Madhya Pradesh High Court
Ghanshyam Sen vs The State Of Madhya Pradesh on 3 February, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 3rd OF FEBRUARY, 2022
MISC. CRIMINAL CASE No. 56044 of 2021
Between:-
GHANSHYAM SEN S/O SHRI BAIJNATH SEN ,
AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURIST NEAR ARVIND SCHOOL
GAHRANAALA REWA ROAD RAGHURAJ
NAGAR DIST. SATNA MP (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANISH DATT, SENIOR ADVOCATE WITH SHRI
MAYANK SHARMA)
AND
THE STATE OF MADHYA PRADESH THR. P.S.
P.S. KOLGAWAN DIST. SATNA MP (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AMIT PANDEY, PANEL LAWYER AND SHRI PUSP RAJ
SINGH GAHARWAR, ADVOCATE FOR THE OBJECTOR)
(Heard through Video Conferencing)
This application coming on for admission this day, the court passed
the following:
ORDER
This is the first bail application under Section 438 of Cr.P.C by the
applicant. He is apprehending his arrest in connection with Crime
No.1069/2021, registered at Police Station Kolgawan, District Satna (M.P.) in
relation to the offence punishable under Sections 376 (2) (cha), 294, 323/34
and 506 of IPC.
It is submitted that the applicant is father-in-law of the complainant
aged about 60 years and has falsely been roped up in the case. It is argued
that the allegation against the present applicant is that on 05.06.2021 at about
11:00 PM when the prosecutrix was sleeping in her room at Kolgawan,
District Satna, applicant entered the room and has forcefully committed
sexual intercourse with the prosecutrix and has also abused, assaulted and
Signature Not Verified
SAN threatened the prosecutrix . The husband of the prosecutrix, at the time of the
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Date: 2022.02.05 13:41:30 IST
incident was at Bopal; therefore, no complaint was made initially and when
the matter was reported to the husband and other family members, they have
forced her to remain quite. It is submitted that for the first time, the First
Information Report was lodged on 11.09.2021 after a long span of three
months after deliberations and considerations. It is argued that the prosecutrix
as well as the son of the present applicant being her husband were not in
good terms; therefore, her husband has filed an application under Section 13
of the Hindu Marriage Act seeking divorce which was filed on 20.07.2021 and
notices were also issued. The prosecutrix has filed applications before the
police authorities on 24.07.2021 and on earlier occasion i.e. on 12.07.2021 at
Police Station Awadpuri, District Bhopal but no allegations with respect to
rape being committed by the present applicant were made in those
applications. Even the proceedings of mediation took place before the police
authorities in pursuance to the complaint but even in the mediation
proceedings there was no utterance of commission of rape by the present
applicant and the explanation which has been give by the prosecutrix for
lodging the complaint is also not acceptable. It is submitted that the assurance
was given by the husband that he will settle all the issues but the fact remains
that the divorce petition was filed by the husband of which the notices were
already received by the prosecutrix but despite of the same, she has kept
mum. The prosecutrix has also made a complaint to the police authorities on
10.07.2021 and on the basis of which NCR under Section 155 of the Cr.P.C.
was registered. Even in that complaint there was no utterance of sexual
physical assault by the present applicant is reflected.
It is argued that as the husband has also preferred a divorce petition;
therefore, with an intention to take revenge, false complaint has been made
against father-in-law and other family members. All other family members
have already been enlarged on bail. It is submitted that the complainant has
argued that in the year 2017 an attempt for sexual assault was made but there
is no complaint regarding the same. It is pointed out by the counsel appearing
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SAN
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Date: 2022.02.05 13:41:30 IST
for the applicant that the miscellaneous case being MCC No.1344/2021 was
also filed on 26.09.2021 before this court seeking transfer of the case pending
before the Family Court under Section 13 of the Hindu Marriage Act;
wherein, it is pointed out that the notices under Section 13 of the Hindu
Marriage Act was received on 27.07.2021. In such circumstances, looking to
the age of the applicant and he being the senior citizen, prays for grant of
anticipatory bail. He is ready to abide by all the terms and conditions that may
be imposed by this Court while granting anticipatory bail. On these grounds,
he prays for granting anticipatory bail to the applicant.
