In CRM-M-26782-2022-PUNJ HC-P&H HC grants regular bail to man booked under POCSO Act over allegations levelled by his wife regarding one incident which took place when she was minor, says FIR was belatedly lodged after husband filed RCR petition u/s 9 HMA Justice Vikas Bahl [27-06-2022]

Read Order: Dinesh v. State of Haryana 

LE Correspondent

Chandigarh, July 4, 2022: The Punjab and Haryana High Court has recently granted regular bail to a POCSO Act accused whose wife got an FIR lodged against him on the dual grounds of the accused allegedly coercing her into marrying him and committing physical act with her two years ago when she was still a minor. 

The Bench of Justice Vikas Bahl granted the above-stated relief considering the fact that no date was mentioned in the FIR when the alleged incident took place and that the FIR, lodged after a delay of two years, was registered after the accused-husband filed a petition under Section 9 of the Hindu Marriage Act. 

The present petition was filed under Section 439 of the Cr.P.C. for the grant of regular bail to the petitioner in an FIR registered under Sections 6, 12 and 17 of the Protection of Children from Sexual Offences Act, 2012 and Section 506 of the Indian Penal Code, 1860 (Sections 376(2) (N), 323, 328 and 406 IPC added later on). 

The facts (as per the petitioner’s counsel) were such that the petitioner married the complainant on June 25, 2021 and regarding the same, reference was made to a marriage certificate issued by the Arya Samaj Mandir Trust (Registered). It was the petitioner’s claim that on the date of marriage, the complainant was a major. This claim was supported by the date of birth mentioned on the complainant’s Aadhaar Card, which was  September 23, 2001. 

Allegedly, after the said marriage, the complainant went to her parental house and thereafter, the petitioner was unable to contact the complainant and thus, he filed a petition under Section 9 of the Hindu Marriage Act, 1955 for seeking restitution of conjugal rights. After filing of the said petition, the present FIR was registered alleging therein that two years back when the petitioner was a minor (17-year old) and their marriage was not solemnised physical relationship was established. 

It was argued by the petitioner’s counsel that the FIR was registered after a delay of 2 years from the date of the alleged incident. It was further argued that the allegations against the petitioner qua forcing the complainant for solemnising marriage was nothing but a counter-blast to the petition filed by the petitioner under Section 9 of the Hindu Marriage Act, 1955.

It was further submitted that the petitioner was in custody since December 07, 2021 and there were as many as 22 prosecution witnesses and none of them were examined, thus, the trial was likely to take time.

The State counsel, on the other hand, opposed the present application for regular bail and submitted that as per the allegations made in the FIR, the offences under which the FIR was registered were made out. It was further submitted that since on the date of the occurrence, the complainant was alleged to be 17 years of age, thus the provisions of the POCSO Act were rightly invoked.

After considering the rival submissions, the Court observed at the very outset that the petitioner was under custody since December 07, 2021 and out of the 22 prosecution witnesses, none were examined, creating a probability of the Trial taking time. 

Further, apart from noting the fact that the petitioner produced a marriage certificate and also the complainant’s Aadhar Card to prove her majority at the time of their marriage, the Court also observed that in the FIR, no date of any incident was mentioned and the said FIR was registered after filing of the petition by the petitioner under Section 9 of the Hindu Marriage Act, 1955. 

“Prima facie, it also appears that the FIR has been registered after much delay”, the Court held while also observing that the co-accused of the petitioner, Yogesh was granted interim protection by a coordinate Bench of the High Court in a petition under Section 438 Cr.P.C.

Thus, keeping in view the above stated facts and circumstances, the present petition was allowed and the petitioner was ordered to be released on bail on his furnishing bail / surety bonds to the satisfaction of the concerned trial Court/ Duty Magistrate and subject to him not being required in any other case.

However, the Court clarified, 

“… in case, the petitioner threatens or influences any witness, it would be open to the State to move an application for cancellation of the present regular bail granted to the petitioner.”