The Madhya Pradesh High Court recently comprising of a bench of Justice Anil Verma while dismissing a bail application observed that marshalling of prosecution witnesses not permitted at stage of bail.
The bench remarked, “As per the law laid down by the Hon'ble Supreme Court in Satish Jaggi, this Court can only go into the question of the prima facie case established for granting bail. At the stage of consideration of bail, this Court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution.” (Ashok V. The State Of Madhya Pradesh And Anr.)
Facts of the case
The third bail application under Section 439 of the Code of Criminal Procedure, 1973 was filed on behalf of the applicant for grant of bail. His first and second bail applications were disposed of. The applicant was in custody since 22/06/2018 in connection with Crime registered at Police Station – Rau, District Indore (M.P.) for commission of offence punishable under Section 363, 366, 376(2)(i), 376(2)(n) and 506-II of the Indian Penal Code, 1860 read with Section 5(m)/6 and 5(l/6) of the Protection of Children from Sexual Offences Act, 2012.
As per prosecution story, the prosecutrix was minor and was 11 years of age at the time of incident. She knew the present applicant before the incident. The present applicant abducted the minor prosecutrix and kept her at his sister's village and committed rape upon her and threatened her to kill if she disclosed anyone about the incident. The sister of the prosecutrix lodged a missing person report in respect of the prosecutrix. Accordingly, crime has been registered against the present applicant.
Contention of the Parties
Learned counsel for the applicant submitted that the applicant is innocent person and he has been falsely implicated in this offence. He is in custody since 22/06/2018. Investigation is over and charge sheet has been filed. Nine witnesses including the prosecutrix have been examined by the prosecution. Medical evidence is not supporting the prosecution version. Final conclusion of the trial is likely to take sufficient long time. The applicant was permanent resident of Indore district. Under the above circumstances, prayer for grant of bail may be considered on such terms and conditions, as this Court deems fit and proper.
Per contra, learned counsel for the respondent / State opposed the bail application and prays for its rejection by submitting that the prosecutrix was only 11 years of the age at the time of incident and she categorically stated in her statement against the present applicant. Hence, he is not entitled to be enlarged on bail.
Counsel for the objector also opposed the bail application and prays for its rejection.
Courts Observation & Judgment
The bench at the very outset observed, “Considering all the facts and circumstances of the case, nature and gravity of offence, arguments advanced by the learned counsel for the applicant and also taking note of the fact that as per the scholar register prosecutrix's date of birth is 08/03/2006, therefore, she was below 12 years at the time of incident. Prosecutrix has been examined before the trial Court and she has categorically stated in her statement that present applicant abducted and committed rape upon her several times.”
The bench referred to the judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007, wherein it was held : “At the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.”
The bench taking note of the same remarked that at the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted as per the judgment.
The court dismissing the application remarked, “As per the law laid down by the Hon'ble Supreme Court in Satish Jaggi (supra), this Court can only go into the question of the prima facie case established for granting bail. At the stage of consideration of bail, this Court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. In the statement recorded before the trial Court, the prosecutrix has categorically stated against the present applicant about the aforesaid crime.
In view of the evidence available on record, as above, without commenting upon the merits of the case, at this stage, this Court is not inclined to enlarged the applicant on bail.”
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