# Moharpal Maurya v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** Crl. Misc. Bail Application No. 6693 of 2023
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moharpal-maurya-v-state-of-u-p-ors-50304
- **Pages:** 7

## Headnote

A. Criminal Law - Indian Penal Code, 1860Sections 366, 120B, 176, 372, 373 & 376AB
Protection of Children from Sexual Offences
Act, 2012-Section 5/6 - The Immoral Traffic
(Prevention) Act, 1956-Section 5-immoral
trafficking of the victim aged about 14 to 15
years-victim was sold to accused persons
one after another and they solemnized
marriage of convenience with victim-her
confessional statement as well as consistent
stateme consistent statement recorded u/s
161 and 164 CrPC narrates the same version
of FIR-It is settled law that consent of a
minor girl is immaterial.(Para 1 to 20)

The application is rejected. (E-6)

List of Cases cited:

## Text

5 All. Moharpal Maurya Vs. State of U.P. & Ors.
839
in this case do not apply in favour of the
applicants.

(g) In M.N. Ojha and Others Vs. A.K.
Srivastava and Another, (2009) 9 SCC
682, the complaint was found to be as
counter blast to the action taken by the
appellants in their official capacity for
realizing the loan amount due against the
complainant. Facts of this case are totally
different from the facts of the cited case.
Hence, due to difference of facts and
circumstances of both the cases, this ruling
can not be applied in favour of the
applicants.

19. On the basis of above discussion,
this Court is of the view that an offence
took place on the same date, time and place
for which both the parties have initiated
criminal proceedings. The truth would
appear only after appraisal of the evidence.
It does not appear that the impugned
criminal proceeding initiated on behalf of
opposite party no.2 is an abuse of process
of Court. The grounds taken by applicants
are not sufficient to throw away the case of
opposite party no.2. By quashing the
impugned criminal proceedings, no useful
purpose would be served. Let the truth
prevail after completion of trial.

20. Thus this Court is of the view that
the present application is devoid of merits
and is not sustainable in the eye of law and
is liable to be dismissed.

Order

The present Application U/S 482
Cr.P.C.
is
hereby
dismissed
without
prejudice to the merit of the case.
----------
(2023) 5 ILRA 839
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2023
BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Bail Application No. 6693 of 2023

Moharpal Maurya ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Nagendra Kumar Singh

Counsel for the Respondents:
Sri Sunil Srivastava, A.G.A., Ms. Maimoona
Fatima

A. Criminal Law - Indian Penal Code, 1860Sections 366, 120B, 176, 372, 373 & 376AB
Protection of Children from Sexual Offences
Act, 2012-Section 5/6 - The Immoral Traffic
(Prevention) Act, 1956-Section 5-immoral
trafficking of the victim aged about 14 to 15
years-victim was sold to accused persons
one after another and they solemnized
marriage of convenience with victim-her
confessional statement as well as consistent
stateme consistent statement recorded u/s
161 and 164 CrPC narrates the same version
of FIR-It is settled law that consent of a
minor girl is immaterial.(Para 1 to 20)

The application is rejected. (E-6)

List of Cases cited:

1. St. of Raj, Jaipur Vs Balchand @ Balia (1977)
AIR 2447, 1978 SCR (1) 535

2. Ram Govind Upadhyay Vs Sudarshan Singh
(2002) 3 SCC 598

3. Neeru Yadav Vs St. of U.P. (2013) 15 SCC
422

4. Gurcharan Singh Vs St.(Delhi Admin.) (1978)
1 SCC 118

5. St. of U.P. Vs Amar Mani Tripathi (2005) 8
SCC 21
840 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Manno Lal Jaiswal Vs St. of U.P. & anr..
(2022) SCC Online SC 89

