Bhola Jain vs The State Of Madhya Pradesh
2021 Latest Caselaw 4178 MP

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             The High Court Of Madhya Pradesh
                      MCRC-39512-2021
                 (BHOLA JAIN Vs THE STATE OF MADHYA PRADESH)




Gwalior, Dated : 11.08.2021

      Shri Jitendra Kumar Sharma, learned counsel for the applicant.

      Shri    Vinod    Pathak,     learned    Panel    Lawyer,   for   the

respondent/State.

This is second bail application u/S.439 Cr.P.C. filed by the

applicant for grant of bail.

Applicant has been arrested on 05.02.2021 by Police Station

Ambah, District Morena (M.P.) in connection with Crime No.114/2021

for the offence under Sections 376, 376(2)(n), 344 of IPC and Section

5, 6 of POCSO Act and Section 9, 10 and 11 of Prohibition of Child

Marriage, Act, 2006.

Earlier bail application was rejected on merits vide order dated

27.05.2021 passed in M.Cr.C.No.25640/2021. Now, the applicant is

further remained under custody for almost two months. It is submitted

that recently in similar circumstances, this Court has considered the

similar circumstances and allowed the application in the case of one

Ravi passed in M.Cr.C.No.36403/2021 (Ravi Vs. State of M.P.) dated

30.07.2021. The applicant submits that the case of the applicant is

exactly identical to that of the case of Ravi. He submits that the

applicant as well as the victim have known to each other and they have

solemnized their marriage and out of the wedlock a child is also born.

It is submitted that their parents got her marriage solemnized even

The High Court Of Madhya Pradesh MCRC-39512-2021 (BHOLA JAIN Vs THE STATE OF MADHYA PRADESH)

when she was a minor. But the facts remains that no offence under

Section 376 of IPC is made out looking to the facts and circumstances

of the case. Applicant is the first offender and is in custody since

05.02.2021 and as charge-sheet has already been filed in the matter and

there is no requirement of custodial interrogation of the applicant, he

prays for grant of bail.

Per contra, State counsel has opposed the bail application stating

that in the statement of the victim recorded under Section 161 of

Cr.P.C. she has specifically stated that rape has been committed

without her consent despite of her opposition. In her statement

recorded under Section 164 of Cr.P.C. she has further stated that she

was subjected to forcible sexual intercourse by the applicant. She used

to be kept in a locked room and foods were also being given from the

window. She was not permitted to go out anywhere. Despite

resistance being done by the victim on several occasions, the applicant

has committed forcible intercourse with the victim. She is a minor

aged out 16-17 years. In such circumstances, when there is a specific

averment with respect to forcible sexual intercourse by the present

applicant coupled with the fact that a minor was forcefully married by

her parents for which an offence under Section 9 of the Child Marriage

Act. In such circumstances, he has prayed for dismissal of the

application.

The High Court Of Madhya Pradesh MCRC-39512-2021 (BHOLA JAIN Vs THE STATE OF MADHYA PRADESH)

Taking into consideration the overall facts and circumstances of

the case and also the fact that the victim is 16-17 years of age and the

marriage has also been taken place between them but as there is

specific denial by the victim that she was married him without her will

and she was subjected to forceful sexual intercourse by the applicant

and the judgment relied upon by the applicant is also does not

applicable in this case. In such circumstances, no case for bail is made

out. The application is hereby rejected

(Vishal Mishra) mani Judge

SUBASRI MANI 2021.08.12 18:37:38

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