Prashant Kumar Agarwal, J. - (1.) THE accused -petitioner has moved this application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 31/2014, registered at Police Station Mahila Thana, District Sikar for the offences under Sections 363 and 366 IPC. It is to be noted that after investigation charge -sheet has already been filed against the petitioner for the offences under Sections 363, 366A, and 376 IPC and Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as "the Act") and charges have also been framed against him for the offences under Sections 363, 366 and 376(2)(n) IPC and Section 5(1) read with Section 6 of the Act. It is further to be noted that statement of some of the material prosecution witnesses including that of the prosecutrix has also been recorded by the trial Court.
(2.) IN support of the application, learned counsel for the petitioner has raised the following grounds: - (1) For the incident of 5.5.2014, FIR was lodged on 8.5.2014 with an unexplained delay of three days which strongly shows that the prosecutrix went away with the petitioner with her own free will with the knowledge of her parents and other family members. (2) Soon after the recovery of the prosecutrix her statement under Section 161 Cr.P.C. was recorded on 17.5.2014 but in this statement it was specifically stated by her that rape was not committed upon her by the petitioner. Thus, according to her first version of the incident, offence under Section 376 IPC is not made out. (3) Her statement under Section 164 Cr.P.C. was recorded on 22.5.2014 and for the first time allegation of rape was made against the petitioner. At that time she was in the custody and control of her parents and other family members and, therefore, there is every possibility that this statement was made by her under the pressure and influence of her parents and other family members. (4) The prosecutrix was medically examined on her own request at a Government Hospital situated at Jaipur on 16.1.2014 to determine her age and as per certificate issued by that Hospital her age was found to be 18 to 19 years. (5) Even if for the sake of argument it is admitted that the petitioner had sexually intercourse with the petitioner, from the material available on record, it is clear that it was with her consent and she being of the age of more than 18 years, offence under Section 376 IPC cannot be said to be made out. (6) From the material made available on record it is further clear that the prosecutrix got married with the petitioner on 15.5.2014 at Arya Samaj Vedic Vivah Mandal at Ghaziabad (UP) according to Hindu Vedic Rites and Customs and a certificate to that effect was also issued and the marriage between them was registered on the same day i.e. 15.5.2014 by the competent authority in accordance with the provisions of the Uttar Pradesh Hindu Marriage Registration Rules, 1973 and thus the petitioner and the prosecutrix are validly married husband and wife and physical relationship between them by any stretch of imagination can come within the sphere of "Rape" as defined under Section 375 of IPC. (7) Even if for the sake of arguments, it is admitted that at the time of the aforesaid marriage, the prosecutrix was minor being under the age of 18 years as according to the school certificate her date of birth is 11.7.1996, even then the marriage between the petitioner and prosecutrix at the most can be said to be voidable at the option of the prosecutrix and that too only when a decree of nullity is passed by a competent Court on a petition filed for that purpose. It is not the case of the prosecution that such a decree has been passed on a petition filed by the prosecutrix. (8) The offence committed by the petitioner at the most is an offence under Section 9 of the Prohibition of Child Marriage Act, 2006 punishable with rigorous imprisonment which may extend to two years or with fine only. The petitioner is in custody since 25.7.2014. (9) The guidelines issued by the Division Bench of this High Court in the case of Budha Ram Meena Vs. State of Rajasthan & ors. in D.B. Habeas Corpus Petition No. 151/2011 regarding formalities to be followed before a marriage is performed at the most are to be followed by Arya Samaj Temples situated in the State of Rajasthan only and not outside it and, therefore, the marriage between the petitioner and the prosecutrix cannot be said to be invalid on the ground that the guidelines were not followed. (10) As per certificate dated 6.8.2012, the petitioner is a handicapped person having 40% permanent disability. On the other hand, learned Public Prosecutor controverting the pleas raised on behalf of the petitioner submitted as follows: (1) As per school certificate, the date of birth of the prosecutrix is 11.7.1996 and, therefore, at the time of the alleged incident she was below the age of 18 years and her consent, even if it was there, is of no legal value. (2) Although, the prosecutrix in her statement recorded under Section 161 Cr.P.C. has not levelled the allegation of rape against the petitioner, but she in her statement recorded under Section 164 Cr.P.C. as well as statement recorded during trial she has specifically levelled the allegation of rape also. In her cross -examination she has denied that in her statement recorded under Section 161 Cr.P.C. she did not level allegation of rape. She has also denied that allegations of rape in her statement recorded under Section 164 Cr.P.C. were levelled by her under the pressure of her family members. It is for the trial Court to decide whether the explanation given by the prosecutrix is to be believed or not. (3) In view of the date of birth as mentioned in the school certificate, the opinion given in the medical certificate dated 16.5.2014 carries no value, at least, at this stage of the proceedings. (4) Certificate of marriage dated 15.5.2014 has been obtained from the Arya Samaj Vedic Vivah Mandal stating the date of birth of the prosecutrix to be 11.4.1996 i.e. at the time of marriage, the prosecutrix was more than eighteen years of age. Thus, the certificate has been obtained by concealing a material fact. (5) As per statement of the prosecutrix, rape was committed upon her by the petitioner at Jaipur and Mumbai soon after she was abducted on 5.5.2014 and well before marriage according to Arya Samaj Customs was performed on 15.5.2014 and, therefore, it can not be said that at the time of the aforesaid offence the prosecutrix was legally married wife of the petitioner. (6) The prosecutrix even her statement recorded under Section 161 Cr.P.C. has levelled such allegations against the petitioner which prima facie constitute the offence under Section 366 IPC. (7) As the statement of the prosecutrix has been recorded during trial, it is for the trial Court to decide to what extent her statement can be relied upon at the conclusion of the trial after considering the entire evidence made available on record. (8) In her Court statement, the prosecutrix has denied that marriage with petitioner at Arya Samaj Temple at Ghaziabad was solemnized with her consent. She has also denied that medical certificate dated 16.1.2014 about her age was issued on her application. (9) In her cross -examination the prosecutrix has specifically stated that under threat, the petitioner took her to Ajmer on 20.1.2014 and their marriage was performed in accordance with the customs of Arya Samaj without her consent. (10) In her cross -examination she has denied that the petitioner had physical relationship with her only after their marriage at Ghaziabad. (11) Prima facie it appears that the marriage between the petitioner and prosecutrix was performed without following the procedure prescribed under the rules titled as "Arya Samajon Mai Vivah Ke Niyam, 1993" framed by the Sarvdeshik Arya Pratinidhi Sabha, New Delhi which is the apex body as well as concealing the real date of birth of the prosecutrix and, therefore, the marriage between the two cannot be said to be valid marriage in the eye of law. (12) The marriage between the petitioner and the prosecutrix is null and void as per Section 12 of the Prohibition of Child Marriage Act, 2006 and not voidable only as contended on behalf of the petitioner.
(3.) ON consideration of submissions made on behalf of the respective parties and the material made available for my perusal and more particularly looking to the explanation furnished by the prosecutrix in her cross -examination and also the gravity of the offence, but without expressing any final opinion on the merit and demerit of the case, I do not find it a fit case in which benefit of bail is to be granted to the petitioner under Section 439 Cr.P.C.;