BAIL APPLN./2682/2019 of SHIVRAJ @ SONU Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI+BAIL APPLN. 2682/2019SHIVRAJ @ SONU..... PetitionerSHIVRAJ @ SONU..... Petitioner

..... Petitioner

ThroughMs. Shivani Luthra Lohia &Ms. Asmita Narula, Advs.Ms. Asmita Narula, Advs.

versus

STATE... Respondent

ThroughMr. K K Ghai, APP for StateSI Neetu, PS Amar ColonySI Neetu, PS Amar Colony

CORAM:HON'BLE MR. JUSTICE SURESH KUMAR KAITO R R%16.12.2019

Vide this application, the petitioner seeks directions thereby to granthim regular bail in FIR No. 304/2014.

Vide order dated 13.11.2019 in Crl. MC 5726/2019, this Court hadpassed the following order:-

“Vide the present petition, the petitioner seeks direction therebyto set aside the impugned order dated 03.08.2019 passed by theLd. Additional Sessions Judge, Saket District Courts, New Delhiand to allow the present petition and to re-call the prosecutrixfor her cross-examination.

Learned counsel appearing on behalf of the petitionersubmits that in her statement recorded under Section 164Cr.P.C. the prosecutrix stated that at her residence, there was afight between her sister and her brother-in-law in which she took

her sister's side because of which her brother-in-law scolded hera lot. Sheleft her house and while leaving, Shivraj (thepetitioner herein) approached her, who lives in the neighbouringroom. She told him that there was fight at her residence. Hesaid that he will take her to Patna and will keep her very happyand, accordingly, she went with him. She further stated that shestayed in park with him for night. Next day, he took her to therailway station and then he took her to his house in Patna bytrain. His brother and mother were there in the house and hetold them he wanted to get married to her. His mother told thatfirst, you take her back and then do anything. In the village, shetold the villagers that she was Shivraj's wife (the petitionerherein). Though they did not marry there yet she used to stay likehis wife and used to wear saree. They used to sleep togetherthere, like husband and wife. Further stated that she did notwant to return to her house because she was scared of hermother and her father. Petitioner Shivraj wanted to bring herback home when the police officials came to the village. After 2-3 days of her stay at Patna, she called her sister on her phone inDelhi. She and her sister used to talk regularly on the phone.Her sister asked her to come back, but she did not go backbecause she was scared of the consequences.

In her affidavit dated 29.04.2014 prepared at Patnastated that she has married to Sonu Kumar (petitioner herein)aged about 26 years, resident of Village Shivpuri, Police StationGardanibagh, Jila Patna which was solemnized on 22.04.2014according to hindu rites and rituals and got it registered withNotary Public at Patna Court. Both of them willingly and

happily married accordingly to Hindu customs without fear,greed and without dowry dealings. Both of them were adults atthe time of marriage.

Learned APP has opposed the present petition on theground that the prosecutrix has already been cross examinedand the lacuna of the cross examination cannot be allowed,therefore, the present application is liable to be dismissed.

Ontheperusalofthecrossexaminationoftheprosecutrix, the learned counsel for the petitioner has notconfronted her on the statement recorded under Section 164Cr.P.C. and the affidavit dated 29.04.2014. The said twoevidences are the most important and without cross examiningthe prosecutrix, great prejudice would be caused to thepetitioner.

The age of the prosecutrix as per school leavingcertificate on the date of incident is 17 years, 8 months and 19days. But in the affidavit she has stated that she was major onthe date of marriage.

Accordingly,Iherebysetasidetheorderdated03.08.2019 passed by Trial Court and direct to give theopportunity to the petitioner to cross examine the prosecutrix onthe above mentioned aspects..”

It is not disputed that the petitioner is in JC since 15.08.2016 and thecross examination before the Trial Court is fixed for 18.12.2019.

The Trial Court is directed to release the petitioner on bail on19.12.2019 on his furnishing bond in the sum of ₹25,000/- with one surety

of the like amount to the satisfaction of the Trial Court.

The application is allowed and disposed of.Order dasti under signatures of the Court Master.

Copy of this order be transmitted to the Jail Superintendent and the

Trial Court concerned for compliance.

DECEMBER 16, 2019sm

SURESH KUMAR KAIT, J