Madhya Pradesh High Court
Salman vs The State Of Madhya Pradesh on 6 May, 2016
MCRC-7181-2016
(SALMAN Vs THE STATE OF MADHYA PRADESH)
06-05-2016
Shri Z.M. Shah, learned counsel for the applicants.
Shri Prakash Gupta, learned Panel Lawyer for the
respondent/ State.
Heard.
This is repeat application filed under Section 439 of the Cr.P.C. for grant of bail to the applicants who has been arrested in connection with Crime No. 139/2015, registered at P.S.- City Kotwali, District-Khandwa for the offence punishable under Sections 363, 366-A, 376 (Chha), 506, 342 of the IPC Section 3(1)(XII) , 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act & 3/4 of the Protection of Children from Sexual Offences Act, 2012.
The earlier applications were dismissed as withdrawn vide order dated 7.9.2015 passed in M.Cr.C. No. 14944 of 2015 and in M.Cr.C. No. 11458 of 2015 vide order dated 03.08.2015.
It is contended by learned counsel for the applicants that subsequently this court granted bail to other accused persons. Copy of the order passed in the case of Rohit Nankani and Sunil Kanoje have been filed. This court passed the following order in the case of Rohit Nankani :-
"Shri Anil Khare, learned senior counsel with Shri H.S. Chhabra learned counsel for the applicant. Shri Vijay Kumar Pandey, learned Panel Lawyer for the respondent/ State. Heard. This is first application filed under Section 439 of the Cr.P.C. for grant of bail to the applicant who has been arrested in connection with Crime No. 139/2015, registered at P.S.- City Kotwali, District- Khandwa for the offence punishable under Sections 363, 366-A, 376 (Jha), 506, 342 of the IPC Section 3(1)(XII) , 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act & 3/4 of the Protection of Children from Sexual Offences Act, 2012. It is submitted by learned senior counsel on behalf of the applicant that police recorded the statements of both the prosecutrix on 06/04/2015 under Section 161 of the Cr.P.C. In both the statements both the prosecutrix did not mention the fact that any rape was committed with them by any person. They mentioned the fact that on 23/02/2015 they had boarded in a bus and went to Indore and from Indore they had gone to Bhopal by train and they stayed at Bhopal about 22-25 days at the house of Babita and thereafter they had gone to the house of another friend Sofia and lived there for a period of 10 days and thereafter they returned back to their house. These statements have not been produced by the police along with the charge-sheet subsequently, both the prosecutrix had levelled allegation against number of persons. Looking to the nature of the allegations, the applicant is entitled to be released on bail. The applicant is in jail since 04/08/2015. The charge-sheet has been filed. The prayer for bail is opposed by learned Panel Lawyer. Certified copy of the statements recorded by the police on 06/04/2015 under Section 161 of the Cr.P.C. have been produced by learned senior counsel. Both the prosecutrix deposed the same facts as mentioned earlier in this order. Subsequently, the statements of both the prosecutrix were recorded under Section 164 of Cr.P.C.by the Magistrate on 09/04/2015. In the aforesaid statement the prosecutrix deposed that accused Sunil came to her house and threatened her that if she would not accompany him he would circulate her photos thereafter, she had gone with Sunil on his motor bike to Deshgaon forest and he had committed rape with her thereafter she and other prosecutrix went to Indore and then the prosecutrix was sent to Bhopal by Sunil. She stayed there in the house of Babita. It is said that husband of Babita had committed rape with her thereafter she was handed over to another lady Sofia @ Gudia and she used to send the prosecutrix to other boys and thereafter the prosecutrix was sent to Katni. The present applicant and another person Manoj had committed rape with her and than the prosecutrix fled away from there. Same facts have been deposed by another prosecutrix in the statement recorded by the Police under Section 161 of the Cr.P.C. again which is in the case diary. The prosecutrix again narrated a different story. In the aforesaid statements they had named number of persons who had committed rape with them, number of persons had not been arrayed as accused. Looking to the aforesaid facts of the case and inconsistency in three statements recorded by the police and Magistrate and earlier statement of the prosecutrix and the fact that the name of the applicant was mentioned subsequently at later stage by the prosecutrix, but without expressing any opinion on the merits of the case, this application is allowed.
It is directed that on furnishing a personal bond in the sum of Rs. 50,000/- (Rs. Fifty Thousand Only) by the applicant along with one solvent surety in the like amount to the satisfaction of the trial court, the applicant be released on bail with a direction to appear before the trial court on the date of the trial. The applicant shall abide by the following conditions of 437 (3) of Cr.P.C. as under:- (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. Certified copy as per rules."
Prima facie there appears to be parity between the present applicant and other accused persons who have been enlarged on bail.
The applicants are in jail since 14.5.2015. The prayer for bail is opposed by learned Panel Lawyer.
Looking to the aforesaid facts and nature of the case, without expressing any opinion on the merits of the case, this application is allowed.
It is directed that on furnishing a personal bond in the sum of Rs. 50,000/- (Rs. Fifty Thousand Only) by each of the applicants along with one solvent surety in the like amount to the satisfaction of the trial court, the applicants, Salman and Anas be released on bail with a direction to appear before the trial court on the date of the trial.
The applicant shall abide by the following conditions of 437 (3) of Cr.P.C. as under:-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
Certified copy as per rules.
(S.K. GANGELE) JUDGE bks