7. Ashim Vs NIA (2022) 1 SCC 695

8. IshwarJi NagaJi Mali Vs St. of Guj. &
anr..(2022) SCC Online SC 55

9. Prahlad Singh Bhati Vs NCT of Delhi & ors.
(2001) 4 SCC 280

10. Mahipal Vs Rajesh Kumar (2020) 2 SCC 118

11. Ms. Y Vs St. of Raj. & ors. (2022) SCC
Online SC 458

12. Manoj Kumar Khokhar Vs St. of Raj. & ors.
(2022) 3 NCC 501

13. Deepak Yadav Vs St. of U.P. & anr.. (2022)
8 SCC 559

14. Rajendra Agarwal @ Bablu Vs St. of U.P. &
ors., Bail Application No. 833 of 2023

15. Manoj Kumar Khokhar Vs St. of Raj. & anr.
(2022) 3 SCC 501 a Brijmani Devi Vs Pappu
Kumar(2022) 4 SCC 497

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Facts of the present case are
disturbing which indicate that this case is of
immoral child trafficking. Victim is a minor
girl aged about 14 to 15 years and was
working as an scavenger. According to
F.I.R., lodged by father of victim, she was
missing since 29.9.2020 and one of the coaccused Chhabinath was a suspected person
that he has enticed the victim and
kidnapped her from lawful guardianship.

2. It appears that victim returned on
25.2.2022 i.e. after 1 year 5 months.
Statement of victim were recorded under
Sections 161 and 164 Cr.P.C. wherein she
narrated her entire ordeal of repeated
sexual assault and how she was sold from
one accused to another.

3. According to victim, her ordeal of
immoral trafficking was commenced when
co-accused Gaurav alias Sonu kept her for
about 45 days in a house belonging to his
brother where he repeatedly raped her and
later on sold to present applicant for ₹
60,000/-.

4. Thereafter, applicant solemnised
marriage with victim and she stayed for
about 1 year along with him and thereafter
co-accused Gaurav again contacted her and
sold to other co-accused viz., Surendra
Kumar Singh @ Shani for Rs. 50,000/-
where she again lived as his wife for about
3-4
months,
however,
he
repeatedly
assaulted her and on one day, victim
slipped away from that place and when she
met
co-accused
Rinku.
The
victim
solemnised Court marriage with him and
lived there as husband and wife and
thereafter was traced from his house.

5. Sri Nagendra Kumar Singh, learned
counsel for applicant has submitted that
applicant has not purchased the victim on
payment, rather they lived together as
husband
and
wife
after
solemnizing
marriage without any force and she left his
company on her own will. In the statements
also, victim has not stated that applicant
has committed any cruelty with her or he
assaulted her or entered into physical
relationship against her will. He is not part
of any child trafficking.

6. Learned counsel has also submitted
that co-accused Surendra Kumar @ Shani,
who has been alleged by victim that not
only he married to her but he assaulted her
also, has already been granted bail by coordinate Bench of this Court. Therefore,
5 All. Moharpal Maurya Vs. State of U.P. & Ors.
841
applicant who is in jail since 16.10.2022
may be released on bail.

7. Sri Sunil Srivastava, learned
A.G.A. for State as well as Ms. Maimoona
Fatima, learned counsel for High Court
Legal Services Committee have opposed
the bail and submitted that it was a case of
child trafficking, wherein victim was sold
to accused persons one after another and
accused persons have solemnised marriage
of convenience with victim and sexually
assaulted the victim also. All accused
persons were acting like a gang and one of
the co-accused (Gaurav) was kingpin, who
acted like a broker. The victim has narrated
her ordeal in details in her statement
recorded under Sections 161 and 164
Cr.P.C. Therefore, applicant may not be
released on bail and this Court may deal
with accused persons strictly.

8. Heard learned counsel for parties
and perused the record.

9. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be
tersely put as bail, not jail.

(B) Power to grant bail under Section
439 Cr.P.C., is of wide amplitude but not an
unfettered discretion, which calls for
exercise in a judicious manner and not as a
matter of course or in whimsical manner.

