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IN THE HIGH COURT OF ALLAHABAD
Krishan Pahal, J.
Ramshankar – Applicant
Versus
State of U.P. – Respondents
Criminal Misc. Bail Application No. - 12510 of 2019
Decided On : 02-06-2022
BAIL - Criminal Law - IPC 363, 366, 504, 506, 376 & POCSO Act 3/4 - Article 21 of the Constitution of India, Dataram Singh Vs. State of U.P. (2018) 3 SCC 22 - Atul Mishra vs. State of U.P. (2022) 3 ALJ 278 - The court allowed the bail application considering the nature of the offence, evidence on record, larger mandate of Article 21 of the Constitution of India, and the precedent set by the Apex Court in Dataram Singh Vs. State of U.P. The applicant was granted bail with specific conditions to ensure his presence and the welfare of the victim and the infant.
Fact of the Case:
The applicant sought bail in a case involving charges under IPC Sections 363, 366, 504, 506, 376 and Sections 3/4 of the POCSO Act. The victim, a minor, was alleged to have been enticed away and impregnated by the applicant. The applicant claimed to have married the victim out of love and proposed to take care of her and the newborn child.
Finding of the Court:
The court, considering the circumstances and the welfare of the newborn child, allowed the bail application, emphasizing the need for a pragmatic approach and the protection of the victim and the infant.
Issues: The issues revolved around the nature of the offence, the age and circumstances of the victim, and the applicant's claim of marriage and willingness to take care of the victim and the newborn child.
Ratio Decidendi: The court's decision was influenced by the nature of the offence, evidence on record, the larger mandate of Article 21 of the Constitution of India, and the precedent set by the Apex Court in Dataram Singh Vs. State of U.P. The court also considered the exceptional circumstances and the welfare of the newborn child.
Final Decision: The bail application was allowed, and the applicant was granted bail with specific conditions to ensure his presence and the welfare of the victim and the infant.
JUDGMENT :
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record.
2. Applicant seeks bail in Case Crime No.193 of 2019, under Sections 363, 366, 504, 506, 376 IPC & Sections 3/4 of P.O.C.S.O. Act, Police Station Mitauli, District Lakhimpur Kheri, during the pendency of trial.
3. The counsel for the victim is regularly absent since last so many dates. The hearing cannot be stalled on account of non cooperation of one counsel.
4. As per prosecution story, the applicant is stated to have enticed away the minor daughter of the informant in the night of 16/17.05.2018 at about 2:00 am. As per the allegations in the FIR, the date of birth of the victim is stated to be 13.11.2004 and the applicant is stated to have left her alone outside the village on 12.12.2018 i.e. after a period of about six months. The victim was found pregnant at that time and is stated to have given birth to a female child on 31.12.2018.
5. Learned counsel for the applicant has stated that he was madly love with the victim and out of fear of the villagers had eloped with the victim and had undergone marriage in a temple although the said marriage is not registered. Learned counsel for the applicant has further stated that although the statement of the victim recorded under Section 164 Cr.P.C. is against the applicant, but the same has been garnered out of fear of the family members of the girl. The applicant and the victim belong to the same village and the same community. He further argued that the applicant proposes to rear his child as he is the father and he is very much willing to keep his married wife and the newborn baby with him. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. The applicant is languishing in jail since 01.10.2019. In case, the applicant is released on bail, he will not misuse the liberty of bail. There are no criminal antecedents of the applicant.
6. Per contra, Sri Girjesh Kumar Dwivedi, learned A.G.A. has vehemently opposed the bail application but has not disputed the fact that out of the said union of the couple, a baby girl was born on 31.12.2018 and she is more than three and half years of age as present, who is being taken care of by the parents of the victim, although he has not disputed the fact that the applicant has no criminal history.
7. The matter shatters the conscious of one and all. What is the fault of the new born baby who has come to world under such circumstances?
8. Admittedly, as per the radiological examination report, the age of the victim is between 18-20 years, which is on record as filed in supplementary affidavit dated 13.01.2022. Thus, the victim can be stated to be major at the time of offence.
9. In this conservative and non-permissive society, it is true that marriage in the same village is prohibited and is not customary, and it may be an after effect of media and cinema. Instances of marriage in the same village are on the rise. This does adversely affect the social fabric. Both the accused and the victim are of very young age and have barely attained the age of majority. A baby girl has been born out of their wedlock. Though, the marriage may not be described as per the law of the land, but the Court has to apply a pragmatic approach in such conditions and indeed both the families are required to act practically. A lot of water has flown down the Ganges. Now, it's time to move ahead.
10. The youth in their tender age become victim to the legal parameters though rightly framed by the legislature, but here this Court is being drawn to make an exception in the extraordinary circumstances of the case. The life of a newborn child is at stake. She cannot to be left to face the stigma during her life.
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Pre-trial incarceration is not rule.
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The court held that despite serious charges, bail was granted based on the victim’s marriage to the accused and their family circumstances, emphasizing the presumption of innocence and the importance....
The principle of 'Presumption of Innocence Unless Proven Guilty' supports bail as a rule, emphasizing the right to liberty under Article 21 of the Constitution.
Bail – Courts have favoured release of young offenders on bail pending trial so that regressive influences of jail environment can be avoided and keeping in mind principle of best interest.
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