Madhya Pradesh High Court
Irshad Khan vs The State Of Madhya Pradesh on 16 December, 2014
M.Cr.C. No. 19033/2014
16.12.2014
Shri S.K. Mishra, learned counsel for the applicant.
Shri Akshay Namdeo, learned Panel Lawyer for respondent-State.
Learned P.L. submits that he is under receipt of the case diary. Learned counsel for the applicant by referring his office copy of index alongwith copies of some affidavits said that he has filed the same in the Registry on 15.12.2014 as document no. 3448/14.
The same are not placed with the record, hence by taking the aforesaid office copy of the index on record, the Reader is directed to call the original and place it with the record during the course of the day.
In the course of hearing on arising the occasion, the aforesaid affidavits filed with the index may be considered.
Heard.
On behalf of the applicant, this second repeat petition is preferred under Section 439 of Cr.P.C. for grant of bail as he is in custody since 17.9.2014 in connection with Crime No. 627/12, registered at Police Station Nishatpura, district Bhopal for the offence under Sections 363, 366, 376 of IPC and Section 3/4 of Protection of Children from Sexual Offences Act 2012.
It is noted that his earlier application filed in this regard was dismissed, vide order dated 14.10.2014 in M.Cr.C. No. 25709/2014 by extending a liberty to the applicant to revive the prayer after filing the charge sheet in the matter. The charge sheet has already been filed as submitted by the applicant's counsel and such fact has not been disputed by learned PL.
Alongwith the aforesaid index document no. 3448/14, an affidavit of the prosecutrix, Shadma Khan, wife of the applicant and Altaf Khan, father of the prosecutrix have been placed. The same being relevant with the matter, are taken on record.
The applicant's counsel after taking me through the petition as well as other papers placed on record alongwith the aforesaid affidavits by referring some provisions of Mohamden law relating to person having faith in Sunni Branch argued that in Sunni community after the age of fifteen years the marriage of the girl can be solemnized and according to rites and rituals and customs of the community, the Nikah of prosecutrix was performed with the applicant and thereafter they have resided together as husband and wife and out of such wedlock they have been blessed with a son, who is now the age of near about four months but due to some differences with the senior members of the family of the prosecutrix as well as the applicant the matter was reported to the Police, on which the impugned case was registered. In continuation, he said that as per affidavit of the prosecutrix, she is married wife of the applicant and wants to reside with him and her father does not have any objection and in such premises, if the applicant is not released on bail, then the marrital life of the prosecutrix and the applicant may be ruined. With these submissions, he prayed for extending the benefit of bail to the applicant.
On the other hand, responding the aforesaid arguments learned PL with the assistance of the case diary said that on the date of the incident the prosecutrix was of the age of seventeen years and 1/2 months and in such premises, she being the below the age of eighteen years was minor and therefore on the basis of consent of the prosecutrix the applicant does not deserve for grant of bail. However after perusing the provisions of Muhammad Law, he does not dispute the aforesaid principle as argued by the applicant's counsel and prayed for dismissal of this petition.
Having heard the counsel, keeping in view also the arguments, after perusing the case diary as well as papers of the charge sheet alongwitht he aforesaid provisions of Muslim Law, taking into consideration the factum regarding marriage of the prosecutrix with the applicant by which they have been blessed with a son, so also in the light of the affidavits of the prosecutrix and her father, keeping in view also the circumstance that if the applicant is not released on bail, then the marrital life of the applicant as well as of the prosecutrix may be ruined, without expressing any opinion on merits of the matter, this petition is allowed.
It is directed that on furnishing a personal bond of Rs.20,000/- (Rs. Twenty thousand) by the applicant along with one surety of the like amount to the satisfaction of the trial court, the applicant Irshad Khan shall be released on bail with a direction to appear on each and every date of hearing before the trial Court.
His single non-appearance before the trial Court shall lead to automatic dismissal of this bail order.
C.C. as per rules.
(U.C.Maheshwari) Judge bks