# Atul Mishra v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-25
- **Case number:** Criminal Misc. Bail Application No. 53947 of 2021
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-mishra-v-state-of-u-p-ors-48264
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 439 - Indian
Penal Code, 1860-Section 363, 366, 376 &
POCSO Act,2012-Section 3⁄4 - Scheduled
Caste & Scheduled Tribe (Prevention of
Atrocities)
Act,
1989-Sections
3(2)v,
3(2)va-seeking for bail-victim was 14 1⁄2
years old on the date of incident-victim
and the applicant got married and
remained in company and she gave birth
to a baby-No doubt consent of minor girl
has got no value in the eyes of law but in
the present case, where the girl has given
birth to a baby from the applicant and in
her statemnt u/s 164 CrPC, she declined
to go with her parents, she is living at
Balgrih in most inhuman condition with
her infant baby, this by itself is pathetic
and would amount to adding to her
miseries-it
is
extremely
harsh
and
inhuman
to
devoid
that
baby
from
parental
love
and
affection-In
this
extraordinary condition, keeping in view
of the offence,evidence and complicity of
the accused, bail is granted to the
accused/applicant.(Para 1 to 21)

B. There are certain grey areas, where the
severity of the sentences porvided under
the Act, rightly so be diluted keeping in
view of the facts of each case. if these
rigors of the enactment is pasted hastily
or
irresponsiblity,
it
could
lead
to
irreparable damage to the reputation and
future of young whose action would have
been only innocuous and may lead to
spoiling the future life of that innocent
lovers or couple who out of sheer
innocence have initially developed and
thereafter established that relationship,
which if seen through the bioscope of
these penal provisions of the Act, 2012,
would fall within the realm of offence.
(Para 12)

The application is allowed. (E-6)

## Text

92 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

4.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2022)03ILR A92
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Misc. Bail Application No. 53947 of
2021

Atul Mishra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Ishan Deo Giri, Sri Sarvesh Pandey

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 439 - Indian
Penal Code, 1860-Section 363, 366, 376 &
POCSO Act,2012-Section 3⁄4 - Scheduled
Caste & Scheduled Tribe (Prevention of
Atrocities)
Act,
1989-Sections
3(2)v,
3(2)va-seeking for bail-victim was 14 1⁄2
years old on the date of incident-victim
and the applicant got married and
remained in company and she gave birth
to a baby-No doubt consent of minor girl
has got no value in the eyes of law but in
the present case, where the girl has given
birth to a baby from the applicant and in
her statemnt u/s 164 CrPC, she declined
to go with her parents, she is living at
Balgrih in most inhuman condition with
her infant baby, this by itself is pathetic
and would amount to adding to her
miseries-it
is
extremely
harsh
and
inhuman
to
devoid
that
baby
from
parental
love
and
affection-In
this
extraordinary condition, keeping in view
of the offence,evidence and complicity of
the accused, bail is granted to the
accused/applicant.(Para 1 to 21)

B. There are certain grey areas, where the
severity of the sentences porvided under
the Act, rightly so be diluted keeping in
view of the facts of each case. if these
rigors of the enactment is pasted hastily
or
irresponsiblity,
it
could
lead
to
irreparable damage to the reputation and
future of young whose action would have
been only innocuous and may lead to
spoiling the future life of that innocent
lovers or couple who out of sheer
innocence have initially developed and
thereafter established that relationship,
which if seen through the bioscope of
these penal provisions of the Act, 2012,
would fall within the realm of offence.
(Para 12)

The application is allowed. (E-6)

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Ishan Deo Giri, learned
counsel for the applicant, learned A.G.A.
and perused the record of the case.

2. Applicant Atul Mishra is facing
prosecution in Case Crime No.0456 of
2019, u/s 363, 366, 376 I.P.C.; Section 3⁄4 of
POCSO Act, 2012 and Sections 3(2)v,
3(2)va of the Scheduled Caste & Scheduled
Tribe (Prevention of Atrocities) Act, 1989,
Police Station-Khaga, District-Fatehpur. He
is behind the bars in connection with
aforesaid offence since 4.10.2021 and
seeking bail during trial, whereas the
victim/prosecutrix
is
languishing
at
Government Child Welfare Home (Girls),
Khuldabad, Prayagraj along with her infant
baby in her lap.
3 All. Atul Mishra Vs. State of U.P. & Ors.
93

3. Pursuant to the earlier orders of this
Court, the notices were issued to the
concerned
respondents.
The
C.J.M.
Fatehpur who vide its intimation dated
22.1.2022 informs the court that the notices
were
served
upon
Rajendra
Prasad
(Respondent No.2) personally, but of no
response. Nor learned A.G.A. has filed any
counter affidavit so far, on the other hand,
the applicant is behind the bars since
October, 2021 waiting for justice. Hence
with the help and aid of learned A.G.A. the
Court is proposing to decide the bail
application.

