Nikhil Narayan Mathur vs The State Of Madhya Pradesh
2021 Latest Caselaw 3667 MP

     HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                       CR. A. No. 4263 / 2021
      NIKHIL NARAYAN MATHUR Vs. STATE OF MP AND ANOTHER
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INDORE, Dated : 28/07/2021
       Heard through video conferencing.
       Mr. Pradeep Gupta and Mr. Avinash Khare, learned counsel for
the applicant.
       Mr. Vismit Panot, learned PL for the respondent - State.

Learned counsel for the respondent - State submits that notice has been served to the victim.

1. This first appeal u/S. 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 438 of the Code of Criminal Procedure, 1973, is directed against the order dated 14/7/2021 passed by Special Judge, SC / ST (Prevention of Atrocities Act), Indore in B.A.No. 3269/2021, in connection with Crime No. 296/2021 registered at P.S. Juni Indore, Indore, for commission of offence u/S. 376(2)(n) and 506 of the Indian Penal Code, 1860 and Sec. 3(1)(w)(II), 3(2)(v) and 3(2)(va) of the Scheduled Caste / Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. As per prosecution story, the prosecutrix belongs to Scheduled Caste category and applicant belongs to General Caste. Applicant is working as Branch Manager in State Bank of India. In the year 2013- 2014 when applicant was posted at Gwalior and he was staying in a rented house, the prosecutrix used to go to his house for domestic chores and to cook food. The applicant contemplated her to marry in the year 2017. Applicant proposed her that she will have to leave her husband and children and stay with the applicant at Bhopal. Accordingly, the prosecutrix left her house and came to live with the applicant. The applicant kept the prosecutrix in a rented house at Indore and committed rape upon her several times without her consent. Applicant used to take her to Delhi and there also used to rape her several times in the Guest House and forced her to have HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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unnatural sex with him by intoxicating the prosecutrix and threatened her to upload her porn video on social site. The applicant had committed her sexual harassment regularly and falsely implicated her in the case of blackmailing and due to which she was sent to Jail. The prosecutrix submitted a return complaint in P.S. Juni Indore, Indore against the applicant. On the basis of such complaint, FIR bearing No. 296/2021 has been registered against the applicant.

3. Learned counsel for the applicant submits that prosecutrix is a 31 year old major lady and having two children. Applicant is a Bank Manager in State Bank of India, Branch Naraina, New Delhi. Applicant never gave any assurance to the prosecutrix to marry her. After 2014 prosecutrix established physical relationship with the applicant on her own accord and they came close with each other. After one day when the applicant came to know that prosecutrix is a married lady and having two children, then applicant told her that she will have to leave her husband and children, but the prosecutrix started building pressure on the applicant and used to threaten him to lodge report of rape against the applicant or she will commit suicide. When applicant's marriage was fixed with Bhawna Saxena in the year 2016, then the prosecutrix started blackmailing him and on her demand the applicant paid Rs.5,00,000/- (Rs. Five lacs) to her in two installments. However, the prosecutrix submitted a complaint in P.S. Mahila Thana against the applicant. Applicant again paid Rs.2,00,000/- (Rs. Two lacs) to her. Thereafter the present applicant lodged FIR against the prosecutrix for blackmailing him. As a counter-blast, the prosecutrix has lodged this FIR against the present applicant. It is further submitted that applicant is innocent and has been implicated falsely in the present offence.

4. Learned counsel for the applicant further submits that in the case of Mohit Nagar Vs. State & Another Crl.M.C. No. 2454 / 2016 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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dt. 24/3/2017 the Delhi High Court has observed that the Court can, in exceptional case, exercise power under Section 482 of the Code of Criminal Procedure, 1973. It is further submitted that bar under Section 18 of the SC / ST Act does not apply to the present application u/S. 438 of the Code of Criminal Procedure, 1973 as from the bare perusal of the tone and tenor of the FIR, no prima facie case under the SC / ST Act is made out against the applicant as there is no direct allegation in the FIR that wrong as committed to prosecutrix only because she was a member of a Scheduled Caste. The prosecutrix herself admits being in consensual relation with the applicant for a long duration since 2013, despite being married. Hence, on collective reading of the FIR, the allegations under the SC / ST (Prevention of Atrocities) Act is not made out.

5. Learned counsel for the applicant has placed heavy reliance upon the judgment delivered by the apex Court in the case of Prathvi Raj Chauhan Vs. Union of India and others reported in (2020) 4 SCC

727. The apex Court has held as under :

11. Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions.

12. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.

