Manish Khatri vs The State Of Madhya Pradesh
2022 Latest Caselaw 6532 MP

                                                                   1
                                          IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                             BEFORE
                                               HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                          ON THE 2nd OF MAY, 2022

                                           MISC. CRIMINAL CASE No. 12020 of 2022

                                 Between:-
                                 MANISH KHATRI S/O MAHESH KUMAR KHATRI ,
                                 AGED ABOUT 31 YEARS, OCCUPATION: NIL 405,
                                 CHHOTI OMTI BELBAGH JABALPUR (MADHYA
                                 PRADESH)

                                                                                                          .....PETITIONER
                                 (BY SHRI UMAKANT SHARMA, SENIOR ADVOCATE WITH SHRI
                                 DEEPAK KOSHTA, ADVOCATE)

                                 AND

                                 THE STATE OF MADHYA PRADESH THROUGH
                                 POLICE STATION MAHILA MADANMAHAL POLICE
                                 STATION MADAN MAHAL (MADHYA PRADESH)

                                                                                                      .....RESPONDENTS
                                 (BY SHRI CHANDRAPAL SINGH PARMAR, GA FOR STATE)

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

Shri Umakant Sharma, learned senior counsel with Shri Deepak Koshta, learned counsel for the applicant.

Shri Chandrapal Singh, learned G.A for the respondent/State

This is first bail application filed by the applicant/Manish Khatri under Section 438 of Cr.P.C for grant of anticipatory bail, who is apprehending his arrest in connection with Crime No.16/2022 registered at Police Station-Mahila (Madan Mahal), District Jabalpur (MP) for offences punishable under Sections 376(2)(n), 294 of IPC.

Learned counsel for the applicant submits that prosecutrix is known to the applicant since 2015. Applicant was working in Shriram Finance Company since 2015 and was posted at Satna. He had taken house of father of the prosecutrix on rent. There was acquittance between the prosecutrix and present applicant. It is submitted that consensual relationship is being forced on the applicant, through coercive tactics.

Learned counsel for the applicant further submits that applicant had given an application to the Signature SAN Not Verified Superintendent of Police, Jabalpur apprehending some action in the hands of the prosecutrix, which is Digitally signed by TARUN KUMAR available on record as Annexure A/2, therefore some indulgence be shown. It is also submitted that if SALUNKE Date: 2022.05.06 10:39:22 IST

applicant is given benefit of anticipatory bail, then applicant is willing to consider aspect of marriage with the prosecutrix. Reliance is placed on para 23 of the judgment of the Supreme Court in case of Uday Vs. State of Karnataka, AIR 2003 SC 1639 and also law laid down by the Supreme Court in case of Deepak Gulati Vs. State of Haryana, AIR 2013 SC 2071, wherein in para 18 to 21 distinction between rape and consensual sex is explained. That if the intercourse is under promise to

marry will constitute the rape only if from initial stage accused had no intention to keep promise. Reliance is also placed on order of a coordinate Bench in M.Cr.C No. 37290/2020 (Gourabh Meshram Vs. State of M.P) decided on 20/10/2020. It is submitted that there is delay of 7 years in lodging of FIR and prayed that benefit of anticipatory bail be given to the applicant.

It is submitted that applicant had all the intention of marrying the prosecutrix, but she belongs to other backward caste, therefore family of the applicant has reservations to the marriage.

Learned G.A for the State opposes the prayer made by learned counsel for the applicant and submits that report Annexure A/2, has been made by the applicant a day after lodging of FIR on 16/02/2022. It is submitted that there is serious objection on behalf of the objector, who has enclosed photographs showing applicant putting vermilion in the hair parting of the complainant, which is an important Hindu ceremony signifying marriage.

Taking into consideration submissions of learned counsel for the parties and law in case of Uday vs State Of Karnataka (supra), wherein it is held that a false promise is not a fact within meaning of Penal Code and the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. This is a matter of trial and at this pre trial stage/pre investigation stage reliance on the ratio of law laid down in case of Uday Vs. State of Karnataka (supra) appears to be misplaced. Further the facts in M.Cr.C No. 37290/2020 (Gourabh Meshram Vs. State of M.P) decided on 20/10/2020 are different to that of present case, wherein affidavit was submitted that applicant wants to marry the prosecutrix.

In case of Aparna Bhat & others vs The State Of Madhya Pradesh & others (2021) SCC Online 230, Hon’ble Supreme Court has quoted Henrik Ibsen; “A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.â€​.

Social change is a process by itself, celebrated sociologist M.N. Sriniwas and Radha Kamal Mukerjee in reference to Modern Caste has argued in favour of the proposition that though change brings about modification and alterations, it is never a barrier between the old and new. Change is not a separating wall between the old order and the new order. Rather, the process of change is the intermediate continuity between the old social order and new social order. Change does not break and destroy the old structure. Through change, the old structure only gets transformed to suit to the new conditions of living.

Thus when social theories on change are examined in the context of constitutional goals and ideals then it is evident that applicant all through had knowledge about the caste of the complainant. He had awareness that despite getting modern education, his caste affiliations will not permit him to fulfill his promise of marriage on the presumption of which he sought physical favours. Thus when a more inclusive approach over a gender bias perception is applied, then giving due weight to Indian social customs, traditions and limitations, so to say, which embraces a feminine gender, it cannot be said that consent of the complainant was a voluntary consent.

Prior knowledge of caste of the prosecutrix and awareness of ritualistic dogmas of applicant’s own family differentiates the law laid down in case of Uday (supra).

Applicant’s failure to accept change in the name of rigidities of caste, cannot be termed to be sufficient to obtain a voluntary consent of the complainant, requiring upholding of slogan “bail and not jailâ€​.

In view of the above, the application fails and is dismissed.

(VIVEK AGARWAL) JUDGE tarun