WRIT PETITION 1709 of2024 on 1 January 2011

Court No. - 8

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7258 of 2024

Applicant :- Surru @ Israr

Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And 3 Others Counsel for Applicant :- Ajeet Kumar Singh,Pradeep Kumar Tripathi,Rajendra Prasad Counsel for Opposite Party :- G.A.,Pradeep Kumar Mishra Hon'ble Jaspreet Singh,J.

Heard Sri Pradeep Kumar Tripathi, learned counsel for theapplicant, Sri Vishwas Saraswat, learned AGA for the State-respondent as well as Sri Pradeeep Kumar Mishra, leanedcounsel for the complainant.

The applicant is arraigned in case Crime No. 52 of 2024 underSections 363, 366 I.P.C. relating to Police Station RamkotDistrict Sitapur.

The First Information Report was lodged by the father of thevictim alleging that his daughter was a minor and the presentapplicant had lured the victim with a false pretext to marry andeloped with her and the other co-accused were instrumental.

The matter was escalated as the applicant and the victim jointlyfiled a petition under Article 226 of the Constitution of Indiachallenging the FIR No. 52 of 2024 in Criminal Misc. WritPetition No. 1709 of 2024.

The said writ petition was filed with the averments that both thewrit petitioners (the applicant and the victim herein) werelawfully married and the First Information Report against theapplicant and the other co-accused was bad in the eyes of law.

During the hearing of the writ petition bearing W.P. No. 1709 of2024, certain events transpired and it revealed prima facie thatthe victim was a minor. The Adhar card which was filed in thesaid writ petition did not bear the correct date of birth andrelying upon the said Adhar Card, the affidavit was filed in thesaid writ petition was also not valid.

Before the writ court, the proceedings were opposed by thefather of the victim and it was alleged that the date of birth inthe alleged Adhar Card which had been filed by the petitioners was fraudelent. It was further stated that the date of birth of thevictim was 01.01.2011 whereas the date of birth in the allegedAdhar Card was mentioned as 01.01.2006.

The Division Bench of this Court while hearing the writ petitionhad also summoned the petitioners and thereafter noticing thestand of the petitioners including summoning the records fromthe school where the victim was studying, the Division Benchfound that the victim was a minor and she was handed over tothe Child Welfare Committee and also dismissed the writpetition with certain observations including imposition of cost.

Upon investigation, apart from Sections 363 and 366 I.P.C.further sections were added, interalia Sections 468, 466, 474,471, 504, 506, 306 (3) I.P.C. and 3/4 (2) of POCSO Act. Theapplicant was apprehended and is in Jail since 09.04.2024.

In the aforesaid backdrop, the submissions of learned counselfor the applicant is that the applicant and the victim were in arelationship and the applicant married the victim in Lucknowon 23.02.2024 and later the said marriage was also registeredbefore the Registrar of Marriages on 01.03.2024.

It is alleged that since the victim was a major and she elopedwith the applicant on her volition, hence, apparently no case interms of Section 363 and 366 was attracted.

It is further urged that the victim had made a statement beforethe Division Bench of this Court in the writ petition that she hadmarried the applicant, however, after the writ petition wasdismissed, the statements of the victim which was recordedunder Section 161 Cr.P.C. categorically indicates that the victimstated that she was 18 years of age and that she had studieduptill Class 8th. It was alleged by her that the applicant hadforcibly taken the victim to Lucknow where he solemnized themarriage and thereafter he forced the victim to appear beforethe High Court, however, she did not make any allegation ofsexual assault.

Conclusion

Even in her statement, recorded under Section 164 Cr.P.C. shedid not level any allegation against the applicant for any sexualassault. Though, she reiterated her stand that the applicant hadforcibly taken the victim to Lucknow where he solemnized amarriage. She also stated that the applicant and other co-accused persons were instrumental in getting a false Adhar Cardprepared indicating the age of the victim to be 18 years.

The learned counsel for the applicant submitted that noallegation prima facie of any sexual assault is made out. It is also urged that the statements do not indicate that who got theAdhar Card prepared as there is no specific statement in thisregard. It is thus submitted that neither the ingredients offraudulent preparation of Adhar Card is made out against theapplicant nor the allegations of sexual assault is made out.

It is further submitted that the victim had refused to undergomedical examination and in light of the aforesaidcircumstances, the further sections which have been added arealso not made out and for all the aforesaid reasons, the applicantwho does not have any criminal history has been in Jail since09.04.2024, coupled with the fact that the applicant comes froma stable house-hold and there is no apprehension that theapplicant can influence any witness or tamper with anyevidence especially when the charge sheet has already beenfiled.

It has also been urged that the other co-accused namely Arif andHaseeb were granted the benefit of anticipatory bail in CriminalMisc. Anticipatory Bail Application No. 958 of 2024 orderdated 08.05.2024 while the other co-accused Gulfam @ Irfanwas granted regular bail in Criminal Misc. Bail Application No.5999 of 2024 by means of order dated 31.05.2024.

The learned A.G.A. has opposed the bail application and hassubmitted that from the school records, it is clear that the victimwas a minor and allegedly 13 years old girl who was lured toleave her home and thereafter as stated by the applicant that heand the victim solemnized their was per-se does not get legalacceptance as the victim was a minor.