Per contra, counsel appearing for the State as well as the complainant
have vehemently opposed the application stating that there are specific
allegations made by the prosecutrix in her statement as well as in the
complaint. It is argued that an explanation has been given with respect to
delay in lodging of the FIR to the police authorities and she has explained in
detailed regarding why she was not in a position to lodge the complaint on
earlier occasion but the fact remains that on earlier occasion she has
approached the police authorities and has also filed certain complaint on
which mediation proceedings have also taken place and there is no utterance
of commission of offence under Section 376 of the IPC by the present
applicant in those applications. It is further pointed out that the proceedings
under Section 82 of the Cr.P.C. has been drawn up against the present
applicant by the concerned Court and an application under Section 438 of the
Cr.P.C. is not maintainable in view of the judgment passed by the Supreme
Court in Criminal Appeal No.12092/2021 wherein earlier judgment passed
in the case of State of M.P. vs. Pradeep Sharma reported in 2014 (2)
SCC 171 has been considered; therefore, they have prayed for dismissal of
the application. As far as maintainability of the application under Section 438
of the Cr.P.C. is concerned, the proceedings under Section 82 of the Cr.P.C.
has been drawn up subsequently and the bail application was filed seeking
anticipatory bail before the trial court on 04.10.2021 and after rejection, the
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Date: 2022.02.05 13:41:30 IST
same has been filed on 11.11.2021 and the proceedings under Section 82 of
the Cr.P.C. has been drawn on 15.11.2021 i.e. after filing of the applications.
In such circumstances, it cannot be said that the applicant was absconding.
Even this court in the case of Akhilesh Sharma Vs. State of M.P. passed
in M.Cr.C.No.49099/2021 vide order dated 04.01.2022 has considered the
aforesaid aspect of maintainability of Section 438 of the Cr.P.C. in the cases
of maintainability of Section 438 of the Cr.P.C., when the proceedings under
Section 438 of the Cr.P.C. has been drawn up and has been held to be
maintainable placing reliance upon the certain Hon'ble Supreme Court
judgments.
Heard the learned counsel for the parties and perused the case diary.
Considering the over all facts and circumstances of the case, without
commenting upon the merits of the case, this Court deems it appropriate to
allow this application for grant of anticipatory bail. In the event of arrest, the
applicant will co-operate in the investigation and will not disobey any of the
terms and conditions enumerated under Section 438 of the Cr.P.C. in
deviation or violation of any of the proceedings under Section 438 of the
Cr.P.C. The relief which has been extended will stand rejected automatically
and is directed to be released on bail on furnishing a surety bond in the sum
of Rs.50,000/- (Rupees Fifty thousand only) with one local solvent surety
in the like amount to the satisfaction of Arresting Officer.
The applicant is directed to mark his presence before the concerning
Police Station in first week of every month and is directed to cooperate in
investigation. In case of failure to cooperate, the bail granted by this Court
shall stand rejected automatically.
This order will remain operative subject to compliance of the following
conditions by the applicant :-
1. The applicant/s will comply with all the terms and conditions of the
bond executed by him;
2. The applicant/s will cooperate in the investigation/trial, as the case
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may be;
3 . The applicant/s will not indulge himself/themselves in extending
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade them/her/him from disclosing such facts to the Court
or to the Police Officer, as the case may be;
4. The applicant/s shall not involve any other offence, in case the
applicant/s indulge in any other criminal case the benefit of bail as extended
by this Court shall automatically cancelled.
5. The applicant/s will not seek unnecessary adjournments during the
trial;
6. The applicant/s will not leave India without previous permission of
the trial Court/Investigating Officer, as the case may be.
7. The applicant/s will inform the concerned S.H.O. of concerned
Police Station about his residential address in the said area and it would be
the duty of the Public Prosecutor to send E-copy of this order to SHO of
concerned police station as well as Superintendent of Police concerned who
shall inform the concerned SHO regarding the same.
Application stands allowed and disposed of.
E-copy of this order be provided to the applicant and E-copy of this
order be sent to the trial Court concerned for compliance. It is made clear
that E-copy of this order shall be treated as certified copy for practical
purposes in respect of this order.
Certified copy as per rules.
(VISHAL MISHRA)
JUDGE
Sha
Signature Not Verified
SAN
Digitally signed by SHALINI LANDGE
Date: 2022.02.05 13:41:30 IST
