Rajan Shukla Alias Bhupendra Mani ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 8520 MP

                                      1                          MCRC-60327-2021
        The High Court Of Madhya Pradesh
                MCRC No. 60327 of 2021
  (RAJAN SHUKLA ALIAS BHUPENDRA MANI SHUKLA Vs THE STATE OF MADHYA PRADESH AND
                                    OTHERS)


Gwalior, Dated : 09-12-2021
       Mr. Rajmani Bansal, learned counsel for the applicant.

       Mr. Brijmohan Shrivastava, learned Public Prosecutor for the
respondent/State.

This is fifth bail application u/S.439 Cr.P.C filed by the applicant for grant of bail.

First bail application was dismissed as withdrawn vide order dated 21.05.2021 passed in M.Cr.C.No.21651/2021. Second bail application was dismissed on merits vide order dated 28.06.2021 passed in M.Cr.C.No.30052/2021. Third bail application was disposed of as the applicant surrendered before concerned Court vide order dated 17.08.2021 passed in M.Cr.C.No.34750/2021. Fourth bail application was dismissed as withdrawn vide order dated 09.09.2021 passed in M.Cr.C.No.43950/2021.

T he applicant was arrested on 10.03.2021 in connection with Crime No.59/2021 by Police Station Hazira, District Gwalior for the offence

punishable under Sections 363, 376, 506, 34 of IPC and Section 3/4 of POCSO Act.

As per prosecution story, father of the prosecutrix, Santosh has lodged a report at Police Station Hazira, District Gwalior by saying that her daughter, the prosecutrix whose date-of-birth is 18.02.2003 is missing from 05.02.2021. On the said date at about 12 PM she had gone from her house by saying that she is going to college. Thereafter, he searched his daughter but could not trace her out. On his report, a crime under Section 363 of IPC bearing No.59/2021 was registered against unknown person.

Later on, on 08.03.2021 the prosecutrix aged about 18 years 15 days was recovered and she in her statement stated that she is 18 years and 15 days old and studying in B.A. I Year. She knows the applicant from 4 - 5 2 MCRC-60327-2021 months back. They used to talk on phone and were friend. They have started liking each other. The applicant/accused used to tell her that he wants to marry with her. She used to say that she will marry with the permission of her family members. On the date of incident i.e. 05.02.2021, she went to JC Mill for getting done photocopy of some documents at that time the applicant/accused met her and told that he wants to marry her and told to

come along with him. She refused to go with him then the applicant threatened her to come along with him. He forcibly took her to Lucknow, where he committed sexual intercourse with her. Thereafter, he took her to village Balrampur where they stayed for one day. Uncle of applicant told him that the police has come to search him from Gwalior. The applicant along with the prosecutrix used to roam here and there.

On 19.02.2021 without her consent, he married with her in Arya Samaj Mandir. She told about the same to the uncle but he also supported the applicant. On 08.03.2021, the police came to Balrampur and took her to Gwalior. She was sent for medical examination. Thereafter, Sections 376, 506/34 IPC and Section 3/4 of POCSO Act were enhanced and the applicant was arrested. On 09.03.2021, her statement under Section 164 of Cr.P.C. was recorded. After investigation, charge-sheet has been filed before competent Authority.

Learned counsel for the applicant submits that on 28.06.2021, application of the applicant was dismissed on merits and he was not the advocate of the applicant. Before High Court of Judicature at Allahabad, Lucknow Bench, the prosecutrix and applicant submitted a protection petition to this effect that they married to each other and nature of mandamus be issued commanding the opposite parties not to disturb their peaceful married life, which was allowed on 26.02.2021. In support of that petition the prosecutrix has also filed her affidavit. Before that she also filed an application for protection before the Police Station Balrampur on 22.02.2021.

Learned counsel for the applicant submits that while deciding the bail 3 MCRC-60327-2021 application of the present applicant on 28.06.2021, these documents were not considered. Besides this, he has also filed certified copy of the order-sheets of learned trial Court which reveals that the prosecutrix and witnesses are not willing to appear in the Court. They remained absent from 16.09.2021 to 24.11.2021.

On 24.11.2021, learned trial Court opined that, the prosecutrix and witnesses are not willing to depose their evidence, thats why non-bailable warrant was issued against the witnesses. The applicant has also relied upon the judgment of Supreme Court in the case of Babu Singh & others Vs. State of U.P. reported in 1978 SCC (Cri) 133, wherein, it is held :

"An order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While the Court should set store by the circumstance that the bail application was once rejected it cannot be said that the Court is barred from second consideration at a later stage."

On going through the earlier order passed by this Court on 28.06.2021 in M.Cr.C.No.30052/2021, it is clear that before co-ordinate Bench this fact has not come on record that the applicant and the prosecutrix had filed a protection petition before Allahabad High Court under Article 226 of the Constitution of India. Affidavit of the prosecutrix and application filed before Police Station Balrampur by the prosecutrix and order passed on 26.02.2021 by Hon'ble High Court, Allahabad had not been placed on record by learned counsel for the applicant.

High Court of Judicature at Allahabad, Lucknow Bench passed the following order :

"The petitioners seek issuance of a writ in the nature of mandamus commanding the opposite parties not to disturb their peaceful married life. Taking note of the stand that the petitioners have entered into a marital relationship, the Station House Officer, Police Station Kotwali Dehat District Balrampur is hereby directed to ensure 4 MCRC-60327-2021 that no harm is caused to the life and personal liberty of the petitioners till the next date of listing.

Issue notice to respondent No.4. Steps be taken within ten days.

Learned AGA prays for and is granted four weeks' time to file counter affidavit. Two weeks' thereafter is granted to file rejoinder affidavit.

List thereafter."

From perusal of the petition filed by the prosecutrix and the applicant before High Court of Judicature at Allahabad, Lucknow Bench, order passed by the said Bench, documents annexed thereto and the order-sheets of the trial Court, it is apparent that while allowing the petition, the Hon'ble High Court ordered that "no harm is caused to the life and personal liberty of the petitioners" and that prosecutrix and witnesses are not turning up to adduce their evidence right from 16.09.2021 to 24.11.2021 for which, learned trial Court took a note that they are not willing to come, hence, non-bailable warrant was issued. This Court is of the opinion that this is a change in circumstances for which his bail application may be considered.

Learned counsel for the State vehemently opposed the application and prays for its rejection.

Heard learned counsel for the rival parties at length and perused the case diary.

Lo o king to the facts and circumstances of the case, without commenting upon the merits of the case, this Court is of the opinion that the application should be allowed and by allowing the application it is ordered that if the applicant furnishes bail bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court, he should be released on bail. He will present during trial before the trial Court on each and every date.

Application stands allowed and disposed of.

Copy of this order be sent to the trial Court concerned for compliance.

                                            5               MCRC-60327-2021

            Certified copy as per rules.


                                               (DEEPAK KUMAR AGARWAL)
                                                        JUDGE

bj/-

       BARKHA
       SHARMA
       2021.12.0
       9 17:56:14
       +05'30'