Jitendra Kumar vs State Of Mp
2021 Latest Caselaw 2772 MP

1 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30367/2021 Jitendra Kumar Vs. The State of M.P.

Through Video Conferencing Gwalior, Dated:28/06/2021

Shri Sohit Mishra, Counsel for the applicant.

Shri R.K. Awasthi, Counsel for the State.

Case diary is available.

This second application under Section 439 of Cr.P.C. has

been filed for grant of bail. The first application was dismissed as

withdrawn by order dated 26/3/2021 passed in M.Cr.C.

No.14764/2021.

The applicant has been arrested on 14/1/2021 in connection

with Crime No.272/2019 registered at Police Station Dabra Dehat,

Distt. Gwalior for offence under Sections 363, 366-A, 376 (2) (N)

of IPC and Section 5/6 of the POCSO, Act.

The previous application was withdrawn in the light of the

allegations that the date of birth of the prosecutrix is 25/12/2002

and she was minor on 23/10/2019 when she eloped with the

applicant. It is submitted by Shri Mishra that since the prosecutrix

had gone alongwith the applicant on her own, therefore, no case

under Sections 363, 366-A of IPC is made out. The prosecutrix is

carrying the pregnancy of six months and she is willing to reside

with the applicant, therefore, the applicant may be granted bail.

Per contra, the application is vehemently opposed by the 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30367/2021 Jitendra Kumar Vs. The State of M.P.

counsel for the State.

Heard the learned Counsel for the parties.

So far as the kidnapping of the prosecutrix is concerned, it is

clear that on the date of her kidnapping, she was minor. Whether

the prosecutrix had gone out of her own volition or there was any

inducement by the applicant is yet to be decided by the trial court.

The Supreme Court in the case of Anversinh @ Kiransinh

Fatesinh Zala Vs. State of Gujarat in Criminal Appeal No.

1919/2010 decided on 12.01.2021. has held as under:-

"17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused."

So far as the willingness of the prosecutrix to reside with the

applicant is concerned, in view of Section 375 of IPC, if the

prosecutrix is minor, then her willingness or consent is immaterial.

3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.30367/2021 Jitendra Kumar Vs. The State of M.P.

Merely because the prosecutrix has subsequently attained majority

would not wipe out the offence committed by the applicant.

Under these circumstances, no case is made out for grant of

bail. Accordingly, the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.06.29 10:30:43 +05'30'