It is further urged that in order to give shape to the illegaldesign of the applicant, a fake Adhar Card was got prepared byback dating correcting the date of birth of the victim which wasutilized to get the marriage registered, inasmuch as, her actualdate of birth was 01.01.2011 which was back dated as01.01.2006.

It is further urged that an earlier attempt of the applicant to get aseal of judicial acceptability on the illegal act was made by theapplicant including the victim by filing the Misc. Writ PetitionNo. 1709 of 2024 which came to be dismissed on 20th March,2024 with specific observations indicating that the fake Adharcard was used to get the marriage registered as well as to file awrit petition before the Division Bench and this could not havebeen facilitated without the active assistance of the applicantand thus the applicant prima facie is responsible for luring theminor victim from her house hold and put through the trauma offorcible marriage.

It is also stated that the school leaving certificate of 2011 thevictim indicated her age as 01.01.2011. This was got changed to01.01.2006 only for the purposes of indicating the age of thevictim to be major so that their alleged marriage can beregistered.

It is further urged that during investigation, it was also foundthat there was a change in the year of birth of the victim in thePariwar Register and this was also done on the basis of theAdhar Card with the fake date of birth and it was done on16.03.2024. This is after the marriage got registered on03.03.2024, on the basis of the Adhar Card with the fictitiousdate of birth. The entry made in the Pariwar Register was alsogot done while the writ petition was pending before theDivision Bench of this Court and after a detailed order had beenpassed on 13.03.2024.

It is thus submitted that the applicant is a clear beneficiary whoalleged that he had married the victim and apparently theallegations against the applicant are made out and on theaforesaid basis, the charge sheet has also been filed in the Courtand as such the bail application deserves to be rejected.

Similar submissions have been made by learned counsel for thecomplainant.

The Court has heard the learned counsel for the applicant andthe learned A.G.A. and the learned counsel for the complainantand also perused the material on record.

Apparently, the applicant and the victim appear to be in somesort of relationship. From the discrepancies noticed in the AdharCard especially considering the order passed by the DivisionBench in W.P. No. 1709 of 2024 dated 13.03.2024 and20.03.2024, there is prima facie material to infer that the AdharCard of the victim which initially had her date of birth as01.01.2011 was got changed to 01.01.2006. The school leaveingcertificate of the victim also corroborates date of birth as01.01.2011.

Considering the fact that the charge sheet has been filed and theextent of the complicity of the applicant is yet to be tested intrial and from the statement of the victim under Section 161Cr.P.C. and 164 Cr.P.C., there is clear denial of any sexualassault on her by the applicant or the other co-accused. Themedical examination was refused. It was also not disputed thatapart from the instant case, the applicant has no other criminalhistory. Whether the applicant was instrumental in getting thedate of birth changed fictitiously in the Adhar Card and was responsible for getting an entry made in the Pariwar Register isall to be seen in trial. The applicant who otherwise is of a youngage and has been in Jail since 09.04.2024 on the basis of somesort of involvement with the victim and also considering thatthe learned A.G.A. has not expressed any apprehension that theapplicant is at flight risk or can influence any witness or tamperwith the evidence in light of the fact that the charge sheet hasbeen filed. Moreover, the other co-accused have also beenenlarged on bail.

Considering the rival submissions as well as the facts andcircumstances of the case and the material available on recordincluding the accusation against the applicant, the severity ofthe punishment if convicted and the period of incarceration aswell as the fact that no apprehension has been expressed by thelearned AGA that the applicant is at the risk of fleeing justice orthat he would tamper with evidence or influence any witness,hence, at this stage, without expressing any opinion on themerits of the case, this Court is of the view that the applicant isentitled to be released on bail.

Accordingly, the instant bail application is allowed.

Let the applicant- Surru @ Israr involved in the above-mentioned case crime be released on bail on his furnishing apersonal bond with two reliable sureties each in the like amountto the satisfaction of the court concerned. At the time ofexecuting required sureties, the following conditions shall beimposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that heshall not seek any adjournment on the dates fixed for evidencewhen the witnesses are present in court. In case of default ofthis condition, it shall be open for the trial court to treat it asabuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court oneach date fixed, either personally or through his counsel. In caseof his absence, without sufficient cause, the trial court mayproceed against him under Section 229-A of the Indian PenalCode.

(iii) The applicant shall not directly or indirectly make anyinducement, threat or promise to any person acquainted with thefacts of the case so as to dissuade him from disclosing suchfacts to the Court or to any police officer or tamper with theevidence.

(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section82 Cr.P.C. is issued and the applicant fails to appear before thecourt on the date fixed in such proclamation, then, the trialcourt shall initiate proceedings against him, in accordance withlaw, under Section 174-A of the Indian Penal Code.

(v) The applicant shall remain present, in person, before thetrial court on the dates fixed for (i) opening of the case, (ii)framing of charge and (iii) recording of statement under Section313 Cr.P.C. If in the opinion of the trial court, absence of theapplicant is deliberate or without sufficient cause, then it shallbe open for the trial court to treat such default as abuse ofliberty of bail and proceed against him in accordance with law.

In case of breach of any of the above conditions, it shall be aground for cancellation of bail.

Order Date :- 8.1.2025Asheesh/-