Madhya Pradesh High Court
Dr. Amit Samadhiya vs The State Of Madhya Pradesh Thr on 19 January, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC.912/2018.
Dr.Amit Samadhiya Vs. State of M.P.
Gwalior, Dated: 19/1/2018
Shri R.K.Sharma, learned Senior Advocate, with
Shri Anil Mishra and Shri Tapendra Sharma, learned
counsel, for the applicant.
Shri Rajesh Pathak, learned Public Prosecutor, for
the respondent/State.
Shri Jitendra Sharma, learned counsel, for the prosecutrix/objector.
Shri Ashirwad Dwivedi, learned previous counsel, for the prosecutrix.
On due consideration, I.A.No.397 of 2018 is allowed and Shri Ashirwad Dwivedi is permitted to withdraw his Vakalatnama filed on behalf of the prosecutrix.
On due consideration the documents filed on behalf of the applicant and the prosecutrix vide document Nos.694 of 2018 and 697 of 2018 respectively are taken on record.
Heard arguments.
Perused case diary and material on record.
This is the first bail application filed by the applicant under Section 438 of the Cr.P.C for grant of anticipatory bail as he apprehends his arrest in Crime No.125 of 2017 registered at Mahila Police Station Gwalior against him and co-accused Dr. Sandeep Singh Tomar for the offences punishable under Sections 376, 354, 506, 417 and 34 IPC.
2On 7.12.2017, the prosecutrix lodged a typed FIR with Mahila Police Station Gwalior. The sum and substance of the FIR is that she came into contact with applicant Dr.Amit Samadhiya some time in August 2012. A day in November 2012, he took her to his flat situated in Gwalior, where he had forcible sexual intercourse with her. At that time, she threatened him that she would lodge a police report against him for forcible sexual intercourse against her wishes. Thereupon, he assured her that he would marry her after completion of his medical education. Thereafter, he had sexual intercourse with her several times under the pretext of marrying her. In the year 2014, the applicant took her in a hotel at Gwalior, where he had sexual intercourse with her on the promise of marriage. Later, she asked him to talk about their marriage with his parents. He denied talking about her marriage with his parents. On 16.11.2017, she went to Delhi for her personal work, where he called her to his flat. There, he had sexual intercourse with her several times from 16.11.2017 to 20.11.2017 on the promise of marriage. On 1.12.2017, the applicant invited her to Delhi for the talk of marriage. He and the co-accused took her to a hotel, where they had offered her soft drink laced with intoxication. Under the influence of intoxication, she doubts that they got some letters written in favour of the applicant. The co-accused also touched her body inappropriately when she was traveling with the applicant and him in a car in Delhi.
3On 2.12.2017 at about 11 p.m, she regained her full sense and found her in a hotel where they were not present.
Learned counsel for the applicant submits that the prosecutrix is a major since November 2012, well educated and English knowing girl and she does modelling. Therefore, she knows very well the consequences of having premarital sexual relations with the applicant. After referring to the FIR, he submits that the prosecutrix has stated in the FIR that in the year 2014, the applicant had refused to marry her in clear words. At that time, she could have lodged the FIR against him of rape on the promise of marriage. But she had not done so. Referring to the FIR, he further submits that there were no relations whatsoever between the applicant and the prosecutrix between the years 2012 to 2016 i.e. for about three years. He submits that as per the FIR, the sexual relations between the prosecutrix and the applicant were re-established first time on 16.11.2017. He submits that since the applicant had flatly refused to marry the prosecutrix in the year 2014, the sexual relations between the period from 16.11.2017 to 20.11.2017 amount to consensual sex between the applicant and the prosecutrix. He submits that the applicant is a doctor by profession and that he is at present in the service of Government of NCT of Delhi. He submits that the applicant has no criminal antecedents. He submits that a Coordinate Bench of 4 this High Court vide order dated 18.5.2017 passed in M.Cr.C.No.11363 of 2016 had quashed the FIR of rape on almost same facts holding that it is a case of consensual sex. He also pressed into service in support of his contention the order dated 9.1.2017 rendered by the Bombay High Court in an Anticipatory Bail Application No.2221 of 2016 wherein Lady Lordship has observed that when a woman is major and educated, she is fully aware of the consequences of having sexual intercourse with the man before marriage. In that situation, the sexual relations between them are of consensual in nature. He has also placed reliance of some other unreported orders rendered by the Coordinate Benches of this High Court while granting anticipatory bail to the applicants against whom charges were that they had sexual intercourse giving inducements to the victims. He assures this court on behalf of the applicant that he would fully cooperate with the investigating officer in the investigation of the case and as and when the presence of the applicant is required by the investigating officer in the course of investigation, he would come from Delhi to Gwalior to assist him. Upon these submissions, he prays for grant of anticipatory bail to the applicant.
Learned Public Prosecutor and learned counsel for the prosecutrix have vehemently opposed the prayer for grant of anticipatory bail to the applicant. They submit that as per the FIR, on 16.11.2017 to 5 20.11.2017, the applicant had sexual intercourse with her several times on the promise of marriage and, therefore, the offence of rape against the applicant is prima facie made out under Section 376 (2) (n) IPC.
I have given full consideration to the facts and circumstances of the case and the submissions raised on behalf of the parties by their counsel and perused all the rulings cited before me. From the FIR itself, it is clear that the applicant had made his intention clear in the year 2014 to the prosecutrix that he would not marry her. Therefore, the prosecutrix ought to have lodged the FIR against the applicant in the year 2014 itself to the effect that the applicant had sexually exploited her on the promise of marriage. As per the FIR, the prosecutrix and the applicant were not on speaking terms much less sexual relations for three years between the period 2014 to November 2017. The prosecutrix has alleged in the FIR that the applicant had sexual intercourse with her on the promise of marriage between the period 16.11.2017 to 20.11.2017. Since the applicant had refused the prosecutrix to marry her in the year 2014, therefore, the sexual relations between the applicant and the prosecutrix for the said period cannot be said that the applicant had sex with the prosecutrix on the promise of marriage. On the other hand, the sexual relations in the said period between the applicant and the prosecutrix are in the nature of consensual sex. Therefore, there is no prima facie evidence at present 6 to make out a case under Section 376 IPC. For the aforesaid reasons, I deem it proper to grant the anticipatory bail to the applicant with certain stringent conditions.
The applicant is directed to appear before the Investigating Officer of the case on or before 31.1.2018 for interrogations and submissions of documents of his permanent residential address and contact numbers. The Investigating Officer is directed that if he arrests the applicant Dr.Amit Samadhiya in the case, then he will release him on bail upon his furnishing a personal bond in the sum of Rs.40,000/- (Forty Thousand) with one solvent surety of Gwalior district of the same amount to his satisfaction. Thereafter, he shall appear before the investigating officer as and when his presence is required for interrogations. The applicant shall abide by all the conditions enumerated in Section 438 (2) Cr.P.C. In addition to that the applicant shall not leave India without written permission of this court.
It is made clear that if the applicant fails to appear before the Investigating Officer within the stipulated time period, then this bail order shall stand automatically cancelled.
The respondent/State and the prosecutrix shall have the liberty to file an application under Section 439 (2) CrPC for cancellation of the anticipatory bail if the applicant misconduct himself or misuse the liberty of anticipatory bail.
7It is made clear that "no one" shall be influenced by any observations made in this order directly or indirectly in the further proceedings of the case.
Accordingly, this application stands disposed of. Certified copy as per rules.
(Rajendra Mahajan)
RKS Judge
R. K. SHARMA
2018.01.20 11:55:34 +05'30'