Momin Vs State of U.P. and 3 Others

Court No. - 80

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20616 of 2025

Applicant :- Momin Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Aryan Srivastava,Prakash Chandra Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rishabh Srivastava, Advocate, holding brief of Mr. R.N. Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

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This repeat application for bail has been filed by applicant-Momin seeking his enlargement on bail in Case Crime No. 244 of 2023, under sections 363, 366, 376 IPC, and Section 3/4 POCSO Act and Section 3/4 U.P. Prohibition of unlawful Conversion of Religion Act, 2021, Police Station- Bilsi, District Budaun during the pendency of trial.

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The first bail application of applicant was rejected by this Court by a detailed order dated 23.8.2023, passed in Criminal Misc. Bail Application No. 35764 of 2023 (Momin Vs State of U.P. and 3 Others). For ready reference the order dated 23.8.2023 is reproduced herein under:

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"1. Heard Mr. Ashutosh Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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2. Perused the record.

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3. 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 4 on 07.08.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 4 to oppose this application for bail.

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4. This application for bail has been filed by applicant-Momin, seeking his enlargement on bail in Case Crime No. 244 of 2023, under Sections 363, 366, 376 IPC, Sections 3/4 POCSO Act and Sections 3/4 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021, Police Station-Bilsi, District-Badaun during the pendency of trial.

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5. Record shows that in respect of an incident, which is alleged to have occurred on 01.06.2023, a delayed FIR dated 08.06.2023 was lodged by first informant-Singpal and was registered as Case Crime No. 244 of 2023, under Sections 363, 366 IPC, Police Station-Bilsi, District-Badaun. In the aforesaid

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FIR, 3 persons namely - (1) Momin, (2) Rahman and (3) Mainaj have been nominated as named accused whereas 4 unknown persons have also been arraigned as accused.

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6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of ChapterXII Cr.P.C. The prosecutrix was recovered on 15.06.2023. The statement of the prosecutrix was recorded by the Investigating Officer under Section 161 Cr.P.C. Copy of the same is on record at page 9 of the supplementary affidavit. The prosecutrix in her aforesaid statement has stated that she accompanied the applicant and thereafter solemnized marriage with the applicant. Subsequent to above, the prosecutrix was requested for her internal medical examination which was refused by her. Since there is no educational record to determine the date of birth of the prosecutrix, accordingly, the age of the prosecutrix was medically determined. As per the opinion of the Doctor, the prosecutrix is aged about 16 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., copy of which is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr.P.C. The prosecutrix has further stated that physical relationship were maintained with her by the applicant upon her consent.

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9. On the basis of above and other material collected by Investigating Officer including the statements of the parents of the prosecutrix recorded before Child Welfare Committee, Investigating Officer came to the opinion that offence complained of is fully established. He, accordingly, submitted the charge sheet dated 09.07.2023 whereby applicant has been charge sheeted under� Sections 363, 366, 376 IPC, Sections 3/4 POCSO Act and Sections 3/4 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021.

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10. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. It is further contended that the statement of the prosecutrix recorded under Section 161 Cr.P.C. has been signed by the prosecutrix, therefore, by virtue of the prohibition contained in Section 162 Cr.P.C., the same shall not be inadmissible in evidence. Referring to the statement of the prosecutrix recorded under Section 164 Cr.P.C., he submits that the prosecutrix is a willing and consenting party. The prosecutrix has even solemnized marriage with the applicant. As such, no offence as complained of can be said to have been committed by the applicant. There is nothing on record to denote the date of birth of the prosecutrix. As such, out of necessity, reliance has to be placed upon the age of the prosecutrix as determined by the Doctor. In the opinion of the Doctor, the prosecutrix is said to be aged about 16 years. Giving leverage of 2 years, he contends that the prosecutrix shall be almost major. On the above premise, he contends that no good ground exists to maintain the custodial arrest of applicant.

