Madhya Pradesh High Court
Bilal Khan vs The State Of Madhya Pradesh on 22 November, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 22nd OF NOVEMBER, 2022
MISC. CRIMINAL CASE No. 51604 of 2022
BETWEEN:-
BILAL KHAN S/O SHRI BANNE KHAN, AGED
ABOUT 30 YEARS, OCCUPATION: DRIVER H.NO.
2007 SAMEER KHAN AHATA MANKSHA
AISHBAGH BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.K. PAROHA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION NISHANTPURA DISTRICT
BHOPAL (MADHYA PRADESH)
2. VICTIM X S/O NOT MENTION NOT MENTION
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT-STATE BY SHRI DEV DUTT BHAVE, PANEL
LAWYER)
(OBJECTOR BY SHRI ANKIT SAXENA, ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This first post-arrest application under Section 439 of the Code of Criminal Procedure has been filed on behalf of the applicant for grant of bail, who is behind the bars since 10.05.2022 in connection with Crime No.454/2022 registered at Police Station Nishantpura, District Bhopal (M.P.) for the offence punishable under Sections 376, 450, 452, 506, 507 of the Indian Penal Code and Sections 3, 4 of Protection of Children from Sexual Offences Act, 2012.
Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/24/2022 6:46:43 PM 2Admittedly, the prosecutrix was minor, aged about 16 years & 9 months at the time of incident and in her statement recorded under Section 164 of CrPC, she has explicitly alleged against the applicant that he entered in her house and committed rape with her. However, learned counsel for the applicant sanguinely submits that in the court statement, the prosecutrix has turned hostile to some extent and did not support her earlier version about developing the physical relation by the applicant without her consent.
In contrast, learned counsel for the State and counsel for the objector submit in unison that FSL report has come positive, which confirms the factum of rape. That part, learned counsel for the State while relying upon an order passed on 22.03.2022 by the Coordinate Bench in M.Cr.C.No.11936/2022 (Pretam Mandal v. The State of Madhya Pradesh), advocates for outright dismissal of instant bail application.
Of a note, the Coordinate Bench while dismissing the bail application of Pretam Mandal (supra) has duly considered the order passed by the Bombay High Court in case of Sunil Mahadev Patil v. State of Maharashtra ABC 2016 (1) 34 BOM and also the order passed by the High Court of Delhi in XXX v. State Govt. of NCT of Delhi and Anr. (Bail Application No.2729/2022), wherein following factors were delineated for reaching a significant conclusion whether to grant bail or not:-
"12. The overall considerations while deciding such applications can be summed up as-
When a boy and a minor girl are in love with each other and chose to live together without consent of their parents, then the following factors are to be considered;Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/24/2022 6:46:43 PM 3
(i) What is the age of the prosecutrix, who is minor.
(ii) Whether the act is violent or not.
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of repeating the Act or not.
(v) Whether there is likelihood of threats or intimidation, if at all the boy is released.
(vi) Whether any chance of tampering with the material witnesses when their statements are recorded.
(vii) It is also to be taken into account in such cases that a boy in his early 20s deserves to get employment and to plan, stabilize and secure his future."
Albeit, there can be no precedence in criminal jurisprudence, especially when dealing the bail matters, but having regard to the above-quoted factors and finding the existing fact situation which envelopes the criteria summed up in Sunil Mahadev Patil (supra), I am too of the opinion that the existing circumstances suitably befit the applicant to get bail.
Momentarily, factor No.(iv) - "Whether the offender is capable of repeating the Act or not." exudes a thin doubt in my mind, for which learned counsel for the applicant rest assured on behalf of the applicant that such act will never be replicated by the applicant after his release and even a minuscule possibility of redoing akin act would itself deprive him from having the advantage of bail.
Inevitably, while considering the regular bail application, it is incumbent upon the Court to see whether under the circumstances the offence is Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/24/2022 6:46:43 PM 4 committed by the accused prima facie case is made out or not. Moreso, the Court is also obliged to see the intention or motive behind the act and cannot ignore the fact as to under what intention said offence is committed and considering those aspects the guiding factors, as quoted hereinabove, can be applied and decision can be taken whether bail can be granted or not.
In the case at hand, the court statement of prosecutrix is available on record, wherein she stated in the court that at the time of developing the physical relation with the applicant, she was aged about 17 years and was a school-going student of Class-XII. The applicant was a tenant in her house and as such they became friendly, although after their relation became known, her parents got the house vacated from the applicant, but even after that he was in incessant touch with her mother and used to come to her house. The applicant also gave a proposal of marriage, but prosecutrix refused to it. The prosecutrix has also apprised her parents about the demeanour of applicant as he was pressurizing her to perform marriage and then her parents persuaded prosecutrix to make a report to the police and as such report was made. The prosecutrix in her statement before the court has not alleged about commission of rape by the applicant, conversely she stated that the applicant did no forcibly act with her. Albeit, as per the counsel for the State, FSL report is positive and MLC also depicts some marks over the body of prosecutrix, whereas the DNA report is awaited. Thus, the story narrated by the prosecutrix in the court statement and available on record, the applicant is not a habitual offender as no criminal antecedent is reported. There is no material indicating that even after arrest any type of threat is given by applicant's side. The material witnesses are already examined, therefore, there is no question of tampering any material witnesses. The age of the applicant is 30 years. However, considering the order Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/24/2022 6:46:43 PM 5 passed by the Coordinate Bench in which factual aspects are not similar to present case as here the prosecutrix is not consistent in her statement and nor did she support her version made in 164 statement. Statement of 164 in any manner cannot override or prevail over the court statement. Looking to the age of prosecutrix and her oscillated conduct before the trial Court at the time of recording the statement, not supporting the case of prosecution and the other aspects as have been discussed hereinabove can be taken note of.
In view of the above discourse, but without commenting any view on merits, this application is allowed. It is directed that the applicant be released on bail upon his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with one solvent surety of the like amount to the satisfaction of the trial Court concerned for his appearance on the dates given by it.
I t is further directed that the applicant shall abide by the conditions enumerated in Section 437(3) of the Code of Criminal Procedure.
Certified copy as per rules.
(SANJAY DWIVEDI) JUDGE Sudesh Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/24/2022 6:46:43 PM