, the said fact is clearly evident from her statements under Section 161/164 Cr. P. C., even though the prosecutrix was below 18 years of age on the date of her marriage with the applicant, however simply on the said ground the marriage of the prosecutrix with the applicant shall not be void, but voidable at the instance of the prosecutrix, admittedly no proceedings have been initiated by the prosecutrix for declaration of her marriage with the applicant as void, the clean antecedents of the applicant, the period of incarceration undergone, the police report in terms of Section 173 (2) Cr. P. C. having been submitted, therefore, entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, prima facie the prosecutrix is a willing and consenting party, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, the applicant has made out a case for bail.

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Accordingly, the bail application is allowed.

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Let the applicant Chandan Gond involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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) The applicant shall file an undertaking to the effect that he 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.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..

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(iii) 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.

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(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 him in accordance with law.

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(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.

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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.

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Order Date :- 25.9.2023 HSM

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Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad

Chandan Gond v. State of U.P. and 3 Others

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