(C) While passing an order on an
application for grant of bail, there is no
need to record elaborate details to give an
impression that the case is one that would
result in a conviction or, by contrast, in an
acquittal.
However,
a
Court
cannot
completely divorce its decision from
material aspects of the case such as
allegations made against accused; nature
and gravity of accusation; having common
object or intention; severity of punishment
if allegations are proved beyond reasonable
doubt and would result in a conviction;
reasonable apprehension of witnesses being
influenced by accused; tampering of
evidence; character, behaviour, means,
position
and
standing
of
accused;
likelihood of offence being repeated; the
frivolity in the case of prosecution;
criminal antecedents of accused and a
prima facie satisfaction of Court in support
of charge against accused. The Court may
also take note of participation or part of an
unlawful
assembly
as
well
as
that
circumstantial evidence not being a ground
to grant bail, if the evidence/ material
collected establishes prima facie a complete
chain of events. Parity may not be an only
ground but remains a relevant factor for
consideration of application for bail.

(D) Over crowding of jail and gross
delay in disposal of cases when undertrials
are forced to remain in jail (not due to their
fault) may give rise to possible situations
that may justify invocation of Article 21 of
Constitution, may also be considered along
with other factors.

(See, State Of Rajasthan, Jaipur vs.
Balchand @ Baliay (AIR 1977 SC 2447 :
1978 SCR (1) 535; Gurcharan Singh vs.
State (Delhi Administration), (1978) 1
SCC 118); State of U.P. vs. Amarmani
Tripathi, (2005) 8 SCC 21; Prasanta
Kumar Sarkar vs. Ashis Chatterjee and
Anr (2010)14 SCC 496; Mahipal vs.
Rajesh Kumar, (2020) 2 SCC 118;
Ishwarji Mali vs. State of Gujarat and
another, 2022 SCC OnLine SC 55;
Manno Lal Jaiswal vs. The State of U.P.
and others, 2022 SCC OnLine SC 89;
Ashim vs. National Investigation Agency
(2022) 1 SCC 695; Ms. Y vs. State of
Rajasthan and Anr :2022 SCC OnLine
SC 458; Manoj Kumar Khokhar vs.
State of Rajasthan and Anr. (2022) 3
842 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 501; and, Deepak Yadav vs. State of
U.P. and Anr. (2022) 8 SCC 559)

10. The Court has taken note of
apathy of the victim. The Court has
summoned
Chairperson,
CWC,
Shahjahanpur in order to verify whether the
Committee
has
discharged
all
responsibilities towards victim diligently or
not? It was informed that victim was
communicated her rights and that she can
avail facility of a support person by a
written
communication.
However,
the
victim has denied. She has given statement
before the members of C.W.C. and narrated
same version as stated her statement
recorded under Sections 161 and 164
Cr.P.C. and that she wants to live along
with her mother.

11. This Court has passed certain
directions in regard to working of C.W.C.
in the judgement of Rajendra Agarwal
Urf Bablu vs. State of U.P. and others,
Bail Application No. 833 of 2023 and
relevant parts
thereof
are mentioned
hereinafter -:

"25. The above referred procedure of
Committee and additional functions and
responsibilities of Committee entrusted a
great responsibility to Child Welfare
Committee that it shall hold its sittings in
the premises of a children's home or, at a
place in proximity of children's home or, at
a suitable premises in any institution run
under the Act for children in need of care
and protection. It further provides that it
shall be ensured that no person or persons
unconnected with case remains present in
room when session is in progress and only
those persons shall be allowed to remain
present, in presence of whom child feels
comfortable. Committee shall hold its
sittings in a child friendly premises which
shall not look like a Court Room in any
manner. Committee has to review the
Children's Suggestion Book atleast once in
a month.

26.
Concept
of
Child
Welfare
Committee
has
important
factor
in
implementation of JJ Act, 2015 and JJ
Rules,
2019.
In
the
present
case
considering gravity of allegations, victim
does require a very special and effective
counselling by an experienced counsellor.

