Gagan Ojha vs The State Of Madhya Pradesh
2021 Latest Caselaw 2248 MP

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            THE HIGH COURT OF MADHYA PRADESH
                       CRA No.3006/2021
              (GAGAN OJHA VS. STATE OF M.P. & ANR.)

Gwalior, Dated : 10/06/2021

      Shri Vivek Kumar Vyas, learned counsel for the appellant.

      Shri Nitin Goyal, learned counsel for the State.

      None for the complainant.

      Heard through video conferencing.

      Case diary is available.

      It is submitted by the counsel for the State that the complainant

has been informed about the pendency of this appeal as required

under Section 15-A of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act.

      Case Diary is available.

      This Criminal Appeal for grant of bail has been filed under

Section 14A(2) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities), Act, 1989 against the order dated

23/12/2020 passed by Fifth Additional Sessions Judge, Shivpuri by

which the application filed by the appellant for grant of bail has been

rejected.

      The appellant has been arrested on 15/12/2020 in connection

with Crime No.310/2020 registered at Police Station Pohri, District

Shivpuri for offence punishable under Section 366, 344, 376(2)(n) of

IPC, under Section 3(2)(v), 3(2)(va) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities), Act.
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      It is submitted by the counsel for the appellant that the

appellant is in jail from 15/12/2020 and the period of detention can

be said to be a change in circumstances.

      Per contra, the appeal is opposed by the counsel for the

respondent/State. It is submitted by the counsel for the State that

while deciding the first CRA No.249/2021, this Court had taken note

of the fact that the appellant had executed a marriage affidavit to give

a bonafide belief in the mind of the prosecutrix that now she is

legally wedded wife of the appellant. However, when the second

CRA No.1505/2021 was filed, the counsel for the appellant

deliberately did not place the marriage affidavit on record and when

this Court took note of the said fact in its order dated 08/03/2021, the

appellant immediately withdrew the second CRA No.1505/2021,

which is evident from the order. It is submitted that now once again

the counsel for the appellant has deliberately not placed the copy of

the marriage affidavit on record, which clearly amounts to suppress.

It is further submitted that the notaries or Oath Commissioners

are not marriage officers under the Special Marriage Act and under

the Hindu Law the marriage is not a contract and, therefore, there

cannot be any valid marriage by execution of marriage affidavit.

Heard the learned counsel for the parties.

In the first CRA No.249/2021, the appellant had relied upon a

joint marriage affidavit, which was allegedly executed by the

appellant and the prosecutrix. This Court took an exception to joint

affidavit notarized by Rajbihari Lal Shrivastava. By referring to

judgment dated 31/12/2020 passed by a Co-ordinate Bench of this

Court in the case of Mukesh S/o Mr Lakshman @

Lakshminarayan Vs. The State of M.P. passed in M.Cr.C.

No.44184/2020 (Indore Bench), this Court had issued a direction to

the Principal Secretary, Law and Legislature, State of M.P. for taking

action against the Notary, Shri Rajbihari Lal Shrivastava.

This Court had specifically come to a conclusion that the

appellant had given a bonafide belief in the mind of the prosecutrix

that after the execution of marriage affidavit, she has become legally

wedded wife of the appellant and, therefore, in the light of Section

375 fourthly of IPC, it was held that no case is made out for grant of

bail. Thus, the marriage affidavit, which had given a bonafide belief

in the mind of the prosecutrix is an important document and

unfortunately, the said document was withheld by the appellant by

filing second CRA No.1505/2021.

The most unfortunate part is that when this Court took an

exception to withholding/suppression of marriage affidavit in the

second CRA No.1505/2021, the counsel for the appellant withdrew

the appeal but unfortunately, the appellant has once again suppressed

the material fact and has deliberately withheld/suppressed the

marriage affidavit in the present appeal. It is not out of place ot

mention here that all the three Criminal Appeals have been filed by

the same Counsel. This conduct of a Lawyer cannot be appreciated.

Since, the lawyers are the officers of the Court, therefore, it is always

expected that they would rise to the higher tradition of profession and

should not try to mislead the Court or suppress the material facts.

Be that whatever it may be.

Since, Shri Vyas is a young lawyer and he has a long way to

go, therefore, he is given an advice that instead of suppressing the

material facts, he should not try to mislead the Court.

Be that whatever it may be.

Further more, in the case of Gajendra Singh Marmit Vs.

State of M.P., this Court by order dated 22-4-2021 passed in M.Cr.C.

No. 14999/2021 had not only dismissed the bail application on the

ground of marriage affidavit, but had also directed the Principal

Secretary, Law and Legislative Department, Bhopal and Bar Council

to take actions against the Notary and Counsel. The said order has

been affirmed by Supreme Court by order dated 1-6-2021 passed in

S.L.P. (Cri) No. 3901/2021.

The first criminal appeal filed by the appellant has already

been dismissed on merits. No change in circumstance could be

pointed out by the counsel for the appellant.

The appeal fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Pj'S/-

PRINCEE BARAIYA 2021.06.11 10:26:00 -07'00'