Bail Application
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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]