1. Heard Sri Akhilesh Kumar Pandey, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and Sri Mukesh Singh, learned counsel appearing for opposite party no. 2.
2. The present bail application has been filed on behalf of the applicant seeking bail in pursuance to the First Information Report registered as Case Crime No. 221 of 2019, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station - Haiderganj, District - Faizabad.
3. Submission of learned counsel for the applicant is that first information report of the case has been lodged by the father of the prosecutrix, alleging that his minor daughter studying in Class XII had left the house on 02.08.2019 at 12.00 in the night and since then she has not returned and could not be found after searching for her every where. It is also alleged by the complainant that he has contacted all his relatives but he could not come to know about the whereabouts of the prosecutrix, consequently, present first information report under Sections 363, 366 I.P.C. has been lodged.
4. It is next submitted by counsel for the applicant that subsequently, the prosecutrix was recovered after about one and half months and her statement under Section 161 Cr.P.C. was recorded, wherein she has stated that she has left her parents house in the night of 02.08.2019 at around 12.00 in the night without telling any one and walked till she reached Village Bikapur, where she took lift from a DCM vehicle and reached Faizabad and again she took lift from another vehicle and reached Katra then from Katra she alighted a bus to Gonda and enroute when the bus stopped the prosecutrix alighted from the bus and jumped in a pond, and started drowning. She shouted for help and the driver (present applicant) of the bus came and saved her from drowning. The applicant asked her where she belongs to and where she wanted to go. The prosecutrix replied that she does not want to go anywhere. The applicant (driver of the bus) took her to his house and later on he married the prosecutrix according to Hindu rites and rituals and they started living as husband and wife.
5. The prosecutrix has reiterated the same version in her statement recorded under Section 164 Cr.P.C. It is further submitted by learned counsel for the applicant that charge sheet in the case has been filed in the Court of competent jurisdiction and the prosecutrix before the trial Court again reiterated the statement recorded under Sections 161/164 Cr.P.C. and she has been declared hostile.
6. Learned counsel for the applicant has pressed the bail application on the ground that from the perusal of the statements given by the prosecutrix during investigation and trial, clearly indicate the she has left her parents house on her own free will without any information or coercion by any individual. It is stated that in this regard Section 363, 366 I.P.C. are not attracted in the case of applicant. It is also submitted that in the light of the fact that the applicant and prosecutrix have got married then according to provisions of Explanation - II to Section 375 I.P.C., "sexual intercourse with his own wife, not being under 15, is not rape". It has been submitted that in the medical examination of the prosecutrix and also as per her Highschool certificate her age is sixteen years. Therefore, considering the fact that the prosecutrix is above 15 years of age and married with applicant, as per Explanation-II to Section 375 I.P.C., offence of rape is not made out against the applicant. It is lastly submitted that the applicant is in jail since 09.10.2019.
7. Learned A.G.A. has, however, opposed the prayer for grant of bail but he has not disputed the above contention made by the learned counsel for the accused-applicant.
8. Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and taking note of the fact that the prosecutrix left her parents house on her own free will and she met the applicant en-route to Gonda where she was rescued by the applicant from drowning and they got married and live together as husband and wife and hence prima-facie as per provisions of Explanation-II to Section 375 I.P.C. offence of rape is not made out against the applicant coupled with the fact that applicant has spent more than one and half years in judicial custody, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
9. Let applicant Shri Prakash Chaturvedi @ Raj be released on bail in Case Crime No. 221 of 2019, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station - Haiderganj, District - Faizabad, on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(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 Cr.P.C. is issued and the applicant fails 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 Cr.P.C. 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.
10. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
11. This order shall not influence the trial Court for proceeding with the trial.
12. The application stands disposed of.
Order Date :- 27.8.2021 A. Verma (Alok Mathur, J.)