Madhya Pradesh High Court
Inder Kmar Goyal vs The State Of Madhya Pradesh on 5 March, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 5 th OF MARCH, 2024
CRIMINAL APPEAL No. 2738 of 2024
BETWEEN:-
INDER KUMAR GOYAL S/O SHRI SEETARAM GOYAL,
AGED 31 YEARS, OCCUPATION: SHOPKEEPER R/O
SHRIGANESH HOUJARI TEKARI DISTRICT SHIVPURI
(MADHYA PRADESH)
.....APPELLANT
(SHRI ANIL KUMAR MISHRA- ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH POLICE
STATION KOTWALI DISTRICT SHIVPURI
(MADHYA PRADESH)
2. PROSECUTRIX/VICTIM THROUGH POLICE
STATION KOTWALI DISTRICT SHIVPURI
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI R.K. AWASTHI- PUBLIC PROSECUTOR FOR RESPONDENT/STATE)
(SHRI SATENDRA KUMAR SHRIVASTAVA- ADVOCATE FOR THE
COMPLAINANT)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
The appellant has filed this first criminal appeal under Section 14-A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 being aggrieved by order dated 21.02.2024 passed by Special Judge (SC & ST Act), Shivpuri (M.P.) rejecting the application for anticipatory bail filed under Section 438 of Cr.P.C.
Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM 2Learned Counsel for the State submits that the complainant has been informed about filing of this appeal in compliance with mandate of Section 15-A of the Act of 1989.
The appellant is apprehending his arrest relating to Crime No. 113/2024 registered by Police Station Kotwali, District Shivpuri (M.P.) for offence punishable under Sections 376 and 506 of IPC and Sections 3(1)(w)(ii), 3(2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter would be referred as to the "Act" of 1989').
As per the prosecution, prosecutrix aged around 21 years submitted a typed complaint to SHO of Police Station Kotwali, District Shivpuri on 14/02/2024 inter alia stating that he is working at Ganesh Hozari since last five years. Two-three years back, shop owner Inder Kumar Goyal proposed to marry her. She also liked Inder Kumar. Therefore, they had physical relations. After some time, she asked Inder Kumar to marry her, but Inder Kumar on one pretext or other avoided to marry her. So, she refused to have physical relations with Inder Kumar. On 15.12.2023, she was working in the shop. Inder Kumar asked her for physical relations, but she refused to have physical relations without marriage. Inder Kumar committed rape on her inside the shop. Inder Kumar threatened that he will not marry her and if she does not comply with his direction, he will kill her. She got frightened, therefore, did not report immediately. On 14.02.2024, she narrated the incident to her mother and came to report. On such allegations, Police Station Kotwali, District Shivpuri registered FIR at Crime No.113/2024 for offence punishable under Sections 376 and 506 of IPC and Sections 3(1)(w)(ii), 3(2)(v) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Signature Not Verified 1989. Thereafter, prosecutrix was forwarded for medico legal examination. Her Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM 3 statements were recorded under Sections 161 and 164 of CrPC. Statement of mother of the prosecutrix was also recorded. As per the birth certificate, date of birth of prosecutrix is 30.08.2001. Investigation is underway.
Learned counsel for the appellant in addition to the grounds mentioned in the appeal, submits that the appellant has falsely been implicated in this matter. Learned trial Court has rejected the anticipatory bail application under Section 438 of CrPC in view of interdict contained in Section 18 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 without considering the material on record. Learned counsel referring to the judgments in case of Prathvi Raj Chauhan Vs. Union of India and Others (2020) 4 SCC 727 (Para 11) and Union of India Vs. State of Maharashtra (2020) 4 SCC 761 (Para 57) submits that the offence punishable under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 needs to be prima facie established on the material available on case diary to attract the interdict under Section 18 of the Act. Learned counsel further submits that it is a case of consensual relationship between two consenting adults. The prosecutrix was well aware of her conduct and entered into physical relationship at her own. Learned counsel contends that no intention to defraud can be gathered from inception against the appellant. Rather, it is a case of failed relationship whereafter allegations of rape are made.
Learned counsel referring to judgment of the Apex Court in cases of Deepak Gulati Vs. State of Haryana AIR (2013) SC 2071, Tilak Raj Vs. State of Himachal Pradesh AIR (2016) SC 406 and Uday Vs. State of Karnataka (2003) 4 SCC 46 submits that prosecutrix continued to have physical relationship with the appellant for sufficiently long period of time, Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM 4 knowing well that appellant is avoiding to marry her. She continued to work in the shop of appellant and had never complaint against the appellant. There is no plausible reason for delay in reporting the incident of 15.12.2023, when appellant allegedly specifically refused to marry her and committed rape. It cannot be inferred that consent of prosecutrix was obtained by false promise of marriage. Learned counsel contends that no offence punishable under Section 376 of IPC is made out against the appellant. Further, no offence punishable under Sections 3(1)(w)(ii), 3(2)(v) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out against the appellant. Therefore, the interdict contained in Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 would not apply to the prosecution in hand.