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11. 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 30.06.2023. As such, he has undergone more than 2 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he 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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12. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that it is an undisputed fact that on the date of occurrence, the age of the prosecutrix was below 16 years as per the medical opinion. There is

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nothing on record on the basis of which, the date of birth of the prosecutrix could be discovered. Placing reliance upon the judgment of the Supreme Court in X (Minor) Vs. The State of Jharkhand and Another, 2022 LiveLaw (SC) 194, he submits that since the prosecutrix is below 16 years of age, therefore, the consent, if any, of the prosecutrix is wholly immaterial. Moreover, applicant and the prosecutrix belong to different religion and therefore, no marriage of the prosecutrix could have been solemnized without conversion of religion of applicant or the prosecutrix. There is nothing on record to indicate that such exercise was undertaken by the prosecutrix in a free state of mind. Attention of the Court at this stage was invited by the learned A.G.A. to the subsequent statements of the parents of the prosecutrix recorded under Section 161 Cr.P.C. before Child Welfare Committee wherein they have categorically stated that as per the disclosure made by the prosecutrix, her religion was got converted forcibly. It is thus sought to be contended that coercion was played in the commission of the crime and that to birth a child below 16 years of age. On the cumulative strength of above, the learned A.G.A. submits that no indulgence be granted by this Court in favour of applicant.

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13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that as per the medical opinion, the prosecutrix was below 16 years of age on the date of occurrence, there is nothing on record pertaining to the date of birth of the prosecutrix, necessarily reliance has to be placed upon the medical opinion regarding the age of the prosecutrix, the statements of the prosecutrix recorded under Section 161/164 Cr.P.C., show willingness and consent of the prosecutrix but the same are immaterial, as she is below 16 years of age, the judgment of the Supreme Court in X (Minor) (Supra), the incriminating circumstance that has emerged in the statements of the parents of the prosecutrix recorded under Section 161 Cr.P.C., therefore, irrespective of the submissions urged by the learned counsel for applicant in support of the bail application, this Court does not find any good ground to enlarge the applicant on bail.

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14. As a result, the present application for bail fails and is liable to be rejected.

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15. It is, accordingly, rejected. "

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Learned counsel for applicant submits that though the applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail, during the pendency of trial.

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In furtherance of aforesaid submission, it is urged by the learned counsel for applicant that statement of the first informant and the prosecutrix have already been recorded before Court below. It is thus contended by the learned cousnel for applicant that since the statements of the first informant and the prosecutrix is recorded before Court below, therefore, in case the applicant is enlarged on bail, in that eventuality, it cannot be said that applicant shall not terrorize the witnesses or shall hamper the course of trial.

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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 30.6.2023. As such, he has undergone more than two years of incarceration. The police report in terms of

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Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned counsel for applicant/appellant is liable to be enlarged on bail during the pendency of trial. In case the applicant is enlarged on bail then in that eventuality, 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. and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Offence committed by applicant is not only illegal but also immoral. Applicant has deliberately and forcibly committed penetrative sexual assault upon prosecutrix and therefore he has been charge sheeted under section 3 of the POCSO Act. Considering the nature and gravity of offence, the period of incarceration undergone, cannot be considered as a ground so sufficient so as to enlarge the applicant on bail. They therefore contend that applicant does not deserve any sympathy of this Court.

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When confronted with above, learned counsel for applicants could not overcome the same.

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Having heard the learned counsel for applicants, the learned A.G.A. for State/opposite party-1 and upon perusal of record, this Court finds that the objectiond raised by the learned A.G.A. and the learned cousnel representing first informant in opposition to the present repeat application for bail, this Court finds that the objection raised by the learned A.G.A. and the the learned counsel for first informant in opposition to this repeat application for bail are not only borne out from the record, but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. Therefore, irrespective of the submissions urged by the learned counsel for applicant in support of this repeat application for bail, this Court does not find any new good or sufficient grounds so as to enlarge the applicant on bail.

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In view of above, the present repeat application for bail fails and is liable to be rejected.

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It is accordingly rejected.

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Order Date :- 8.7.2025/Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Momin v. State of U.P. and 3 Others

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