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Madhya Pradesh High Court · body

2014 DIGILAW 115 (MP)

Kirti Martin v. State of M. P.

2014-01-24

U.C.MAHESHWARI

body2014
JUDGMENT 1. Earlier on taking up the matter for hearing at early hours of the day Shri Lalit Pandey, advocate appeared on behalf of the applicant and prayed to keep this matter as pass over saying that the arguing counsel, Shri Sharad Verma is busy before some other Bench of this Court, on which it was kept as pass over. Pursuant to it, it is place before me after lunch session. 2. Shri Sharad Verma, advocate submits that applicant has taken away the brief from his office day before yesterday after obtaining NOC to engage other counsel and in such premises, he is not in a position to make the submission on merits of this petition. 3. Such submission of Shri Verma is taken on record. 4. Pursuant to aforesaid, Shri Verma is permitted to withdraw from this case. 5. The State’s counsel submits that he is under receipt of the case diary. 6. As the case diary is available with the learned Govt. advocate and inspite taking NOC from the engaged counsel day before yesterday, the applicant has not made any other arrangement to prosecute this petition through some other counsel. So in such premises, in view of availability of case diary. I deem fit to adjudicate this petition with the assistance of State’s counsel, whom the counsel of the objector is also assisting. 7. Before beginning the arguments on other merits of the case, with the assistance of the case diary, the State’s counsel has apprised me that in compliance of the order dated 13.12.2013, the genuineness of the alleged affidavit of the prosecutrix was verified and no such verification as per available report such affidavit was found to be taken from the prosecutrix by practicing fraud and giving her temptation that she would get money, which is paid by the State, in such types of cases to the prosecutrix of the community covered under the S.C., S.T. (Prevention of Atrocities) Act. 8. In continuation by referring the FIR and the interrogatory statements of the prosecutrix, learned State’s counsel argued that present applicant accompanied with Billu Bania (Sindhi) had taken away the prosecutrix with them at the form house of the present applicant, where shw was taken inside some room and thereafter the room was bolted by the present applicant. 8. In continuation by referring the FIR and the interrogatory statements of the prosecutrix, learned State’s counsel argued that present applicant accompanied with Billu Bania (Sindhi) had taken away the prosecutrix with them at the form house of the present applicant, where shw was taken inside some room and thereafter the room was bolted by the present applicant. At that time the aforesaid other co-accused remained outside the room and when the applicant was removing her clothes, she asked him, what is he doing with her. In spite that by giving some threat, he committed rape on her and thereafter he called the aforesaid accused Billu Bania (Sindhi) inside the room. Then he also committed the same act of rape on her. It is also stated in the FIR and interrogatory statements that she was taken away by both the accused by giving her assurance to make available the employment and in such premises, there is sufficient prima facie circumstances in the matter for committing the alleged ganga rape on the prosecutrix by the applicant. In continuation, he said that looking to the cadre of the applicant, who is working as Sub-Inspector, Police in the State, the alleged offence is very serious and if the benefit of anticipatory bail is extended to such applicant, then investigation of the case with respect of the medical examination and the interrogation of the accused may be prejudiced and adversely affected and such thing will not give healthy massage to the society at large. In addition to it, it is also argued that till the benefit of anticipatory bail has not been extended to the applicant, even then by taking advantage of his position as Sub Inspector, Police has managed the affairs of filing the false affidavit of the prosecutrix, as stated above, then after extending such benefit of anticipatory bail certainly, the applicant by taking advantage of his cadre in the Police may prejudice and effect the fair investigation of the case and in such premises, prayed for dismissal of this petition. 9. I deem fit to mention here that the State’s counsel has made the submission with the assistance of the aforesaid counsel for the objector-prosecutrix. 10. 9. I deem fit to mention here that the State’s counsel has made the submission with the assistance of the aforesaid counsel for the objector-prosecutrix. 10. Having heard the counsel, keeping in view the arguments advanced, I have carefully perused the FIR, interrogatory statements, so also other papers available in the case diary, according to which, the investigation of the case is in progress and it is undisputed fact that the applicant being Police Officer has committed the alleged act accompanied with some other person which comes under the purview of gang rape, defined under the IPC. It is also apparent from the case dairy that the applicant belongs to upper community while the prosecutrix is from the community covered under the provision of S.C., S.T. (Prevention of Atrocities) Act. So firstly, in view of the provision of section 18 aforesaid special Act barring to extend the benefit of anticipatory bail to the accused of the offence of the aforesaid special Act, the applicant is not entitled to extend such benefit. Even otherwise, in view of aforesaid factual matrix of the case, the applicant does not have case on merits for extending such benefit as such there is sufficient prima facie evidence in the case diary against the applicant for committing the alleged offence of the gang rape made punishable under section 376(2)(g) of IPC and of the criminal threat given by the applicant to the prosecutrix made punishable under section 506-Pt.II of IPC and besides it, there is also prima facie ingredients of the offence of section 3(1)(xii) and section 3(2)(v) of the S.C., S.T. (Prevention of Atrocities) Act against the applicant. In such premises, the impugned petition for extending the benefit of anticipatory bail deserves to be dismissed. 11. However, as none is present on behalf of the applicant and engaged counsel Shri Sharad Verma has already taken permission to withdraw from this case to prosecute this petition, thus, instead to dismiss the same on merits, with aforesaid observation, the petition is hereby dismissed for want of prosecution. 12. 11. However, as none is present on behalf of the applicant and engaged counsel Shri Sharad Verma has already taken permission to withdraw from this case to prosecute this petition, thus, instead to dismiss the same on merits, with aforesaid observation, the petition is hereby dismissed for want of prosecution. 12. After dictating the aforesaid, Shri P.S. Tomar, learned counsel for the objector-prosecutrix submits that he has filed an affidavit of the prosecutrix sworn on 9.1.2014 stating that the present applicant has not committed any alleged offence on her but due to wrong information supplied by the co-accused, the name of the present applicant has been stated in the FIR and prayed to consider such question on the basis of affidavit. 13. It is apparent from the case diary that the impugned FIR was lodged by the prosecutrix on 22.8.2013 and since then till 9.1.2014 no such affidavit was sworn by the prosecutrix and the fact remains that the applicant a Police Sub-Inspector remained outside and was not arrested in the present matter. So such circumstance also requires investigation, which may be carried out by the Investigating Agency. Section 154 of Cr.P.C. specifically and mandatorily provides that on receiving information of any cognizable offence by the SHO of a Police Station, then he has no option except to register the FIR and subsequently such offence being cognizable could be investigated by the Police Officer under its discretion and unless the investigation is completed on the basis of said affidavit, this petition could not be adjudicated contrary to the evidence collected by the Investigation Agency available in the case diary. Apart from this, in the matter of cognizable offence, specially the offence, which is not made compoundable under the law, at the stage of consideration of bail petition, either anticipatory or regular bail, such affidavit could not be taken into consideration. As the Court is bound to consider the FIR and the interrogatory statements of the witnesses and other available collected evidence by the Investigating Agency to decide the application of anticipatory bail. So in such premises, without expressing any opinion on merits on the aforesaid affidavit, a liberty is extended to the Investigating Agency to investigate the case on the said affidavit its discretion, if the same is permissible under the law. 14. The petition is dismissed, as indicated above.