Madhya Pradesh High Court
Chhotalli Alias Shriniwas vs The State Of Madhya Pradesh Thr on 29 January, 2018
1
THE HIGH COURT OF MADHYA PRADESH
Mcrc.1360/18
Chhotalli @ Shriniwas Vs. State of M.P.
Gwalior Dt. 29/1/2018
Shri R.K.Sharma, Sr. Advocate with Shri V.K.Agrawal, Advocate
for the petitioner.
Shri Shiraz Quraishi, Public Prosecutor for the State.
Shri Madhukar Kulshrestha, Advocate for the victim.
Learned counsel for the rival parties are heard.
Case Diary is perused.
This is first application filed by the petitioner u/S. 439 Cr.P.C.
for grant of bail.
The petitioner has been arrested on 9/9/2017 by Police Station
Matabasaiya District Morena (M.P.) in connection with Crime
No.52/2017, registered in relation to the offences punishable u/Ss.
363, 366, 376 IPC and Sec. 3/4 of the Dowry Prohibition Act.
Learned Public Prosecutor for the State opposed the
application and prayed for its rejection by contending that on the
basis of the allegations and the material available on record, no case
for grant of bail is made out.
Offence of kidnapping and rape is alleged against the
petitioner and other co-accused in regard to the prosecutrix aged 15
years.
Learned counsel for the petitioner submits that the petitioner
has neither been named in the FIR lodged by father of the
prosecutrix nor in the statement u/S. 161 Cr.P.C. of the prosecutrix.
It is submitted that by making improvements the prosecutrix has
implicated the petitioner under her 164 Cr.P.C. statement recorded
before the learned Magistrate.
On the other hand, learned counsel for the State and victim
submitted that earlier bail application of co-accused Bobby @ Surabh
2
has since been rejected by order dated 21/12/2017 passed in
Mcrc.No.25584/17 and the said co-accused is similarly situated as the
petitioner.
Per contra, learned counsel for the petitioner submits that the
concept of negative parity is not recognized in bail jurisdiction.
The case-diary reflects that the FIR was a report lodged by the
father regarding the prosecutrix being missing without implicating
any one. When the prosecutrix was traced out her statement u/S.
161 Cr.P.C. was recorded where she alleged offence of rape and
kidnapping against the other co-accused but did not name the
petitioner.
However, thereafter another statement u/S. 164 Cr.P.C. was
recorded before the learned Magistrate where she has implicated the
petitioner of committing kidnapping and as well as rape alongwith
other co-accused.
The factum of the prosecutrix not having named the petitioner
earlier in her 161 Cr.P.C. statement has not been properly explained
by the prosecutrix.
However, the fact of the prosecutrix being only 15 years of age
is not disputed and looking to the tender age of the prosecutrix it
would be appropriate to allow her to be examined in an atmosphere
free from stress and anxiety which is only possible when the
petitioner is in custody.
Be that as it may, this court for the time being declines bail to
the petitioner setting him free to revisit this court in case trial gets
further delayed or prosecutrix is examined whichever is earlier.
Accordingly with the above said liberty, the instant bail
application stands rejected.
(Sheel Nagu)
Judge
(Bu)
DHANANJAYA BUCHAKE
2018.01.3014:57:08 +05'30'