JUDGMENT :

RAHUL CHATURVEDI, J.

1. Heard Shri Ishan Deo Giri, learned counsel for the applicant, learned A.G.A. and perused the record of the case.

2. Applicant Atul Mishra is facing prosecution in Case Crime No.0456 of 2019, u/s 363, 366, 376 I.P.C.; Section ¾ of POCSO Act, 2012 and Sections 3(2)v, 3(2)va of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, Police Station-Khaga, District-Fatehpur. He is behind the bars in connection with aforesaid offence since 4.10.2021 and seeking bail during trial, whereas the victim/prosecutrix is languishing at Government Child Welfare Home (Girls), Khuldabad, Prayagraj along with her infant baby in her lap.

3. Pursuant to the earlier orders of this Court, the notices were issued to the concerned respondents. The C.J.M. Fatehpur who vide its intimation dated 22.1.2022 informs the court that the notices were served upon Rajendra Prasad (Respondent No.2) personally, but of no response. Nor learned A.G.A. has filed any counter affidavit so far, on the other hand, the applicant is behind the bars since October, 2021 waiting for justice. Hence with the help and aid of learned A.G.A. the Court is proposing to decide the bail application.

3. Prosecution against the applicant was rolled by the father of the victim Ms ‘A’ by filing F.I.R. on 17.11.2019 u/s 363 I.P.C. with the specific allegation that his daughter is a minor, pursuing her studies in Class-XI, (Date of Birth : 15.6.2005 as per her High School certificate) was enticed away by the applicant from 06.11.2019. This is the gist of the F.I.R.

4. Normally, this Court, on these factual aspect of the issue, is most uncharitable and unmerciful to such type of accused, who used a minor girl to quench their animal instinct and commit rape with her, but paragraphs herein below have compelled the Court to shift its stand for a greater cause and in the interest of larger good.

5. Applicability of statutory provisions in the facts and circumstances of the case is not a mathematical exposition or its theorem. When the law courts apply to these provisions, we should be careful about what would be its end result. If after applying any provisions in a given facts, leading to a disastrous and catastrophic result, it is the duty of the courts of law to mellow down its rigors in order to achieve much more meaningful and swallowable application of that provision in a given facts and circumstances of the case.

6. Now coming back to the facts of the case in hand, after lodging of the F.I.R., the police have recorded statements u/s 161 Cr.P.C. of the informant and his wife. From these statements, it was surfaced that the victim was missing since 6.11.2019, when gone to her school and thereafter her whereabouts were not known. Interestingly, from the same day the applicant too was missing. Thus it was gathered that both of them fled away to some unknown destination. Ms ‘A’ who was student of Class-XI and as per her High School Certificate-2019 her date of birth is 15th June, 2005, and thus on the date of incident she was barely 14 years 4 months of age, provenly a minor girl.

7. Police after lodging the F.I.R. in October, 2019, came to the informant on 2.3.2021, for recording his statement second time (majeed bayan), Annexure-4, in which he candidly declined to co-operate with the police, revealing that he knows the whereabouts of the victim but he has decided not to interfere in her life. He also asked the police officials to drop the case. Accordingly, the police on the same day has filed CLOSURE REPORT No.14/2021 before the court for its acceptance.

8. Since the victim was not traceable for a considerable period, it seems it was a black blot on the functioning of the police; thus, they kept the matter pending. Eventually on 4.10.2021 after getting a tip from the informer, police arrested the victim and her small baby in her lap along with the applicant from east of by-pass.

After the alleged arrest of the victim, her baby and the applicant, t