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Madhya Pradesh High Court · body

2019 DIGILAW 202 (MP)

Ruchi Saxena v. State of M. P.

2019-03-06

ANAND PATHAK

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ORDER 1. Heard the counsel for the parties and case diary perused. 2. This is first application under section 438 of CrPC for grant of anticipatory bail. Applicant apprehends her arrest in connection in Crime No. 851/2018 registered at Police Station Civil Lines, DistrictVidisha for the offence punishable under sections 376(2) (n), 376 (2)( i), 354D, 120B of IPC, sections 3/4, 5/6 of Protection of Children from Sexual Offences Act, 2012 (POCSO), sections 67, 67A and 67B of Information Technology Act, 2000. 3. Applicant is a lady aged about 38 years and is a Corporator in Municipal Corporation, Vidisha. She is apprehending her arrest because of registration of case referred above. 4. Learned senior counsel appearing for applicant submits that case is of false implication. The police authorities are taking reliance over the statement of co-accused Dr. Piyush Saxena, who happens to be applicant's husband to fasten liability over the applicant ignoring the legal position that statement of her husband is exculpatory in nature; whereas, applicant is not involved in offence. He relied on the decision of Hon'ble apex Court in the matter of Kalpnath Rai v. State (through CBI), AIR 1998 SC 201 in this regard.. Learned counsel for the applicant relied upon the decision of Hon'ble apex Court in the matter of Pancho v. State of Haryana, AIR 2012 SC 523 to submit that confession of co-accused does not constitute substantial evidence. It is further submitted that the instant application under section 438 of CrPC has been preferred before the filing of charge-sheet and even otherwise,the application for anticipatory bail will lie even if the charge-sheet has been filed by placing reliance over judgment reported in the case of Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684 . He relied upon the decision of Hon'ble apex Court in the matter of Bhadresh Bipinbhai Sheth v. State of Gujarat and anr., (2016) 1 SCC 152 and submits that applicant is participating in investigation and no chance of her absconsion exist. 5. It is the submission of the applicant that from the contents of FIR itself, no allegations of rape under section 376 of IPC and outraging the modesty of woman under section 354 of IPC exists. Similarly, no incriminating content finds place in FIR and in statement of prosecutrix to fasten liability of provisions of POCSO Act. 5. It is the submission of the applicant that from the contents of FIR itself, no allegations of rape under section 376 of IPC and outraging the modesty of woman under section 354 of IPC exists. Similarly, no incriminating content finds place in FIR and in statement of prosecutrix to fasten liability of provisions of POCSO Act. Only allegation against the present applicant is that her SIM has been used for posting some obscene photographs of prosecutrix while inserting the SIM in a mobile instrument, which she denies categorically. 6. It is the submission of applicant that Rs. 10 lacs have been lent by the husband of applicant to the family members of prosecutrix and when asked to repay, the result is of registration of offence. He undertakes on behalf of applicant that she would cooperate in the investigation and would make herself available as and when required by the trial Court. 7. Per contra, learned counsel for the State opposed the prayer and raised the question regarding maintainability of application once the charge-sheet has been filed. It is further submitted that applicant did not cooperate in the investigation. He prayed for dismissal of the application while relying upon the decision of apex Court in the matter of D.K.Ganesh Babu v. P.T.Manokaran and Ors. [ AIR 2007 SC 1450 ], Adri Dharan Das v. State of West Bengal, [ AIR 2005 SC 1057 ], Jai Prakash Singh v. State of Bihar and Anr., [ (2012) 4 SCC 379 ] and Jarasindhu Choubey v. Amresh Chaubey alias Amresh Kumar Choubey and anr. [(2012) 12 SCC 455]. 8. Learned counsel for the complainant also vehemently opposed the bail applicant and submits that ID of the complainant has been used and to post and paste obscene photographs. Forged documents have been created by the applicant and her husband regarding money transaction to counter the allegations. Since, charge-sheet has already been filed, therefore, no case for anticipatory bail is made out. 9. Heard the counsel for the parties and perused the case diary. 10. So far as, question regarding plea of bar regarding maintainability of application under section 438 of CrPC in the event of filing of charge-sheet is concerned, same is clarified by Hon'ble apex Court in the case of Bharat Chaudhary and anr. v. State of Bihar and anr. 9. Heard the counsel for the parties and perused the case diary. 10. So far as, question regarding plea of bar regarding maintainability of application under section 438 of CrPC in the event of filing of charge-sheet is concerned, same is clarified by Hon'ble apex Court in the case of Bharat Chaudhary and anr. v. State of Bihar and anr. [2003 SCC (Cri) 1953] and Ravindra Saxena v. State of Rajasthan, [ (2010) 1 SCC 684 ]. Even otherwise, in the present case, as per the submissions advanced on behalf of applicant, anticipatory bail application has been preferred prior to filing of charge sheet and in the matter of Gurbaksh Singh Sibbia v. State of Punjab, [ AIR 1980 SC 1632 ] and Siddharam Satlingappa Mhetre v. State of Maharashtra and others, [ AIR 2011 SC 312 ], right to get anticipatory bail has been treated as very sacrosanct and aligned with Article 21 of the Constitution of India. 11. So far as facts of the case are concerned, from the perusal of impugend order and the case diary, it appears that main allegations in respect of sections 376, 354 of IPC as well as POCSO Act are against the co-accused Dr. Piyush Saxena. The only allegation against the present applicant appears to be of pasting some photographs through the mobile of applicant, which is a matter of investigation. Beside that, if as per the version of the complainant,she shared relationship with the husband of present applicant, then present applicant (wife of co-accused) herself is a sufferer and victim of whole incident rather than the perpetrator of it. The allegations against the applicant are not such in nature where the four-factors referred in section 438 of CrPC are not satisfied. Her being a lady and Corporator in Municipal Corporation, Vidisha has no chance to flee from justice and case diary does not indicate any criminal antecedents (of her). Similarly, nature of allegations against the present applicant are not heinous in nature, therefore, in cumulative consideration, applicant deserves grant of anticipatory bail but with certain stringent conditions. 12. Considering the submissions and looking to the fact situation of the case, this Court is inclined to allow the application under section 438 of CrPC. It is directed that applicant shall be released on bail in case of her arrest on furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. 12. Considering the submissions and looking to the fact situation of the case, this Court is inclined to allow the application under section 438 of CrPC. It is directed that applicant shall be released on bail in case of her arrest on furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. One Lac Only) with two solvent sureties in the like amount to the satisfaction of trial Court/Arresting Authority/Investigating Officer, as the case may be. 13. This order will remain operative subject to compliance of the following conditions by the applicant:- 1. The applicant will comply with all the terms and conditions of the bond executed by her; 2. The applicant will cooperate in the investigation/trial, as the case may be; 3. The applicant will not indulge herself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be. She would not extend any threat or coercion or allurement to prosecutrix and her family members in any manner. 4. The applicant will not commit an offence similar to the offence of which she is accused; 5. The applicant will not seek unnecessary adjournments during the trial; and 6. The applicant will surrender her passport, if possessed, before the trial Court and will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be; 7. The applicant shall appear before the investigation officer as and when required and would cooperate in the investigation; and 8. The applicant will mark her presence before the concerned trial Court on every Monday and if the Investigating Officer requires her for investigation purpose, then she will have to appear without any delay before the Investigating Officer as and when asked for. A copy of this order be sent to the Court concerned for compliance.