Learned counsel further submits that appellant is aged around 30 years. He is shopkeeper by profession. He has family to look after. There is no likelihood of his absconsion leaving his family, home and business. There is no likelihood of tampering with the evidence by the appellant. He is ready to cooperate in the investigation. Jail incarceration on false allegations would bring social disrepute and hardship to the appellant. No custodial interrogation is required in the matter. Learned Special Judge (SC & ST Act), Shivpuri (M.P.) committed an error in rejecting the application under Section 438 of the Cr.P.C vide order dated 21.02.2024. Therefore, the impugned order may be set-aside and the appellant may be released on bail.
Per contra, learned counsel for the State ably assisted by learned counsel for the complainant opposes the anticipatory bail application and submits that complainant got frightened, therefore, she could not immediately lodge FIR. T he prima facie material available on case diary makes out alleged offence.
Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM 5Therefore, appellant may not be extended benefit of anticipatory bail.
Heard learned counsel for the parties and perused the case diary. Considering rival contention and material available on case diary, this Court is of the considered opinion that the interdict contained in Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 would not apply.
Considering the arguments advanced by both the parties and overall circumstances of the case, this Court is inclined to allow this appeal. The order dated 21/02/2024 is set-aside and it is directed that in the event of arrest of appellant Inder Kumar Goyal, he shall be released on bail in relation to the Crime No. 113/2024 registered by Police Station Kotwali, District Shivpuri (M.P.) for offence punishable under Sections 376 and 506 of IPC and Sections 3(1)(w)(ii), 3(2)(v) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, upon furnishing a personal bond in the sum of Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety of the same amount to the satisfaction of the officer making arrest/trial Court, for compliance with the following conditions: ( F o r the sake of convenience of understanding by accused and surety, the conditions of bail are also reproduced in Hindi as under):-
( 1 ) Applicant shall make himself available for investigation as may be directed by the officer, in-charge of investigation;
(1) vUos"k.kdrkZ iqfyl vf/kdkjh ds funsZ'kkuqlkj vUos"k.k gsrq vkosnd miyC/k jgsxkA (2) Applicant shall not commit or get involved in any offence of similar nature;
(2) vkosnd leku izd`fr dk dksbZ vijk/k ugha djsxk ;k mlesa lfEefyr ugha gksxkA (3) Applicant shall not directly or indirectly make any inducement, threat Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM 6 or promise to any person acquainted with the facts of the case so as to dissuade them/him/her from disclosing such facts to the Court or to the police officer;
(3) vkosnd izdjz.k ds rF;ksa ls ifjfpr fdlh O;fDr dks izR;{k ;k vizR;{k :i ls izyksHku] /kedh ;k opu ugha nsxk] ftlls ,slk O;fDr ,sls rF;ksa dks U;k;ky; ;k iqfyl vf/kdkjh dks izdV djus ls fuokfjr gksA (4) Applicant shall not directly or indirectly attempt to temper with the evidence or allure, pressurize or threaten the witness;
(4) vkosnd izR;{k ;k vizR;{k :i ls lk{; ds lkFk NsMNkM djus dk ;k lk{kh ;k lkf{k;ksa dks cgykus&Qqlykus] ncko Mkyus ;k /kedkus dk iz;kl ugha djsxkA (5) Upon submission of final report under Section 173 of Cr.P.C, the applicant shall furnish fresh personal bond and solvent surety of aforementioned amount to the satisfaction of the Trial Court, if so directed and thereafter, shall remain present on every date of hearing as may be directed by the concerned Court;
(5) /kkjk 173 na-iz-la- ds rgr vafre izfrosnu izLrqr gksus ij] ;fn ,slk funsZf'kr fd;k tkrk gSZ] vkosnd fopkj.k U;k;ky; dh larqf"Vizn iwoZ mYysf[kr jkf'k dk uohu oS;fDrd ca/ki= ,oa izfrHkw ca/ki= izLrqr djsxk vkSj mlds mijkar lacaf/kr U;k;ky; ds funsZ'kkuqlkj lquokbZ dh izR;sd frfFk ij mifLFkr jgsxkA (6) During trial, the applicant shall ensure due compliance of provisions of Section 309 of Cr.P.C. regarding examination of witnesses in attendance;
(6) fopkj.k ds nkSjku] mifLFkr xokgksa ls ijh{k.k ds laca/k esa vkosnd /kkjk 309 na-iz-la- ds izko/kkuksa dk mfpr vuqikyu lqfuf'pr djsxkA This order shall be effective till the end of trial. However, in case of breach of any of the precondition of bail, the Trial Court may consider on merit Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM 7 cancellation of bail without any impediment of this order.
The trial Court shall get these conditions reproduced on the personal bond by the accused and on surety bond by the surety concerned. If any of them is unable to write, the scribe shall certify that he had explained the conditions to the concerned accused or the surety.
C.C. as per rules.
(SANJEEV S KALGAONKAR) JUDGE Avi Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 06/03/2024 2:03:29 PM