6. Reliance has also been placed upon the judgment delivered by the apex Court in the case of Rajiv Thapar and others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330; Prashant Bharti Vs. State (NCT of Delhi) reported in (2013) 9 SCC 293; Dinesh Alias buddha Vs. State of Rajasthan reported in (2006) 3 SCC 771 and Khuman Singh Vs. State of MP reported in 2019 SCC OnLine SC 1104.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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7. Learned counsel for the applicant further submits that the prosecutrix in her previous complaint has herself admitted that she is married and having two children and as a matter of fact, she never divorced her first husband and developed relationship with the applicant solely for the purpose of blackmailing him and extorting money, which the applicant later on realised and lodged the FIR against the prosecutrix and her husband. The prosecutrix also admitted that she was also aware that applicant got married in 2017. Prosecutrix herself admits that despite being a married lady, she wilfully consented to the relationship that too over a long duration since 2013 and in respect of which she has filed complaint in 2021 which leads to one and the only conclusion that present case is nothing but a malicious prosecution of the applicant. The prosecutrix does not bear a good character which gets fortified from the statement u/S. 161 of the Code of Criminal Procedure, 1973 of Mona, recorded in Crime No. 475/2020, wherein she has stated that prosecutrix was having relationship with one Kunal and also lived with him in Indore in 2018.

8. Under these circumstances, learned counsel for the applicant prays for grant of pre-arrest bail and issue further directions, as may be found fit, in the facts and circumstances of the case.

9. Per contra, learned counsel for the respondent - State has vehemently opposed the prayer for grant of anticipatory bail to the present applicant and prays for the rejection of the bail application.

10. Heard learned counsel for the parties at length and perused the impugned order, case diary and all the relevant documents filed by the applicant in support of his bail application.

11. In the case of Prithvi Raj Chauhan (supra), it is held that where no prima facie material exists warranting any complaint in the matter of SC / ST (Prevention of Atrocities) Act, the Court has inherent power to direct the pre-arrest bail.

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12. Learned counsel for the applicant placed reliance upon various citations filed by him, but it is a settled position of law that every case has to be dealt with based on its individual factual matrix and no settled principle or straight jacket formula can be applied, especially while deciding the bail matters where only prima facie observation can be taken to be appropriate in the facts of the concerned case.

13. The main contention of the learned counsel for the applicant is that complainant has falsely implicated the applicant in the offence of rape upon her under Section 376(2)(n) of the Indian Penal Code, 1860. Undoubtedly, it is an admitted position that prosecutrix had worked in the house of present applicant as a domestic servant for a long time. Applicant himself admits in his bail application that the prosecutrix has established physical relationship with him. The complainant also contended before the trial Court during hearing of the bail petition that there was physical relationship between the prosecutrix and the applicant. Applicant also contended that he has paid Rs.7.00 lacs to the prosecutrix after being blackmailed and he sent Rs.5.00 lacs from his Bank account to the Bank account of the prosecutrix in two installments of Rs.1,50,000/- and Rs.3,50,000/-, but he did not produce any relevant documents for such bank transactions.

14. For the offence of Sec. 376 of the Indian Penal Code, 1860, consent of the prosecutrix is important ingredient. As per Section 375 of the Indian Penal Code, 1860, for the offence of rape, following ingredients are necessary :

First.--Against her will.

Secondly.--Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under eighteen years of age.

Seventhly.--When she is unable to communicate consent. Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.--A medical procedure or intervention shall not constitute rape.

Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

15. In this upset, it is necessary to observe that in the present proceeding, this Court is concerned not about the proof of allegation of the offence punishable under Sec. 376 of the Indian Penal Code, 1860 or merit thereof, but only to grant anticipatory bail to the present applicant. Therefore, the submissions on behalf of the applicant attempting to find out the loopholes and weaknesses of the prosecution story would not be relevant in the present matter. In the considered opinion of this Court, at this stage, it cannot be said that as to whether the physical relationship between the applicant and the prosecutrix was conseusual and if the consent given by the prosecutrix regarding sexual intercourse with the applicant, it can be proved by the evidence of the prosecutrix and other witnesses when they will enter into the witness box. In the present, specific allegations of rape are against the applicant, it would be ultimately for the trial Court to HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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arrive at a finding as to whether such allegations stand proved or not, on the basis of evidence that would be produced by the prosecution in support of its case. With this preliminary observation, I advert to the core issue, whether under the circumstances of the case, applicant is entitled for anticipatory bail or not and whether the learned trial Court was justified in rejecting the anticipatory bail application of the applicant.

16. Looking to the facts and circumstances of the case and prima facie evidence available on record, in the considered opinion of this Court, while perusing the allegations levelled against the petitioner and considering the gravity of the offence and its nature, this Court is not inclined to grant anticipatory bail to the present applicant. Accordingly, the present appeal for grant of anticipatory bail is dismissed.

Certified copy, as per Rules.

(ANIL VERMA) JUDGE KR

Digitally signed by KAMAL RATHORE Date: 2021.07.29 18:51:30 +05'30'