Madhya Pradesh High Court
Abhishek Jain vs The State Of Madhya Pradesh on 21 August, 2017
MCRC-13624-2017
(ABHISHEK JAIN Vs THE STATE OF MADHYA PRADESH)
21-08-2017
Mr. Manish Datt, learned senior counsel with Ms. Kishwar Khan, learned counsel for the applicant.
Mr. D.K. Paroha, learned Govt. Adv. for the State.
Mr. Abhinav Dubey, learned counsel for the Objector.
This application has been filed U/s.438 Cr.P.C. on behalf of applicant Abhishek Jain in connection with Crime No.374/17 of P.S. Bina, Distt. Sagar for offences under Section 498-A, 506, 377/34 of I.P.C. and U/s.3/4 of Dowry Prohibition Act.
The applicant herein is the husband of the complainant. His arrest is being sought in the aforementioned case. Earlier vide order dated 26.7.2017 passed in M.Cr.C. No.12249/2017 the co-accused Smt. Divya Jain, who is sister of the applicant herein was granted the benefit of anticipatory bail. In this case, on 14.2.2016 the applicant and the complainant had got married. On 5.3.2016, the complainant went to the matrimonial home at Bina, Distt.Sagar. On 14.3.2016 the complainant alleges that there was an act constituting an offence U/s.377 I.P.C. committed by the applicant on the complainant. Thereafter, between 16.3.2016 and 22.3.2016, the applicant and the complainant went on a pilgrimage to Shikharji in Bihar. They returned on 30.3.2016 to their matrimonial home. On 26.1.2017 because of estrangement between the parties, the complainant left the matrimonial home and went to live with her parents. On 9.6.2017, five months after she left for her parental home, the applicant herein sends a lawyer's notice U/s.9 of the Hindu Marriage Act, asking the complainant to join his society. Thereafter, on 22.6.2017 the aforesaid FIR is registered against the applicant and his family members.
There has been an MLC dated 22.6.2017 in which there is a Wart like projection in the rectal area, which the doctor opines could be because of unnatural coitus. Learned counsel for the Objector and the State have submitted that the MLC does indicate prima-facie that an offence U/s.377 of I.P.C. could have taken place with the complainant.
Learned counsel for the applicant on the other hand submits that the said incident is stated to have taken place only once on 14.3.2016 and for one year the complainant was not aggrieved by the said act at all. He has further submitted that if it was something that the complainant felt was downright abhorrent, she should have registered the FIR against the applicant immediately thereafter. He has further submitted that where there is no strong objection to the said act at the time when it was committed, the same may give the other party the impression of an implied consent. Therefore, on account of the delay in registration of the FIR after she left the matrimonial home on 26.1.2017 and the FIR succeeding the notice U/s.9 of the Hindu Marriage Act sent to the complainant and taking due cognizance of the directions issued by the Supreme Court in the judgment of Rajesh Sharma Vs. State of U.P., passed in Criminal Appeal No.1265/2017, the application is allowed and it is directed that in the event of arrest, the applicant herein shall be enlarged on bail forthwith by the Arresting Officer upon his furnishing a personal bond in the sum of Rs.50,000/- with a solvent surety in the like amount to the satisfaction of the Arresting Officer.
The applicant shall abide by the conditions enumerated under Section 438(2) of Cr.P.C. He shall however join the investigation as and when directed to do so by the Police.
C.C. as per rules.
(ATUL SREEDHARAN) JUDGE a