Sanjay Rawat vs The State Of Madhya Pradesh
2022 Latest Caselaw 3663 MP

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        THE HIGH COURT OF MADHYA PRADESH
                 MCRC No.60320/2021
    (SANJAY RAWAT & ANR. VS. STATE OF M.P. & ANR.)

Gwalior, Dated : 15/03/2022

      Shri Vijay Jha, learned counsel for the applicants.

      Shri A.K.Nirankari, learned counsel for the State.

      Case diary is available.

      This third repeat application under Section 439 of Cr.P.C. has

been filed for grant of bail. Second bail application of the applicant

No.1 Sanjay Rawat was dismissed by order dated 22/07/2021 passed

in MCRC No.35769/2021 and second bail application of the

applicant No.2 Santosh Rawat was dismissed by order dated

22/07/2021

passed in MCRC No.35779/2021.

The applicants have been arrested on 13/01/2021 in connection

with Crime No.453/2020 registered at Police Station Karera, District

Shivpuri for offence under Sections 363, 366 and 376-D of IPC and

Section 5/6 of the POCSO Act.

It is submitted by the counsel for the applicants that the

prosecutrix has turned hostile and she has not supported the

prosecution case. Accordingly, this Court by order dated 04/01/2022

had directed the State counsel to obtain the DNA test report.

The DNA test report has been received, according to which the

DNA profile of applicant No.1 Sanjay Rawat was not found in any of

the incriminating article of the prosecutrix whereas, the DNA profile

of applicant No.2 Santosh Rawat was found in the incriminating

THE HIGH COURT OF MADHYA PRADESH MCRC No.60320/2021 (SANJAY RAWAT & ANR. VS. STATE OF M.P. & ANR.)

articles of the prosecutrix. Accordingly, the counsel for the applicants

seeks permission of this Court to withdraw this application on behalf

of applicant No.2 Santosh Rawat.

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

case of Hemudan Nanbha Gadhvi vs. State of Gujarat, passed on

28.09.2018 in Criminal Appeal No.913/2016, the prayer for

withdrawal of the bail application is hereby allowed and the bail filed

by applicant No.2 Santosh Rawat is dismissed as withdrawn.

So far as the case of applicant No.1 Sanjay Rawat is concerned,

it is submitted by the counsel for the State that it is true that the

prosecutrix has turned hostile and no DNA profile was detected. It is

submitted that the date of birth of the prosecutrix is 12/03/2004 and

the date of incident is 11/08/2020. Thus, it is clear that she was

minor. It is submitted that since, the prosecutrix has not narrated the

truth before the Court, therefore, she is liable to be prosecuted.

Per contra, the counsel for the applicant is vehemently

opposed the prayer made by counsel for the State. It is submitted that

in view of the Section 22 of The Protection of Children from Sexual

Offences Act, 2012 (in short, "the POCSO Act"), the prosecutrix who

according to the prosecution was a minor girl cannot be prosecuted

and she cannot be punished for making false complaint.

Heard the learned counsel for the parties on this issue.

THE HIGH COURT OF MADHYA PRADESH MCRC No.60320/2021 (SANJAY RAWAT & ANR. VS. STATE OF M.P. & ANR.)

Section 22(2) of the POCSO Act reads as under:-

"22(2). Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child."

The contention of the counsel for the State is that the

prosecutrix has not narrated the truth before the Trial Court because

she had turned hostile and in respect of both the accused i.e. Sanjay

Rawat and Santosh Rawat, but in the DNA report the incriminating

articles of the prosecutrix were found containing the DNA profile of

applicant No.2 Santosh Rawat and thus, it is not a case of giving false

information or making false complaint, but it is a case of not

deposing truth before the Trial Court, therefore, she can be

prosecuted, even if she is a minor.

If, the facts of the present case are considered, then it is clear

that in view of the presence of DNA profile of applicant No.2

Santosh Rawat, the prosecutrix had not deposed the truth before the

Trial Court and, therefore, it is not a case of false complaint or giving

a false information. False complaint or false information would

necessarily mean the information given to the police and not the

evidence given by her in the Trial Court.

Under these circumstances, the Trial Court is directed to decide

as to whether the prosecution of the prosecutrix would be desirable or

THE HIGH COURT OF MADHYA PRADESH MCRC No.60320/2021 (SANJAY RAWAT & ANR. VS. STATE OF M.P. & ANR.)

not.

Let this question be addressed at the time of final disposal of

the Trial.

In view of the fact that the prosecutrix has turned hostile qua

the applicant No.1 Sanjay Rawat and without commenting on the

merits of the case, the application is allowed. It is directed that

applicant No.1 Sanjay Rawat 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

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.

Accordingly, the bail application filed by applicant No.1

Sanjay Rawat is allowed.

Certified copy as per rules.

                                                                  (G.S. Ahluwalia)
Pj'S/-                                                                  Judge

          Digitally signed by
          PRINCEE BARAIYA
          Date: 2022.03.15
          17:15:38 -07'00'