Mohammad Asif Khan vs The State Of Madhya Pradesh
2022 Latest Caselaw 16020 MP

                                                                1
                           IN       THE     HIGH          COURT OF MADHYA                           PRADESH
                                                           AT JABALPUR
                                                      BEFORE
                                    HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                                ON THE 5 th OF DECEMBER, 2022
                                           MISC. CRIMINAL CASE No. 48976 of 2022

                           BETWEEN:-
                           MOHAMMAD ASIF KHAN, S/O ABDUL JABBAR KHAN,
                           AGED ABOUT 22 YEARS, OCCUPATION: LABOUR, R/O:
                           VILLAGE SINGHANPURI, POST HEERAPUR KODIYA, P.S.
                           N.K.J. ROSHAN NAGAR, N.K.J. KATNI (MADHYA
                           PRADESH)

                                                                                                  .....PETITIONER
                           (BY SHRI SUSHIL KUMAR TIWARI - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH P.S.
                           MADHAV NAGAR, KATNI, DISTRICT-KATNI (MADHYA
                           PRADESH)

                                                                                              .....RESPONDENT
                           (BY SHRI AKSHAY NAMDEO - GOVERNMENT ADVOCATE AND SHRI
                           VISHNU KUMAR PATEL - ADVOCATE FOR OBJECTOR)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                                 ORDER

This sixth bail application under Section 439 of the Cr.P.C has been filed on behalf of the applicant for grant of bail pending trial.

2. His five earlier bail applications have already been dismissed as withdrawn vide order dated 09.09.2019, passed in Cr.A.No.6668/2019, order dated 31.08.2022, passed in Cr.A.No.1560/2022, order dated 09.07.2021, passed in Cr.A.No.704/2021, order dated 31.01.2022, passed in Cr.A.No.8035/2021 and order dated 08.03.2022, passed in Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 12/6/2022 11:00:24 AM

M.Cr.C.No.6790/2022.

3. The applicant is in custody since 18.07.2019 in connection with Crime No.540/2019, registered at P.S.-Madhav Nagar, District- Katni (M.P.) for the offence punishable under Section 376(2)(F), 506 of IPC and Section 3/4 of POCSO Act and Section 3(1)(w)(i) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989.

4. As per prosecution story on 16.07.2019 minor prosecutrix lodged an

FIR stating that she is a student of class 12th. On 02.07.2019, Asif Khan, resident of Roshan Nagar met her near a bridge and forcibly took her on motorcycle to a dilapidated house and committed rape/aggravated penetrative

sexual assault upon her and threatened to do her death. She being scared of death threat did not disclose the incident to anyone at house, but narrated the entire story to her friend, who communicated the entire incident to school teacher and when when school teacher asked her about the incident, she disclosed everything to her. Today she has come to report the matter. FIR was registered. After investigation, charge sheet was filed and applicant is facing Special Case No.71/2019 (State of M.P. Vs. Mohd. Ashif) for commission of aforesaid offence before Special Judge, POCSO Act, Katni.

5. As per learned counsel for the applicant, applicant has not committed any offence. He is innocent. He has been falsely implicated. Learned counsel for the applicant has submitted that applicant is in jail for last more than 2 years and trial has not been concluded so far despite the direction of this Court to conclude the trial within a period of 6 months. Therefore, placing reliance upon the case law of Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012)1 SCC 40, it is submitted that liberty of the applicant is most precious and important and one should not be denied bail only on the basis that Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 12/6/2022 11:00:24 AM

he is facing trial for some serious offence. Learned counsel further citing the evidence of the witnesses examined before the trial Court has vehemently contended that there was chat between the prosecutrix and applicant. They had developed liking for each other. Hence, it has been prayed that considering the evidence of all witnesses on record and the fact that there was exchange of some sms and chat on whatsapp between the prosecutrix and accused including the evidence of the prosecutrix before the trial Court applicant be released on bail, as applicant cannot be kept in jail for an indefinite period.

6. On the other hand, learned counsel for the objector as well as learned Government Advocate has opposed the grant of bail to the applicant and has submitted that prosecutrix in her testimony before the trial Court has clearly deposed about commission of offence by the applicant. It is further submitted that almost all the prosecution witnesses have already been examined before the trial Court except investigating officer of the case. So there is no likelihood of the delay in conclusion of the trial. Offences are of serious nature. Therefore, it has been prayed that applicant/accused be not released on bail.

7. I have heard learned counsel for the parties and have perused the material available in the case diary furnished by the learned counsel for the applicant.

8. It is undisputed that prosecutrix at the time of commission of offence

was below 17 years of age. It is also undisputed that almost all the witnesses have already been examined before the trial Court except the investigation officer. This Court has called status report from the trial Court and a perusal of the same makes the things evident. Thus, it can easily be inferred that there is no likelihood of delay in conclusion of the trial.

Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 12/6/2022 11:00:24 AM

9. So far as the case law relied upon by the learned counsel for the applicant is concerned, undoubtedly the liberty of the citizens is important and Courts are expected to protect their liberty, but at the same time it cannot be overlooked that the accused who have committed serious offences and are facing trial for commission of heinous offences, particularly offences under the POCSO Act where a minor girl had been subjected to rape/aggravated penetrative sexual assault. In such circumstances, merely on the basis of the delay in trial applicant cannot be released on bail as courts are custodian of the rights of every citizen including the victim/prosecutrix. Therefore, so far as the judgment of Sanjay Chandra (supra) is concerned, that has no application in the facts of the present case. In that case Sanjay Chandra was implicated in the offence on the basis of criminal conspiracy with other co-accused in allocation of the licences and spectrum, whereas the present case is a case of aggravated penetrative sexual assault upon a minor girl.

10. On perusal of the evidence of the prosecutrix tendered before the trial Court and as read by the learned counsel for the objector and by learned Government Advocate, it is apparent that she has supported prosecutrix story before the trial Court.

11. While considering considering the bail application, High Court is required only to consider the prima-facie case and not required to appreciate and evaluate the evidence of the witnesses as recorded by the trial Court as it is for the trial Court to appreciate and evaluate the truthfulness of the evidence of the prosecution witnesses.

12. In the case of Satish Jaggi Vs State Of Chattisgarh & Orthers, (2007) 11 SCC 195 while dealing with the same argument as advanced by the

Signature Not Verified learned counsel, Apex Court has held as under:- Signed by: JASLEEN SINGH SALUJA Signing time: 12/6/2022 11:00:24 AM

"12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial. "

13. In the case on hand, there is a clear prima-facie case and there is specific version of the minor. Therefore, having taken into consideration the seriousness of the offence, severity of the punishment in case allegations are found proved beyond reasonable doubt. This Court is not inclined to release him on bail.

14. Therefore, this 6th bail application under Section 439 of the Cr.P.C filed on behalf of the applicant - Mohd. Asif is dismissed

DINESH KUMAR PALIWAL) JUDGE Jasleen

Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 12/6/2022 11:00:24 AM