27. In the backdrop of above referred
statutory provisions it is clear that Child
Welfare
Committee
has
a
great
responsibility when it is dealing with a case
of minor girl victim, as the case in hand,
who has suffered mental and physical
trauma of repeated assault for many years.
In such cases it would not be a mere
formality of Child Welfare Committee to
comply with above referred statutory
provisions but it would require more
cautious approach. In such cases victim
should be dealt with extra care and
responsibility and for that members of
Child Welfare Committee required a trained
support
system,
who
can
undertake
counselling of such victims keeping in
view their sufferings.

28.
National
Commission
for
Protection of Child Rights (NCPCR) has
launched a training module for Child
Welfare Committee. The module will be
more beneficiary if it includes a requisite
training to deal with minor victims of
sexual assault.

29. Effect of act/ offence of rape is not
momentary but it got pasted on mind, heart,
body and soul of the victim and the object
of Child Welfare Committee is to undertake
such endeavours to erase such memories by
counselling and it should be done by well
trained counsellors who have experience of
treating such minor victims under proper
guidance.
5 All. Moharpal Maurya Vs. State of U.P. & Ors.
843

30. In view of above, Ministry of
Women
and
Child
Development,
Government of U.P., Lucknow through its
Secretary is directed to ponder on above
referred issue by initiating process of
interaction with all stakeholders in order to
make Child Welfare Committee and its
Members
more
competent,
more
responsible, more generous and more
compassionate to deal with such cases, as
the case in hand.

31. While undertaking above exercise
it shall also take note the provisions of Rule
35 of JJ Rules, 2019 which provides mental
health for children at Child Care Institution.
Sub-rule (5) thereof provides that every
Institution shall have the services of trained
counsellors or collaboration with external
agencies such as child guidance centres,
psychology and psychiatric departments or
similar Government and non-Governmental
agencies, for specialized and regular
individual therapy for child.

32. The object of above exercise is to
provide sincere and appropriate counselling
to minor victim and exercise shall not be
limited to above observations. It is up to the
senior officers of Department to come up
with a concrete plan in order to achieve the
above referred observations of this Court."

12. Considering above referred
factual aspects of this case as well as
submission of learned counsel for rival
parties and law as referred above, it
transpires that in the present case, a minor
girl has suffered a lot not only her body
was ravished many times by number of
persons but she has suffered mental trauma
also. From the facts as referred above, it is
evident that victim was sold to accused
persons one after another and they
solemnised marriage of convenience and
sexually assaulted the victim and some
accused persons have physically assaulted
her also. There are evidence that victim was
sold and purchased like a commodity. This
act of selling the human being like a
commodity was nothing but a dark huge
black spot on society and accused persons
including applicant are not only accused of
the offence committed against victim but
they are accused to the entire society as
well.

13. The applicant and co-accused
have treated a minor girl like a vegetable
sold in an open market and not only entered
a marriage of convenience but made
physical relationship with her with or
without consent which was illegal as the
settled position of law is that consent, if
any,
of
a
minor
girl
for
physical
relationship is immaterial.

14. In the present case, the only
relationship
between
accused
persons
including applicant and victim was a
relationship with her body only. There was
no relationship of mind or emotions.

15. Contention of learned counsel for
applicant that victim had stayed along with
him on her own will and he was not part of
any child trafficking appears to be contrary
to the evidence on record including the
confessional statement as well as consistent
statement
of
victim
recorded
under
Sections 161 and 164 Cr.P.C.

16. It has also been brought on record
that co-accused Surendra Kumar @ Shani
has already been granted bail by coordinate Bench of this Court, however,
reasons given therein do not appear to be in
terms of judgement of Supreme Court in
the cases of Manoj Kumar Khokhar vs.
State of Rajasthan and Anr. (2022) 3
SCC 501 and Brijmani Devi vs. Pappu
Kumar, (2022) 4 SCC 497 wherein
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court has held that while granting
bail to accused persons, High Court should
give specific findings/reasons in this
regard. The reasons given by co-ordinate
Bench in co-accused case are as follows -:

"After perusing the record in the light
of the submissions made at the bar and
after taking an overall view of all the facts
and circumstances of this case, the nature
of evidence and also the absence of any
convincing
material
to
indicate
the
possibility of tampering with the evidence,
this Court is of the view that the applicant
may be enlarged on bail."

