The Lucknow Bench of the Allahabad High Court has granted interim bail to a man accused of rape, kidnapping and the POCSO Act on the condition that he marries the prosecutrix under the Special Marriage Act.
A Single Bench of Justice Rajesh Singh Chauhan passed this order while hearing a Criminal Misc Bail Application filed by Ajay Kumar @ Golu @ Sanjay.
In compliance of the order dated 24.10.2024, the prosecutrix as well as the informant/complainant, who is the father of the prosecutrix along with Constable, Mahendra Yadav from Kotwali Tanda, Ambedkar Nagar and Mahila Head Constable, Ravindra Pathak from Reserve Police Lines are present in person.
The lady head constable has informed the Court that she has brought the prosecutrix from Raj Balika Grih Sindhi Kheda Para, Lucknow where the prosecutrix has been living presently.
Counsel for the applicant has demonstrated the statement of prosecutrix which has been filed along with supplementary affidavit, wherein, no allegation as to any kind whatsoever has been levelled against the applicant.
The prosecutrix has submitted that she has already got married with the applicant in one Hindu temple as per Hindu ritual, though she is a Muslim girl.
She has also submitted that she has got married in a Court also, but no such proof has been shown. She stated that since she has married a Hindu person, her father and other family members have not accepted that marriage, so she is living in Raj Balika Grih Sindhi Kheda Para, Lucknow.
She has further submitted that she is willing to live with the applicant. She has stated that she is a major girl aged about 18 years, therefore, she can take any decision in respect of her life. She has not studied in any educational institution, therefore, she is not having any educational documents.
Counsel for the applicant has submitted that the applicant is in jail since 22.07.2024 in Case under Section 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station- Kotwali Tanda, District- Ambedkar Nagar.
Counsel for the applicant has stated that as per her radiological age, the Chief Medical Officer, Ambedkar Nagar has determined her age as 16-17 years on 16.04.2024, however, the prosecutrix has again insisted that she has already attained the age of 18 years.
The complainant/informant who is also present in the court has stated that if his daughter is saying that she has already got married with the applicant and she is willing to live with him, he has nothing to say as he has broken all ties with her.
The AGA has stated that this is a case where the applicant is a Hindu by religion and prosecutrix is Muslim by religion, therefore, their valid marriage can be done under Special Marriages Act inasmuch as there is no provision of conversion in the Hindu religion. However, if she has got married in one temple and willing to live with the applicant, she may do so, if she has already attained the marriageable age.
“Having heard the counsel for the parties and having pursued the material available on record and also hearing the parties who are present in person, it appears that so as to protect the life of the prosecutrix for future, the applicant may marry with the prosecutrix under Special Marriages Act, for that he may be granted interim bail for the period of four months,” the Court observed.
The Court ordered that,
Let, the applicant Ajay Kumar @ Golu @ Sanjay be released on interim bail for a period of four months, to be more precise, till 2nd April 2025, in the aforesaid case crime number on his furnishing a personal bond and two sureties of Rs 20,000/- each.
As soon as the applicant is released from jail, he shall file his appropriate application for getting custody of the prosecutrix and such application may be decided with expedition.
After getting custody of the prosecutrix, he shall take necessary steps to get married with the prosecutrix under Special Marriages Act and after getting married under such provision of law, he shall get the marriage registered before the registering authority.
On the next date, the applicant along with the prosecutrix shall appear in person along with the proof of marriage and marriage registration certificate.
In the meantime, he shall cooperate in the trial proceeding and shall not miss use the liberty of interim bail. Further, the police personnel who have brought the prosecutrix from Raj Balika Grih Sindhi Kheda Para, Lucknow shall handover the custody of the prosecutrix to Raj Balika Grih Sindhi Kheda Para, Lucknow.
Besides the aforesaid conditions, the applicant shall follow the following conditions during the period of interim bail:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 CrPC is issued and the applicants fail 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 CrPC. 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.
(v) The applicant shall not leave India without previous permission of the Court. Considering the conduct of the applicant, the bail application may be disposed of finally on the next date.