Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 172 (MP)

Shiv Prasad Choudhary v. State of M. P.

2014-02-10

U.C.MAHESHWARI

body2014
ORDER 1. On behalf of the applicant this petition is preferred under section 438 of Cr.P.C. for grant of anticipatory bail to the applicant, as he is under apprehension of his arrest in connection of Crime No.478/13, registered at Police Station Umaria, for the offence punishable under sections 376 and 506 of I.P.C. and under section 5/6 of Protection of Children from Sexual Offences Act, 2012. 2. Applicant’s counsel after taking me through the rejection order of the Sessions Court along with the papers placed on the record by referring the first information report of Crime No. 458/13, registered at Police Station Kotwali, Umaria at the instance of Sandeep Kumar Gautam at 10.30 AM on 18.10.2013 against the applicant for the offence under section 456 of I.P.C. and some interrogatory statement of the prosecutrix recorded under such crime argued that, according to this FIR and the interrogatory statement, only the offence of section 456 of IPC was committed by the applicant for which he was taken into custody and thereafter, was also released on bail but subsequently, by registration of the separate impugned Crime No.478/13, at the instance of the prosecutrix on dated 24.10.2013, he has been falsely implicated under the offence of sections 376 and 506 of I.P.C. In such background, he further said that when the applicant as alleged entered in the house for which the offence of section 456 of I.P.C. was already registered and he was taken into custody, then it was not possible for him in the same night to commit the offence of section 376 of I.P.C. He further said that, the applicant is belonging to a very poor family and if the benefit of anticipatory bail is not extended to him, then he has to suffer in a lot. He further said that, in any case if the story put forth by the prosecution of both the FIRs, is taken into consideration then in the available circumstances, specifically in the night of mobile calls, it appears to be a case of consent as the applicant was called by the prosecutrix, who is aged 23 years, whose age was wrongly shown to 17 years at later stage. In support of such contention he also referred the interrogatory statement of the father of the prosecutrix in which he stated the age of prosecutrix 23 years and, prayed to extend the benefit of anticipatory bail to the applicant with the prayer to make the order of ad-interim anticipatory bail as absolute by allowing this petition. 3. On the other hand, by opposing the aforesaid prayer with the assistance of the case diary, learned P.L. said that immediately after the incident the first information report was lodged by the employer of the prosecutrix, who did not aware about the incident of rape and on that basis, the offence of section 456 of I.P.C. at the aforesaid police station was registered on the next morning 18.10.2013, as Crime No.458/13, and according to such FIR, such incident was happed at 2 O’Clock in the night while as per FIR of the prosecutrix herself lodged at the same Police Station as Crime No. 478/13, the alleged offence of rape under criminal intimidation was committed by the applicant on her at 12 O’ Clock in the night of 17.10.2013 and according to the averments of the FIR, due to criminal intimidation of the applicant, she reported the matter to the police only on 24.10.2013. The interrogatory statement of the prosecutrix and her parents were recorded. On recording the statement of the prosecutrix under sections 161 and 164 of Cr.P.C., again she has stated the same thing as stated by the applicant in her FIR. He further said that as per collected evidence by the investigating agency, the prosecutrix was below 17 years on the date of the alleged incident although he has not disputed the aforesaid version of the applicant’s counsel in which on recording the interrogatory statement of the father of the prosecutrix, he has shown the age of prosecutrix to be 23 years. In continuation he said that in any case, it is not a case of consent and in view of collected evidence, it could not be said that the alleged rape/intercourse was committed by the applicant with the prosecutrix with her consent and such question is yet to be considered by the Court on filing the charge-sheet after investigation before the competent Court but at present, to carryout the fair investigation, the presence of the applicant for custodial interrogation as well as for his medical examination is necessary and, therefore, the applicant does not deserve for extending the benefit of anticipatory bail. He also said that, initial ad-interim anticipatory bail order was passed when the case diary and the entire situation was not before the Court and now, the available evidence collected by the investigating agency could not be ignored to make the aforesaid earlier order as absolute in this petition. 4. Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the rejection order of the Sessions Court as well as the papers placed on record along with the interrogatory statement of the prosecutrix recorded under section 161 and also of section 164 of Cr.P.C., In the available circumstances, I have found prima facie evidence against the applicant for committing the alleged offence. So in such premises, I have not found any material circumstance for extending the benefit of anticipatory bail to the applicant. Consequently, this petition being devoid of any merit is hereby dismissed. It is made clear that the question of consent of the prosecutrix in the available circumstances could not be taken into consideration for extending the benefit of anticipatory bail to the applicant unless the investigation is over and the investigating agency comes to some conclusion whether it was a case of consent or not. At present, I am not expressing any opinion on such question.