Pankaj Upadhyay vs The State Of Madhya Pradesh
2021 Latest Caselaw 7175 MP

THE HIGH COURT OF MADHYA PRADESH MCRC-49467-2021 Pankaj Upadhyay Vs. State of MP

Gwalior, Dated: 09-11-2021

Shri Yash Saxena, Counsel for the applicant.

Shri A.K. Nirankari, Counsel for the State.

Case Diary is available.

This second application under Section 439 of CrPC has been

filed for grant of bail.

The applicant has been arrested on 27.12.2020 in connection

with Crime No.895/2020 registered at Police Station Ambah Distt.

Morena for offence under Sections 376, 366, 363, 365, 342 of IPC.

It is submitted by the counsel for the applicant that the

prosecutrix has been examined and she has not supported the

prosecution case. The Trial is likely to take sufficiently long time and

there is no possibility of his absconding or tampering with the

prosecution case.

Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that in the light of judgment

passed by the Supreme Court in the case of Hemudan Nanbha

Gadhvi Vs. State of Gujarat reported in (2019) 17 SCC 523, a

person can be convicted with the help of circumstantial and scientific

evidence and the DNA/FSL report has not been received so far.

Heard the learned counsel for the parties.

THE HIGH COURT OF MADHYA PRADESH MCRC-49467-2021 Pankaj Upadhyay Vs. State of MP

By order dated 05.10.2021 State counsel was directed to

requisition the FSL/DNA test report. Thereafter, on 23.10.2021 also

one more opportunity was granted. However, today also counsel for

the State is not in a position to produce the FSL/DNA test report. It is

submitted by Shri Nirankari that as per the report received from

RFSL, Sagar, the consumables and kit, which is required for

conducting DNA test is not available, therefore, it would take time.

So far as the question of non-availability of consumables and

necessary kit for conducting the DNA test is concerned, it is the duty

of the State Government to ensure that the consumables and the kits

are made available to the RFSL, Sagar without any default. Thus, the

non-availability of consumables and kit, which is necessary for

conducting the DNA test cannot be said to be a fault on the part of

the applicant and, therefore, he cannot be allowed to remain in jail

specifically when the prosecutrix has turned hostile.

Considering the facts and circumstances of the case and

without commenting on the merits of the case, the application is

allowed. It is directed that the applicant be released on bail on

furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One

Lac) with one surety in the like amount to the satisfaction of the Trial

Court/Committal Court to appear before the Court on the dates given

THE HIGH COURT OF MADHYA PRADESH MCRC-49467-2021 Pankaj Upadhyay Vs. State of MP

by the concerned Court.

This order shall remain effective till the end of trial but in case

of bail jump, it shall become ineffective.

In the light of the judgment passed by the Supreme Court in

the case of Aparna Bhat and others Vs. State of M.P. Passed on

18.03.2021 in Criminal Appeal No. 329/2021, the intimation

regarding grant of bail be sent to the complainant.

Certified copy as per rules.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.11.09 17:22:57 +05'30'