Madhya Pradesh High Court
Himanshu Soni vs The State Of Madhya Pradesh on 27 June, 2023
Author: Nandita Dubey
Bench: Nandita Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
ON THE 27 th OF JUNE, 2023
MISC. CRIMINAL CASE No. 17957 of 2023
BETWEEN:-
HIMANSHU SONI S/O SHRI DINESH KUMAR SONI,
AGED ABOUT 29 YEARS, OCCUPATION: GOVERNMENT
SERVANT R/O 154/12 JAWAHAR MARG HATAI
MOHALLA NEAR LAXMI GANESH MANDIR DHAMNOD
DISTRICT DHAR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI N.P. VERMA -
ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION OBEDULLAGANJ DISTRICT RAISEN (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI A.S. BAGHEL - GOVT. ADVOCATE FOR RESPONDENT/STATE &
SHRI ASHISH UPADHYAY - ADVOCATE FOR THE OBJECTOR )
This application coming on for admission this day, the court passed the
following:
ORDER
This is repeat (second) application filed by the applicant under Section 438 of Cr.P.C. for grant of anticipatory bail. First application MCrC No. 8872/2023 was dismissed on merits vide order dated 27.02.203.
The applicant apprehends his arrest in connection with Crime No.434/2022 registered at Police Station Obedullaganj, for the offence punishable under Sections 376, 376(2)(n), 328 and 506 of IPC.
An objection has been raised regarding maintainability of the successive Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 6/30/2023 4:45:17 PM 2 bail application under Section 438 of Cr.P.C., when the first bail application was rejected on merits.
Learned Senior Counsel for the applicant has urged that there is no bar in entertaining a successive application under Section 438 of Cr.P.C. He has placed reliance on (2014) 16 SCC 501 Jagmohan Bahl and another Vs. State (NCT of Delhi) and another, (2011) 14 SCC 765 Bhaskar Mishra Vs. State of M.P. and on a Division Bench decision passed in a reference in the case of Imratlal Vishwakarma and others Vs. State of M.P. 1996 MPLJ 662 (M.Cr.C. No. 648/1995) to substantiate his arguments.
In Imratlal Vishwakarma (supra), in para 10, the Court held thus :-
10........If the application has been filed on the same grounds which had already been considered earlier while rejecting the first bail application, it can be rejected summarily on the ground that the same grounds have been re-agitated in the fresh petition and the petition has not been moved on any new ground. However, it shall have to be considered in each petition on the facts and circumstances of that case that the said aspects had been pressed into service in the previous petition which was rejected and no new ground has been shown to exist for releasing the petitioner on bail under Section 438, Criminal Procedure Code. This can be determined only on the facts and circumstances of each case and the Court has to decide as to whether the fresh petition has been filed on the same grounds which were considered and not accepted, or rejected in the previous petition and no new ground has been made out in the second application. In our opinion, to say Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 6/30/2023 4:45:17 PM 3 that the second application filed under Section 438, Criminal Procedure Code would not be tenable, would be laying down something which is not there in codified and legislated legislation.
In view of the aforementioned decisions, the objection regarding maintainability is rejected, however, the repeat application can only be considered if there exists changed circumstances or any subsequent information that has come to the light.
The earlier bail application was dismissed after considering the 164 statement of the prosecutrix and it was observed that as per the allegations, the applicant spiked the drink of the prosecutrix and had sexual intercourse with her, when she was unconscious and made a video and thereafter under the threat of making the video viral, she was further subjected to his lust.
The present application has been filed on the ground that applicant being a government servant would face a great prejudice if he is arrested and that earlier proper facts could not be placed before the Court. Referring to the voluminous whatsapp chats/messages (transcript), it is argued that after the alleged date of incident no communication/ message or allegation in this regard was made by the prosecutrix in her whatsapp messages. It is further argued that prosecutrix is a resident of Indore and the alleged incident happened at Bhopal, however, the FIR was lodged at Obedullaganj. It is stated that the transcript is a part of case diary. However, the same is denied by the counsel for the State. It submitted by learned counsel for the objector that after rejection of first application the applicant is absconding and a reward of Rs.5,000/- has been announced on him. He is not co-operating in the investigation and trial. Though according to the learned Senior Counsel, the mobile of the applicant Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 6/30/2023 4:45:17 PM 4 has been handed over to the police authorities, however no such seizure memo is on record.
In the present case, the incident is dated 29.08.2021. The first application was dismissed on 27.02.2023 after considering detailed arguments and the entire case diary. There is no change in fact situation which existed on the date of rejection of his earlier application. The voluminous whatsapp messages (transcript), running in more than 1750 pages, which is filed alongwith the present bail application is a part of defence of the applicant and for evaluating prima facie case, minute appreciation of such documents which are not even a part of case diary is not required.
The voluminous whatsapp chats/transcript produced alongwith this bail application will not fall under the category of "changed circumstances".
In my considered opinion, once an application under Section 438 of Cr.P.C. has been dismissed on merits, second application for grant of anticipatory bail is not maintainable in absence of any changed circumstances.
In view of aforesaid, this second repeat application under Section 438 of Cr.P.C. filed after the dismissal of first application on merits is not maintainable and accordingly dismissed.
The applicant is directed to surrender and seek regular bail.
(NANDITA DUBEY) JUDGE gn Signature Not Verified Signed by: SMT. GEETHA NAIR Signing time: 6/30/2023 4:45:17 PM