3. Prosecution against the applicant
was rolled by the father of the victim Ms
''A' by filing F.I.R. on 17.11.2019 u/s 363
I.P.C. with the specific allegation that his
daughter is a minor, pursuing her studies in
Class-XI, (Date of Birth : 15.6.2005 as per
her High School certificate) was enticed
away by the applicant from 06.11.2019.
This is the gist of the F.I.R.

4. Normally, this Court, on these
factual aspect of the issue, is most
uncharitable and unmerciful to such type of
accused, who used a minor girl to quench
their animal instinct and commit rape with
her, but paragraphs herein below have
compelled the Court to shift its stand for a
greater cause and in the interest of larger
good.

5. Applicability of statutory provisions
in the facts and circumstances of the case is
not a mathematical exposition or its theorem.
When the law courts apply to these
provisions, we should be careful about what
would be its end result. If after applying any
provisions in a given facts, leading to a
disastrous and catastrophic result, it is the
duty of the courts of law to mellow down its
rigors in order to achieve much more
meaningful and swallowable application of
that provision in a given facts and
circumstances of the case.

6. Now coming back to the facts of the
case in hand, after lodging of the F.I.R., the
police have recorded statements u/s 161
Cr.P.C. of the informant and his wife. From
these statements, it was surfaced that the
victim was missing since 6.11.2019, when
gone to her school and thereafter her
whereabouts were not known. Interestingly,
from the same day the applicant too was
missing. Thus it was gathered that both of
them
fled
away
to
some
unknown
destination. Ms ''A' who was student of ClassXI and as per her High School Certificate2019 her date of birth is 15th June, 2005, and
thus on the date of incident she was barely 14
years 4 months of age, provenly a minor girl.

7. Police after lodging the F.I.R. in
October, 2019, came to the informant on
2.3.2021, for recording his statement second
time (majeed bayan), Annexure-4, in which
he candidly declined to co-operate with the
police,
revealing
that
he
knows
the
whereabouts of the victim but he has decided
not to interfere in her life. He also asked the
police officials to drop the case. Accordingly,
the police on the same day has filed
CLOSURE REPORT No.14/2021 before the
court for its acceptance.

8. Since the victim was not traceable
for a considerable period, it seems it was a
black blot on the functioning of the police;
thus, they kept the matter pending.
Eventually on 4.10.2021 after getting a tip
from the informer, police arrested the
victim and her small baby in her lap along
with the applicant from east of by-pass.

After the alleged arrest of the
victim, her baby and the applicant, the
94 INDIAN LAW REPORTS ALLAHABAD SERIES
police, all of a sudden became active and
pasted Sections 3(2)5 of the SC/ST Act, as
the victim belongs to ''PASI' community.

9. After the alleged arrest, the victim
was produced for her regular statements u/s
161 and 164 Cr.P.C. (Annexures 7 and 9)
recorded on 7.1.2021 and 11.10.2021
respectively. Conjoint reading of both these
statements following common feature are
surfaced :-

(a) Victim is the student of ClassXI and having date of birth 16.6.2005.

(b) Both, the victim and the
applicant,
were
nurturing
inter-se
relationship for the last three years.

(c)
On
6.11.2019,
without
informing any one in the family or friends,
both of them have decided to fled away.
Thus from Khaga to Fatehpur, and
thereafter via Lucknow, ultimately they
reached to Delhi.

(d) After performing marriage in
the Shiva Temple, they started living in a
rented accommodation as husband and
wife for two years. During this period, out
of this relationship the prosecutrix/ victim
on 21.5.2021 has given birth to a baby, who
is now about 4 months old.

(e) In no uncertain terms, the
victim states that on her own volition and
accord she joined the company of the
applicant; both of them decided to stay at
Delhi and maintain the relationship as
husband and wife. Even now the victim
wants to live with the applicant as his wife
and does not wish to go back with her
parent.

10. After the aforesaid, since on the
date of incident the victim was minor,
consequently, all the authorities at the
subordinate level, unmindful of the fact that
the victim is carrying a baby in her lap, sent
her to RAJKIYA BALGRIH (BALIKA)
KHULDABAD, PRAYAGRAJ and the
applicant is in jail. An order to this effect
was passed by Juvenile Justice Board,
Fatehpur on 8.10.2021 and since then she is
residing at the said ''Balgrih' with her baby.
On the other hand learned Additional
Sessions Judge/ Special Judge (POCSO
Act), Fatehpur has rejected the bail
application moved on behalf of applicant,
having Bail Application No.2346/2021,
vide order dated 23.11.2021. Hence the
present bail application before this Court.

