Pramod Singh Narwariya vs The State Of Madhya Pradesh
2021 Latest Caselaw 2456 MP

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         THE HIGH COURT OF MADHYA PRADESH
                   Cr.A. No. 3521/2021
             Pramod Singh Narwariya v. State of M.P. and Anr.

                Heard through Video Conferencing.

Gwalior, Dated : 16/06/2021

      Smt. Upendri Singh Narwariya, learned counsel for the

applicant.

      Shri Alok Sharma, learned counsel for the State.

      None for the respondent No. 2/complainant.

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 (in short "Act").

Case diary is not available.

This first criminal appeal under Section 14(1-A) of the Act has

been filed for grant of bail.

The appellant has been arrested in connection with Crime

No.334/2019 registered by Police Station Gormi Distt. Bhind for

offence punishable under Sections 363, 366-A, 376 (2) (N) of IPC

and Section 5/6 of Protection of Children from Sexual Offences Act

and Section 3 (2) (5) and 3 (1) (w) (ii) of Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities), Act, 1989.

It is submitted by the counsel for the applicant that the police

after concluding the investigation has filed the charge-sheet and same

is placed on record, therefore, the bail application may be considered

on the basis of the charge-sheet.

Prayer accepted.

It is the case of the applicant that the complainant eloped with

the applicant on 31/09/2019 and thereafter the applicant left the

prosecutrix in front of the police station on 07/11/2019. It is

submitted by the counsel for the applicant that ossification test of the

prosecutrix was conducted on 09/11/2019 and as per ossification test

report her age was assessed between 17 to 18 years. It is further

submitted that the applicant is in jail for the last 8 months. If the

applicant is released, he would look after the prosecutrix and the

child properly.

Per contra, it is submitted by the counsel for the State that as

per the School Record, the date of birth of prosecutrix is 07/06/2005,

thus on 31.09.2019 the prosecutrix was less than 14 years. It is

submitted that in fact after the prosecutrix was recovered on

07/11/2019, she again eloped with the applicant on 01/01/2020 and

accordingly, Crime No.07/2020 has been registered at Police Station

Gohad, District Bhind. It is further submitted that a letter of

guarantee was executed by the applicant and prosecutrix on

18/09/2020 at Bhind claiming interalia that they have married in a

temple and now they are residing as husband and wife. It is submitted

that in the letter of guarantee, which has been executed in the form of

affidavit, although it is mentioned that the applicant and the

prosecutrix have married in a temple but neither the date of marriage

nor name of the temple has been disclosed. Even it is not mentioned

that the marriage was performed by observing Saptpadi. It is further

submitted that performance of marriage by execution of affidavit is

not recognized form of marriage because under Hindu Marriage Act

"Marriage is not contract". So far as the ossification test report is

concerned, in the light of Section 94 of Juvenile Justice (Care and

Protection of Children) Act, 2015, where the school record is

available, then the ossification test report is not to be considered.

Since the date of birth of prosecutrix is 07/06/2005 and she was

minor on the 31/09/2019 i.e. the date on which she eloped with the

applicant for the first time as well as on 01/01/2020 the date on

which she eloped with the applicant for the second time, therefore,

consent of the prosecutrix is immaterial. Further, the prosecutrix has

given birth to a child of the applicant. The Supreme Court in the

case of Independent Thought Vs. Union of India & Anr. reported

in 2017(10) SCC 800 has read down Exception 2 of Section 375 of

IPC and thus it is clear that the physical relationship with wife below

the age of 18 years is also an offence under Section 376 of IPC.

Considering the fact that the prosecutrix has already given the

birth to a child as well as in the light of the judgment dated

12/01/2021 passed by Supreme Court in the case of Anversinh @

Kiransinh Fatesinh Zala Vs. State of Gujarat in CRA

No.1919/2010, this Court is of the considered opinion that no case is

made out for grant of bail.

Accordingly, the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge ar

ABDUR RAHMAN 2021.06.17 11:27:03 +05'30'