Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: A Bail petition was contemplated by Sandeep Sharma, J. where the petitioner was behind the bar for two months and had approached the Court under Section 439 of CrPC, for regular bail.

The petitioner was charged under Section 9 of Protection of Child Marriage Act, 2006 and Section 6 of Protection of Children from Sexual Offences Act. The instant bail application arises out of the case where the complainant was a coordinator of child helpline; the complaint was related to a minor who was residing along with the bail petitioner with an intention to solemnize the marriage. Complainant further alleged that as per information prosecutrix had a child aged 7 months. Such facts were found to be true in the investigation by the police. Police further recorded the statements of prosecutrix under Section 154 CrPC, where she stated that she knew the petitioner since her childhood and wanted to marry him. The prosecutrix had stated that she was living with the bail petitioner out of her own will and they were married according to the local custom. Her statements were recorded under Section 165 CrPC where she reiterated the same and admitted that she knew the petitioner since childhood, she also stated that prior to her marriage, her husband was married to her elder sister who died due to prolonged illness. She stated to the magistrate that complaint was made at the insistence of Coordinator Child Helpline, who had assured that in the event of filing complaint they would take care of her child and would also pay money.

On the basis of the aforesaid statement made by the prosecutrix, formal FIR, came to be lodged against the present bail petitioner under Section 9 of the Prohibition of Child Marriage Act. However, Section 6 of the POCSO, came to be incorporated in the FIR subsequently and bail petitioner was behind the bars.

Advocate General further contended that though the statement of the prosecutrix suggests that she of her own volition solemnized marriage with the bail petitioner, but keeping in view her age, consent, if any, was immaterial and as such, present bail petition having been filed by the bail petitioner may be dismissed.

The Court observed that the statements of prosecutrix given to magistrate were convincing and satisfactory. Court believed that the girl was not kidnapped by the petitioner also she of her own violation joined the company of the petitioner. It further emerged from the record that marriage inter se prosecutrix, who was admittedly minor at the time of the alleged incident, took place with the prior consent/agreement of families of bail petitioner as well as prosecutrix. The Court further held that, “No doubt, in the case at hand, age of the prosecutrix was less then 18 years at the time of alleged incident, but having taken note of the fact that prosecutrix had been living in the house of the bail petitioner for the last one year and she has delivered one baby boy, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period, during the trial.

The Court noted that the validity of marriage inter se prosecutrix and the petitioner can only be decided in proceedings before the appropriate Court of law. The Court held that, “it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.” Hence, bail was granted to the petitioner on certain terms and condition.[Partap v. State of Himachal Pradesh, 2019 SCC OnLine HP 1472, decided on 04-09-2019]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 439 of CrPC, a Single Judge Bench of Budihal R.B., J. held that even if the specific overt act is not alleged against the accused in the complaint itself, a prima facie case can be made out against him considering all other prima facie material along with the complaint.

The background of the case was set in the dispute relating to construction of a house. In connection with the same dispute the petitioner is alleged to have assaulted the daughter of the complainant that resulted in her death.

Learned counsel for the petitioner submitted that the complaint averments only go to show that the petitioner assaulted the deceased on her cheek/neck and she fell down unconscious. He submitted that there was no prima facie case against the petitioner that he was the main cause for the death of the deceased. Hence, he prayed that the petitioner be enlarged on bail.

The High Court perused the petition, the FIR, the complaint, and the charge-sheet produced. The Court was of the opinion that it was no doubt true that there was no mention in the complaint about the petitioner assaulting the deceased with a stone, however, a complaint is not an encyclopedia. The eyewitness in her statement had categorically stated that the petitioner assaulted the deceased with a stone. The Court also perused the medical opinion given by the doctor as to the cause of death of the deceased; and held that the material on record goes on to make out a prima facie case against the accused. Accordingly, the Court declined to exercise discretion in favor of the petitioner and the petition was rejected. [Balaraj v. State, 2017 SCC OnLine Kar 2451, order dated 9.10.2017]