11. As mentioned above, undisputedly
on the date of incident i.e. 06.11.2019, the
victim Ms. ''A' was a minor girl and her
''consent' as contemplated u/s 375/376
I.P.C. has got no value in the eyes of law.
This seems to be conservative approach to
deal and decide the instant issue and rightly
so. But as I have stated in the opening part
of the order, that applicability of any
statutory
penal
provision
is
not
a
mathematical exposition or theorem. It
contains inherent flexibility to cope up an
extraordinary situation and to have more
meaningful and larger good.

12. There can be no second thought as
to the seriousness of the offence under the
POCSO Act and the object to achieve.
Enactment
of
POCSO
Act
was
to
effectively address the heinous crime of
sexual abuse and sexual exploitation of
children. The Act was introduced to
provide protection of children from the
offences of sexual assault and harassment
etc. This Act also provides for safeguarding
the interest of the child at every stage of
judicial process. But this laudable object
must have some genuine and inherent
exceptions too. It is imperative for the
Court of law to draw thin line that
demarcates the nature of acts that should
3 All. Atul Mishra Vs. State of U.P. & Ors.
95
not be made to fall within the scope of this
enactment. There are certain gray areas,
where the severity of the sentences
provided under the Act, rightly so be
diluted keeping in view the facts of each
case. If these rigors of the enactment is
pasted hastily or irresponsibly, it could lead
to irreparable damage to the reputation and
future of young whose actions would have
been only innocuous and may lead to
spoiling the future life of that innocent
lovers or couple who out of sheer
innocence have initially developed and
thereafter established that relationship,
which if seen through the bioscope of these
penal provisions of Act of 2012, would fall
within the realm of offence.

13. Growing incidences where
teenagers and young adults fall victim of
the offences under the POCSO Act, being
slapped by the penal provisions of
POCSO Act without understanding the
far reaching implication of the severity of
the enactment, is an issue that brings
much concern to the conscience of this
Court. A reading of the statement of
objects and reasons of POCSO Act would
show that, as mentioned, to protect the
child from the offences of sexual abuse,
sexual
assault
and
harassment,
pornography, pursuant to the Article-15
of the Constitution of India, 1950 and the
Conservation on the Rights of the
children. However, a large array of the
cases filed under the POCSO Act seems
to be those arising on the basis of the
complaints/F.I.Rs. lodged by the families
of adolescents and teenagers who are
involved in romantic relationship with
each other. The scheme of the Act clearly
shows that it did not intend to bring
within its scope or limits, the cases of the
nature where the adolescents or teenagers
involved in the dense romantic affair.

14. This Court deems it fit and
necessary to take a moment to delve into an
important aspect, the awareness of which is
crucial in understanding and appreciating
with the cases of instant nature. It is crucial
to accept the science and psychology of an
adolescent and young adulthood at this
juncture. This is because social and
biological
phenomenons
are
widely
recognised as determinates of human
development, health and socio-economic
attainment across the life course, but our
understanding of the underlying pathways
and processes remains limited. Therefore, a
"bio-social approach" needs to be adopted
and appreciated i.e. one that conceptualizes
the biological and social requirements of
two teenagers, who on account of mutual
infatuation are attracted and decide for their
future. Their decision could be impulsive,
immature but certainly not sinful or tainted
as branded in the F.I.R. or complaint of the
informant.

15. Reverting back to the facts of the
present case, when both the parties (boy as
well as girl) who are in their teens and
college going, both of them met in the
school during NCC parade, developed a
natural inclination towards each other,
thereafter cutting across the caste barrier
between them eventually have decided to
marry with each other. No doubt the girl
was barely 141⁄2 years on the date of
incident. Both of them fled away, got
married in a shiv Temple at Delhi and
remained in company with each other for
almost two years during which the girl has
given birth to a baby, who is now 7-8
months old. She was clear in her mind that
she does not want to go back with her
parent but wants to remain in the company
of the applicant, to whom she has accepted
her husband. This relationship has given
birth to a baby on 21.5.2021.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Assessing the totality of the
circumstances, the childhood domestic
training of the adolescent teenagers should
be blamed and targeted, where their parent
have miserably failed to inculcate the
values of life, the family traditions, their
focus towards the life and their priorities. It
is the parent to be blamed for their
complete inaction and their responsibilities
qua their children. Lodging the F.I.R.
would not be going to absolve them from
their failure as parent. But all said and
done, if these teens decided to enter into
nuptial knot and now they have baby out of
this relationship, certainly rigors of POCSO
Act would not come in their way. The girl
is not sexually abused or no sexual assault
was made upon her, nor she has been
sexually harassed by the applicant, as
contemplated by the object of POCSO Act.