17. Considering the reasons given by
co-ordinate Bench as well as law as held in
Manoj Kumar Khokhar and Brijmani Devi
(supras), it appears that certain relevant
facts were not brought on record before coordinate Bench as well as that it was a case
of child trafficking, therefore, this Court is
declining prayer for bail on the ground of
parity.

18. As discussed above and considering
that applicant is part of child trafficking
nexus and it is not only a crime against
victim, a minor girl, but it is a crime against
society and, therefore, the Court is of
considered opinion that no case of bail is
made out in favour of applicant in Case
Crime No. 438 of 2020 under Sections 366,
120-B, 176, 372, 373, 376 AB I.P.C., Section
3/4 of POCSO Act and Section 5 of Immoral
Traffic (Prevention) Act, 1956, Police
Station- Nigohi, District- Shahjahanpur.

19.

Before
parting
with
this
judgement, some reference is required to
the menace of child trafficking in India.

20. The National Crime Record
Bureau complies crime statistics reported
by different States and Union Territories
and same are published in its manual
publication. In the report of 2022, it was
reported that number of cases in which
children below 18 years trafficked during
2018 to 2020 were 941, 883 and 750
respectively as well as number of children
traffic below 18 years during 2018 to 2020
were 2772, 2863 and 2222 respectively. It
also gives the profile of child below 18
years rescued in India from 2018 to 2020
were 2383, 2693 and 2135 respectively. All
the above details are based on consolidated
report from all the States.

21. If we look the anti trafficking laws
in India, they are Article 21 of the
Constitution of India which prohibits
trafficking in human beings and beggar and
other similar forms of forced labour and in
contravention of this provision, there shall
be a punishable offence in accordance with
law. There is an Act viz., Immoral Traffic
(Prevention) Act, 1956 which indicates that
with the prior object to abolish the traffic as
an organized means of living. There are
other laws viz., Child Labour (Prohibition
and Regulation) Act, 1986, etc.

22. The Government of India as well
as a State Government are having dedicated
Ministries as well as Commissions and
there are number of Non Government
Organisation who are actively trying to
eradicate the trafficking of human being of
child as well as to rescue the children from
the web of illegal trafficking. Still a lot has
to be done. The child trafficking is a crime
against humanity and Society, therefore,
each citizen of the country has to give some
effort in order to check and to stop such
trafficking and for that citizens have to kept
their eyes open and in case of any
suspected
movement
of
children
or
otherwise is found, they have to report
5 All. Jagdish Vs. State of U.P.
845
immediately to the concerned police station
or NGO or any other appropriate place as
well as we have to discourage child labour,
child beggars to create a movement in the
society so that nexus between web of child
trafficking maybe cracked and innocent
children may not be trapped in their web as
well as we have to take care as the society
to help the rescued child/children.

23. Accordingly, the outcome of
above discussion is that bail application of
applicant
is
rejected
with
above
observations.
----------
(2023) 5 ILRA 845
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Bail Application No. 31499 of 2022

Jagdish ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Pawan Kumar Shukla, Sri Ram Kumar

