Dr. Abhishek Shivhare vs The State Of Madhya Pradesh
2021 Latest Caselaw 6123 MP

                                                          1                               CRA-4193-2021
                                The High Court Of Madhya Pradesh
                                           CRA-4193-2021
                                (DR. ABHISHEK SHIVHARE Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                      Jabalpur, Dated : 28-09-2021
                               Heard through Video Conferencing.

                               Shri Sankalp Kochar, learned counsel for the appellant.
                               Shri Akhilendra Singh, learned Govt. Advocate for respondent No.1/

State.

Ms. Sandhya Devi Rajak, learned counsel for respondent

No.2/objector.

Heard on I.As No.14136/2021, 14939/2021, 17217/2021, which are the applications for taking the documents on record.

Since there is no objection from the other side, therefore, the aforesaid IAs. are allowed and the documents are taken on record.

Case diary is available with the Panel Lawyer. With consent, heard finally.

This is an appeal filed under Section 14-A of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for grant of bail to the

appellant, as he is apprehending of his arrest in connection with Crime No.851/2021, registered at Police Station CKolar Road, Bhopal, District Bhopal (MP) for commission of offence punishable under Sections 376, 376(2)(n) of IPC and also under Sections 3(1)(w)(i) and 3(2)(v) of Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

This appeal is directed against the order dated 09/07/2021 passed by the Special Judge, SC/ST Act, Bhopal in B.A. No.2087/2021 Prosecution story, in brief, is that appellant and prosecutrix are known to each-other and they were in touch with since 2016. The appellant, knowing the fact that prosecutrix is a member of SC/ST community on the false pretext of marriage, forced the prosecutrix to establish physical relations with him on 22/3/2019 and after that he sexually exploited her. Signature Not SAN Verified Learned counsel for the appellant submits that the appellant is a BHMS Digitally signed by TULSA SINGH Date: 2021.09.29 10:16:17 IST 2 CRA-4193-2021 doctor and prosecutrix was also pursuing BHMS and both were having love- affairs with each-other. On 19/01/2019 appellant met with serious accident in which he had received serious injuries on his person including very vital organs of his body and remained in medical supervision from 19/01/2019 to 01/02/2019 where he was diagnosed with rupture urethra and hematuria with

acute urinary retention. A friend of the appellant lodged FIR against bus driver which was involved in the above accident. The appellant remained bed ridden for about six months, therefore, the allegation about committing rape with the prosecutrix on 22/3/2019 is apparently unbelievable and false. Learned counsel for the appellant further submits that prosecutrix herself continuously harassing the appellant and pressurizing him to marry for last two years and when the appellant refused to marry, she started threatening him by stating that she would lodge false FIR against him. The appellant made representation dated 11/06/2021 to the Superintendent of Police in this regard. Prosecutrix thereafter lodged a false and fabricated FIR against the appellant on 21/06/2021 which is hopelessly delayed without any reasonable cause. Learned counsel for the appellant has placed heavy reliance upon the judgments of Hon'ble Supreme Court in the cases of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, (2019) 9 SCC 608, Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675, Hitesh Verma Vs. State of Uttarakhand and another, (2020)10 SCC 710, Prashant Bharti Vs. State (NCT) of Delhi, (2013) 9 SCC 293. Learned counsel has also placed reliance upon the judgments of this Court passed in Cr.A. No5838/2020 (Anil Patel & others Vs. State of M.P. and others), Cr.A. No.2062/2018 (Yogesh Pawar Vs. State of M.P. and another), Cr.A. No.4230/2021 (Narendra Pandey Vs. The State of M.P. and others) and M.Cr.C. No.48480/2018 (Udaypal Singh Vs. State of M.P. and another). As no case under the provisions of SC/ST Act is made out against the appellant and he has been falsely implicated in the matter,

Signature Not therefore, he may be enlarged on anticipatory bail. SAN Verified

Digitally signed by TULSA SINGH Date: 2021.09.29 10:16:17 IST 3 CRA-4193-2021 Learned counsel for the respondent/ State as well as learned counsel for the objector vehemently oppose the bail application and submit that there is nothing on record on the basis of which it can be said that on 22/3/2019 appellant was unable to commit sexual intercourse with prosecutrix. The appellant, on the false pretext of marriage, sexually exploited her for last more than three years. The offences alleged against the appellant are of serious in nature, therefore, he is not entitled for the benefit of anticipatory bail.

Having considered the rival submissions of learned counsel for the parties and the material placed on record specially the medical report dated 29/06/2021 of appellant in which it is mentioned that he got spine and other injuries on the vital organ of his body and was advised bed rest for four

months with regular follow up, also perusing the FIR dated 19/01/2019 bearing Crime No.41/2019 registered at Police Station Kamla Nagar, Bhopal with regard to the accident of the appellant and other documents, prima facie, it is found that the appellant was not physically fit, on the date of incident, to commit rape with the prosecutrix. It is not disputed that the appellant and prosecutrix, both, were pursuing BHMS and were known to each-other and having affairs, prima facie, the offences alleged under SC/ST Act against the appellant seems also not to be made out. Therefore, considering the law laid down in the above judgments pronounced by Hon'ble Apex Court as well as by this Court cited by learned counsel for the appellant, this Court is of the view that the appellant is entitled for the benefit of anticipatory bail. Under these circumstances, this appeal is allowed and the impugned order passed by the Special Court is hereby set aside.

It is directed that in the event of arrest or surrender of the appellant before Arresting Authority/Investigating Officer in relation to aforementioned crime number, he shall be enlarged on anticipatory bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty thousand Only) with one solvent surety in the like amount to the satisfaction of the Arresting

Signature Not Authority/Investigating Officer.

SAN Verified

Digitally signed by TULSA SINGH Date: 2021.09.29 10:16:17 IST 4 CRA-4193-2021 The appellant shall made himself available for interrogation before the Investigating Officer as and when required and will cooperate in the investigation. He shall further abide by the conditions enumerated in sub- section (2) of Section 438 of the Code of Criminal Procedure.

It is made clear that the observations made in this order shall not affect the further proceeding of the Court below.

This Appeal stands allowed and disposed of.

C. C. as per rules.

                                                                   (SATYENDRA KUMAR SINGH)
                                                                            JUDGE


                      ts




Signature
 SAN      Not
Verified

Digitally signed by
TULSA SINGH
Date: 2021.09.29
10:16:17 IST