Suraj @ Jaiprakash vs The State Of Madhya Pradesh
2022 Latest Caselaw 4519 MP

                                    1
IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                              BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA

                    ON THE 30th OF MARCH, 2022

           MISC. CRIMINAL CASE No. 13623 of 2022

     Between:-
     SURAJ @ JAIPRAKASH S/O GOVERDHAN CHOUHAN , AGED
     ABOUT 26 YEARS, OCCUPATION: PRIVATE JOB VILLAGE
     DASAI (MADHYA PRADESH)
                                                   .....PETITIONER
     (BY SHRI VIVEK SINGH, ADVOCATE )

     AND

   THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
1.
   THROUGH POLICE STATION AMJHERA (MADHYA PRADESH)
2. VICTIM X THROUGH P.S. AMJHERA, (MADHYA PRADESH)
                                                .....RESPONDENTS
     (BY MS. BHARTI LAKKAD, G.A.)
      This M.Cr.C.coming on         this day, the court passed the
following:
                              ORDER

Applicant has filed this third bail application under Section 439 of the Code of Criminal Procedure, 1973. He is in Jail since 11/08/2021 in connection with Crime No. 381/2021 registered at P.S -Amjhera, District- Dhar (M.P.) for commission of offence punishable under Sections 376(2)(n) and 506 of IPC.

As per prosecution story, the prosecutrix lodged a report on 08/08/2021 at police station - Sardarpur to the effect that three years ago, applicant/accused Suraj called her at his home. When she went there, the applicant committed rape upon her. He also got shoot her photographs through mobile-phone and threatened her to kill and to viral her photographs, if the incident is told to anyone. Due to fear of the applicant, the prosecutrix did not tell the incident to anyone, but ten days before lodging of the FIR, the applicant again called her at his home through mobile-phone, but she denied and narrated the entire incident to her brother Subham and other family members. On the basis of the said FIR, the aforementioned offence were registered and arrested the present applicant.

Learned counsel for applicant contended that applicant is innocent and he has been falsely implicated in this offence. He is in custody since 11.8.2021. His earlier two bail applications have been rejected on merit vide orders dated 26.10.2021 and 19.1.2022. But thereafter statement of the prosecutrix was recorded on 25.2.2022 wherein in paragraphs 13, 14, 15 & 16 of cross examination photographs seized by the prosecution during investigation were shown and she has admitted in para 16 that the above said photographs are not obscene or vulgar. The prosecutrix was a consenting party and she was aged about more than 18 years at the time of incident and trial will take a sufficient long time. Hence he prays that in the changed circumstances, applicant be released on

bail.

Per contra, learned counsel for state opposes the bail application and prays for its rejection by submitting that applicant's earlier bail applications were dismissed on merit and she has also stated in her statement before the trial court that applicant has committed rape upon her, therefore, applicant does not deserve for bail.

Perused the case diary, as well as the impugned order and earlier bail orders passed by this Court on merits.

On considering the facts and circumstances of the case, nature and gravity of allegations it reveals that applicant's earlier bail applications have been rejected on merits. Though thereafter prosecutrix has been examined before the trial court but she categorically stated in her statement that applicant has committed rape upon her.

Counsel for applicant has drawn attention of this court to certain paragraphs of statement recorded before the trial court and submitted that prosecutrix has changed her version. But marshalling of prosecution witnesses is not permissible at the stage of consideration of bail as per judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A. No.651/2007) decided on 30.07.2007 wherein it has been held as under:-

"At the stage of granting of bail, the Court can only go into the question of 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."

As per the law laid down by the Hon'ble Supreme Court in Satish Jaggi (supra), this Court can only go into the question of the prima facie case established for granting bail. At the stage of consideration of bail, this Court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution.

In view of the evidence available on record, as above, without commenting upon the merits of the case, at this stage, the present applicant does not deserve for grant of bail.

This third bail application filed by applicant under Section 439 of Cr.P.C. is accordingly dismissed.

Certified copy, as per Rules.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.04.04 12:14:06 +05'30'