JUDGMENT :

1. Heard Sri Vishnu Murti Tripathi, learned counsel for applicant, Sri Pradeep Kumar, learned counsel for informant and Sri Chandan Agarwal, learned A.G.A.-I for State.

2. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.525 of 2022 under Sections 363, 366, 376(3) I.P.C. and 3/4 of POCSO Act, Police Station-Kokhraj, District -Kaushambi after rejection of his Bail Application vide order dated 05.12.2022 passed by Special Judge(POCSO Act), Kaushambi.

3. Informant (Mother of victim) has lodged an F.I.R. that her daughter (D.O.B. 01.01.2009) went to attend nature's call on 21.08.2022, however, when she did not return, a rigorous search was undertaken but she could not be found and, therefore, on 24.08.2022, she lodged the F.I.R against unknown person under Section 363 I.P.C.

4. Learned counsel for applicant submits that delay of three days in lodging F.I.R. remained unexplained. It appears that victim was recovered alone on 15.11.2022, thereafter, she gave her statement under Sections 161 and 164 Cr.P.C. that she along with applicant ran away and got married, however, later on they were apprehended.

5. Learned counsel further submits that victim has taken contrary stand in her statement before Magistrate that applicant has enticed her and forcefully kidnapped and took her to Prayagraj for Marriage. She was forcefully remained with applicant, who made physical relationship against her will.

6. Learned counsel further submits that according to radiological examination, age of victim is opined between 17 to 18 years. It was a case of consensual relationship and victim has love affair with applicant. They got married and lived together as husband-wife.

7. The above submissions are opposed by learned A.G.A.-I for State that according to educational document, age of victim on the date of occurrence was about 15 years and 8 months, therefore, she was a minor girl and as such her consent, if any, is immaterial. She has specifically stated in her statement recorded under Section 164 Cr.P.C. that applicant not only enticed her but forced her to marry and made physical relationship against her will.

8. Learned A.G.A.-I referred a certificate of marriage issued by Arya Samaj, Krishna Nagar, Prayagraj and has submitted that they have solemnized marriage of a minor girl, which is an illegal act and for that this Court may issue an appropriate direction.

9. In the present case, according to educational document, age of victim on the date of occurrence was about 15 years and 8 months and according to her medical examination also, age is opined between 17 to 18 years, therefore, victim is a minor girl and accordingly, there is merit in argument of learned A.G.A-I that consent of a minor girl is immaterial. Victim has specifically stated in her statement recorded under Section 161 Cr.P.C. that she was not only forcefully kidnapped but forcefully married also and applicant has made physical relationship against her will and since, statement of victim has not been recorded till date during trial, therefore, there is a possibility that in case of bail, applicant will try to influence her.

10. Accordingly bail application is rejected, however, Trial Court is directed to record the statement of victim expeditiously, preferably within a period of three months. Thereafter applicant will have liberty to file a fresh bail application.

11. Before parting with judgment, the Court took serious note that Arya Samaj, Krishna Nagar, Prayagraj has issued a marriage certificate of applicant with victim, a copy of same is on record. Marriage certificate does not indicate how age of victim is verified i.e. above 18 years. It was the duty of Arya Samaj Krishna Nagar, Prayagraj that before solemnizing marriage, it should be carefully verified whether they are solemnizing a marriage between two adult persons or not. It amounts to a child marriage which was opposed by Swami Dayanan