17. No doubt consent of minor girl
has got no value in the eyes of law, but in
the present scenario where the girl has
given birth to a baby from the applicant and
in her 164 statement, she has declined to go
with her parent and from last 4-5 months
residing
at
Rajkiya
Balgrih
(Balika)
Khuldabad, Prayagraj in most inhuman
condition with her infant baby, this by itself
is pathetic and would amount to adding to
her miseries.

18. This is extremely gloomy
situation, where the applicant is in jail since
4.10.2021 for the alleged sin committed by
him while marrying with a girl belonging to
scheduled caste and both of them are
peacefully residing as husband and wife. It
is extremely harsh and inhuman to devoid
that baby from the parental love and
affection on account of the fact that both of
them loved each other and decided to
marry, when the girl was minor. Even today
the boy (the applicant) is more than ready
to keep his wife and baby with him and
would take good care of both.

19. Thus, assessing the totality of
facts
and
circumstances,
in
this
extraordinary condition and keeping in
view the nature of the offence, evidence on
record regarding complicity of the accused
and without expressing any opinion on the
merits of the case, the Court is of the view
that the applicant has made out a case for
bail. The bail application is allowed.

20. The In-Charge of Rajkiya
Balgrih (Balika) Khuldabad, Prayagraj
is
hereby
directed
to
release
the
victim/prosecutrix Ms. Anju Devi w/o
Atul Mishra (the applicant) with her
baby forthwith.

21. Let the applicant Atul Mishra,
who is involved in aforementioned case
crime be released on bail on his furnishing
a personal bond and two sureties each in
the like amount to the satisfaction of the
court concerned subject to following
conditions. Further, before issuing the
release order, the sureties be verified.

(I) IT IS TRUE THAT THE
APPLICANT IS BEING BAILED OUT
ON THE ASSURANCE GIVEN BY
THE LEARNED COUNSEL FOR THE
APPLICANT THAT THE APPLICANT
IS
MORE
THAN
READY
AND
WILLING TO KEEP HIS WIFE AND
BABY WITH HIM. THE COURT
FEELS TO SECURE THE FUTURE OF
THE
GIRL
AND
BABY,
IT
IS
DIRECTED
THAT
AFTER
THE
RELEASE
ON
BAIL,
THE
APPLICANT SHALL PRODUCE A
BANK DRAFT OF RS.5,00000/- (5
LACS) IN FAVOUR OF HIS WIFE MS.
ANJU DEVI AND HER BABY, WHICH
3 All. Atul Mishra Vs. State of U.P. & Ors.
97
SHALL BE HANDED OVER TO THE
VICTIM
BEFORE
THE
COURT
WITHIN A PERIOD OF SIX MONTHS
FROM THE DATE OF HIS RELEASE
ON BAIL, ELSE THE BAIL ORDER IS
LIABLE TO BE CANCELLED BY THE
COURT
CONCERNED
ITSELF
WITHOUT
REVERTING
THE
ORDERS TO THE COURT.

(iI) THE APPLICANT SHALL
FILE AN UNDERTAKING TO THE
EFFECT THAT HE SHALL NOT SEEK
ANY ADJOURNMENT ON THE DATE
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.

(iiI) 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 IPC.

(iv)
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., MAY BE ISSUED AND IF
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 IPC.

(v) THE APPLICANT SHALL
REMAIN
PRESENT,
IN
PERSON,
BEFORE THE TRIAL COURT ON
DATES FIXED FOR (1) OPENING OF
THE
CASE,
(2)
FRAMING
OF
CHARGE AND (3) 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.

(vi) THE TRIAL COURT MAY
MAKE
ALL
POSSIBLE
EFFORTS/ENDEAVOUR AND TRY TO
CONCLUDE THE TRIAL WITHIN A
PERIOD OF ONE YEAR AFTER THE
RELEASE OF THE APPLICANT.

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

22. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.

23. Since the bail application has been
decided
under
extra-ordinary
circumstances, thus in the interest of justice
following additional conditions are being
imposed just to facilitate the applicant to be
released on bail forthwith. Needless to
mention that these additional conditions are
imposed to cope with emergent condition-:

1.
The
applicant
shall
be
enlarged on bail on execution of personal
bond
without
sureties
till
normal
functioning of the courts is restored. The
accused will furnish sureties to the
satisfaction of the court below within a