Sanjay Barasiya vs The State Of Madhya Pradesh
2022 Latest Caselaw 6626 MP

                                                                            1
                                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                                  AT JABALPUR
                                                                          BEFORE
                                                            HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                      ON THE 4th OF MAY, 2022

                                                         MISC. CRIMINAL CASE No. 19362 of 2022

                                                Between:-
                                                SANJAY BARASIYA S/O SHRI LALA PRASAD
                                                BARASIYA   ,  AGED     ABOUT   29    YEARS,
                                                OCCUPATION: PRISON GUARD (GOVT. SERVANT)
                                                VILLAGE TABERA TEHSIL UMRETH DISTRICT-
                                                CHHINDWARA, M.P. AT PRESENT UPJAIL
                                                PREMISES, NUPJAIL PIPARIYA TEHSIL PIPARIYA,
                                                DISTRICT- HOSHANGABAD, M.P. (MADHYA
                                                PRADESH)

                                                                                                           .....APPLICANT
                                                (BY SHRI VIKASH CHOUKSEY, ADVOCATE)

                                                AND

                                                THE STATE OF MADHYA PRADESH THROUGH
                                                POLICE STATION STATION ROAD PIPARIYA
                                                DISTRICT- HOSHANGABAD, M.P. (MADHYA
                                                PRADESH)

                                                                                                        .....RESPONDENT
                                                (BY SHRI ALOK AGNIHOTRI, DEPUTY GOVERNMENT ADVOCATE)

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

                                       following:
                                                                             ORDER

Heard on I.A.No.7757/2022 an application for assisting the State counsel. For the reasons mentioned in the application, the same is allowed. Shri Vikas Jyotshi, Advocate is permitted to assist the State counsel. This is the first bail application under Section 439 of Cr.P.C filed by the applicant for grant of bail.

The applicant has been arrested by Police Station-Station Road, Pipariya, District Hoshangabad (M.P.) in connection with Crime No.95/2022 for the offence punishable under Sections 376 (2)(n) & 506 of the Indian Penal Code.

It is pointed out that he has been falsely implicated in the case and has not committed any offence in any manner. It is submitted that the applicant and Signature Not Verified SAN prosecutrix were known to each other and as such they perform engagement; Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.05.05 10:03:11 IST thereafter, they were residing happily as husband-wife and have made physical

relations. The photographs of engagement is also filed along with the application. The prosecutrix is a major lady, aged about 24 years. The applicant has also filed an application before Pariwar Paramarsh Kendra, which is reflected from page 30 of the application. He has also filed an application under Section 9 of the Hindu

Marriage Act for restitution of conjugal rights. The allegation against the applicant is that when he refused to marry with the prosecutrix, then such complainant was made regarding commission of offence under Section 376 of IPC. He has placed reliance upon the judgment passed by the Supreme Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra (Criminal Appeal No.1165/2019) decided on 21.08.2019 wherein in almost similar terms Hon'ble Supreme Court has held that in such circumstances, the physical relationship which has been made does not amount to commission of offence under Section 376 of I.P.C. The determining factor is whether the consent has been given under misconception of fact or under the false and fraudulent promise of marriage. The aforesaid aspect was further considered in the case of Maheshwar Tigga Vs. State of Jharkhand reported in (2020) 10 SCC 108 and similar view was taken in the case of Prashant Bharti Vs. State (N.C.T. of Delhi) reported in (2013) 9 SCC 293, wherein Hon'ble Supreme Court has gone to the extent that in the case of a married woman, if a physical relation is being made on the false promise of marriage, no case under Section 376 of I.P.C. is made out. There is no further requirement of custodial interrogation of the applicant in the matter. The applicant is a first offender. He is ready to abide by all the terms and conditions that may be imposed by this Court while considering his application for grant of bail. On these grounds, he has prayed for grant of bail to the applicant.

P e r contra, State counsel as well as counsel for the objector have vehemently opposed the application stating that there are specific allegations against the present applicant. In her statement recorded under Section 164 of Cr.P.C., the prosecutrix has supported the prosecution story and when the applicant refused for marriage then the prosecutrix lodged the FIR. Investigation is

Signature Not Verified still pending in the matter but he could not dispute the fact that the prosecutrix is a SAN

Digitally signed by TAJAMMUL HUSSAIN major, aged about 24 years and the applicant is the first offender is also not KHAN Date: 2022.05.05 10:03:11 IST

disputed by the State counsel.

Considering the over all facts and circumstances of the case and without commenting upon the merits of the case, this application is allowed, subject to verification of the fact that the applicant is a first offender. The applicant is directed to be released on bail on furnishing surety bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one local surety in the like amount to the satisfaction of trial Court.

This order will remain operative subject to compliance of the following conditions by the applicant :-

1. The applicant will comply with all the terms and conditions of the bond executed by him;

2. The applicant will cooperate in the investigation/trial, as the case may be;

3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police Officer, as the case may be;

4. The applicant shall not involve in any other offence, in case the applicant indulge in any other criminal case the benefit of bail as extended by this Court shall automatically cancelled;

5. The applicant will not seek unnecessary adjournments during the trial;

6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be;

7. If the applicant is found involved in any case except present one, his bail shall stand rejected without any reference to the Court; and 8 . The applicant 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.

I n view of the COVID-19, jail authorities are directed to follow Covid Protocol and Guidelines before releasing the applicant on bail. Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.05.05 10:03:11 IST Application stands allowed and disposed of.

Certified copy as per rules.

(VISHAL MISHRA) JUDGE taj

Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.05.05 10:03:11 IST