Raj Kumar alias Raju vs State of Punjab

S.C. Malte, J.

The petitioner is facing trial under Sections 363, 366, 376 I.P.C. The papers before me indicate that the petitioner and the prosecutrix had been living together for about six months, and the prosecutrix gave birth to a child, conceived from the petitioner. Counsel for the petitioner says that the petitioner and the prosecutrix were married. The petitioner was granted bail initially. Later on, an application for cancellation of bail was moved on the ground that while granting bail to the petitioner, the Sessions Court wrongly took into consideration that the prosecutrix was 18 years old and, therefore, may be, she was a consenting party. Later on, her birth certificate was obtained and it showed that her date of birth was 1.1.1982. The Civil Surgeon certified that she was born on 26.2.1981. Learned Sessions Judge cancelled the bail on the sole reasoning that the age of the prosocutrix had not been correctly placed before him so as to enable him to form a prima facie opinion as to whether consent, if any, by the prosecutrix, is a material fact. He, therefore, cancelled the bail.

Counsel for the petitioner brought my attention to the position that while initially granting bail, the report by the doctor based on radiology examination was before that Court and doctors opined that the age of the prosecutrix was 18 to 19 years. Thus, according to him, on his part there was no suppression of facts.

It may be noted that the medical certificate, which was made available, was placed before the lower Court while granting bail initially. If the prosecution wanted to base its case on the School Certificate, and Civil Surgreon''s certificate, it could have been placed before the Court to show what was the birth date of the prosecutrix. Therefore if anybody is to be blamed, it is the prosecution for not having placed before the Court sufficient material which should have been collected during the course of investigation. It may be further noted that there is no allegation that while on bail, the petitioner misused liberty.

In the set of circumstances, petition is allowed. The order by which the bail was cancelled by the Sessions Judge on 21.2.1998 is hereby set aside. The petitioner is directed to be enlarged on bail in FIR. No. 47 dated 2.6.1997, under Sections 363, 366, 376 IPC, Police Station Civil Lines, Batala, on his executing the bail bond and surety bond in the sum of Rs. 20,000/ to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Gurdaspur; and on further condition that, during the pendency of the case in the trial Court, he shall not enter into the revenue limits of village Batala where the proseutrix resides; and shall stay at Katra Jaimal Singh, District Amritsar, He shall not contact the prosecution witnesses or tamper with them.