Counsel for the Respondent:
Sri Rishi Chaddha, A.G.A., Sri Lalit Kumar Shukla

A. भा०दं०सं०- धारा 302, 307 एवं धारा 27/30
आयुध अधधनियम-सूचिाकर्ाा का चचेरा भाई जब खेर्
जोर्कर अपिा ट्रैक्टर लेकर गााँव आ रहा था, र्ो गााँव के
ही आठ िाममर् अमभयुक्र् अंधाधुंध फायररंग शुरू कर दी,
जजसमें आठ लोग गम्भीर रूप से घायल हो गये जजसमें
उसका एक पडोसी रूप मसंह भी था, जजसकी उपचार के
दौराि मृत्यु हो गई-अपराध में वर्ामाि आवेदक के पुत्र िे
उसकी लाईसेंसी बंदूक लाकर दी और जजससे उसिे
अंधाधुन्ध गोमलयााँ बरसायीं और चोटटल गवाहों को भी
गोली लगी एवं मृर्क की भी गोली लगिे से ही मृत्यु हुई।
शेष िाममर् अपराधधयों के ववरूद्ध आरोपपत्र िहीं
दाखखला ककया गया है व आरोप पत्र केवल वर्ामाि
आवेदक और उसके पुत्र के ववरुद्ध ही दाखखल ककया गया
है-मृर्क का सूचिाकर्ाा से कोई भी सम्बन्ध िहीं है,
जबकक वह आवेदक का जािकार है। वास्र्व में
सूचिाकर्ाा के लोग आवेदक के लोगों के साथ मारपीट
करिे आए और फायररंग की, जजससे मृर्क की मृत्यु हो
गई जो बीच बचाव करिे आया था और इस सम्बन्ध में
मृर्क के भाई िे प्रथम सूचिा ररपोटा भी दजा करायी थी,
परन्र्ु उसमें अंनर्म ररपोटा प्रेवषर् कर दी गई और
वर्ामाि में एक ववरोध याधचका दाखखल की गई है,
जजसपर अभी निर्ाय आिा शेष है-प्रथम सूचिा ररपोटा
एक कधथर् चक्षुदशी िे दजा करायी थी, जजसमें आठ लोगों
को अपराधी के रूप में िाममर् ककया गया था और शस्त्र
भी िाममर् ककये गये थे, परन्र्ु मात्र आवेदक और उसके
पुत्र को छोडकर बाकी सभी के ववरुद्ध कोई साक्ष्य ि
ममलिे के कारर् कोई कायावाही िहीं की गई अर्ः
सूचिाकर्ाा द्वारा अमभयोग पक्ष में अनर्श्योजक्र् की गई
है, जजसका अथा यह है कक अमभयोजि कथािक पूर्ा रूप
से ममथ्या है- प्रारम्भ में आवेदक और उसके पुत्र के
अनर्ररक्र् और लोग भी अपराधी के रूप में िाममर् ककये
गये थे, परन्र्ु अन्वेषर् के दौराि साक्ष्य के बयािों के
आधार पर आरोपपत्र केवल वर्ामाि आवेदक और उसके
पुत्र के ववरूद्ध दाखखल ककया गया और ववमशष्ट रूप से
यह आरोप लगाया गया कक आवेदक के पुत्र िे आवेदक
को उसकी लाईसेंसी बंदूक लाकर दी, जजससे आवेदक िे
अंधाधुंध फायररंग की, जजसके कारर् एक व्यजक्र् की
मृत्यु हो गई और छह अन्य घायल हो गए। सभी को
आग्िेयास्त्र की चोटें लगीं- केवल इस कारर् कक प्रथम
सूचिा ररपोटा में ज्यादा व्यजक्र् अपराधी के रूप में
िाममर् ककये गये हैं, सम्पूर्ा अमभयोजि कथािक को
झूठा िहीं करार टदया जा सकर्ा। आवेदक के ववद्वाि
अधधवक्र्ा का यह कथि कक वास्र्ववकर्ा कुछ और
अलग है, इस आधार पर ववश्वसिीय िहीं मािी जा
सकर्ी क्योंकक मृर्क के भाई द्वारा मलखायी गई प्रथम
सूचिा ररपोटा पर अन्वेषर् के बाद अंनर्म ररपोटा लगा दी
गई है-अर्ः आवेदक का घटिा स्थल पर उपजस्थर् होिा