Arbaz Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 6794 MP

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                                 ON THE 26 th OF APRIL, 2023
                                         MISC. CRIMINAL CASE No. 10600 of 2023

                          BETWEEN:-
                          ARBAZ KHAN S/O RAJU KHAN, AGED ABOUT 22 YEARS,
                          OCCUPATION: LABOR R/O VILLAGE SANJEET TEHSIL
                          MALHARGARH      DISTT. MANDSAUR      (MADHYA
                          PRADESH)

                                                                                            .....APPLICANT
                          (BY SHRI HIMANSHU THAKUR - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH STATION HOUSE
                          OFFICER THROUGH POLICE STATION NARAYANGARH
                          DISTT. MANDSAUR (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                          (SHRI HEMANT SHARMA - GOVERNMENT ADVOCATE)

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

This is the third repeated application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail relating to Crime No.64/2022 registered at Police Station Narayangarh, District Mandsaur (M.P.) for the offence under Sections 365, 366, 376(2)(N) of the Indian Penal Code, 1860 and Section 3 and 5 of the Madhya Pradesh Freedom of Religion Act, 2021. The applicant is in custody since 01/03/2023.

Learned counsel for the applicant submits that after rejection of the earlier bail application, trial Court has framed charges, but no charges under Section 3 Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 4/27/2023 10:34:14 AM

and 5 of the Madhya Pradesh Freedom of Religion Act, 2021 has been framed against the applicant. Statement of prosecutrix (PW-1), her father (PW-2), her mother (PW-3), Hanuman (PW-4), Dr. Sunil Kumawat (PW-5), Head Constable Vikrant Jadhav (PW-6), Sangram Singh (PW-7) and Sudharshan Lodha (PW-8) have been examined before the trial Court. Prosecutrix was major at the time of incidence. As per her statement, she went with the present applicant on motorcycle to Ajmer Sharif and they stayed in a Hotel, but she did not raise any alarm during the travelling to different places or during the stay at Hotel. She was a consenting party. Material witnesses have been examined, but final conclusion of the trial is likely to take sufficient long time. Hence, he prayed that

applicant be enlarged on bail.

Per contra, learned counsel for the respondent / State opposes the bail application and prays for its rejection.

Perused the impugned order of the trial Court as well as the case diary. After considering all the facts and circumstances of the case, nature and gravity of offence, arguments advanced by the learned counsel for the applicant and also taking note of the fact that earlier bail application of applicant was dismissed on merit vide order dated 20/06/2022 passed in M.Cr.C.No.26648/2022 and after rejecting the earlier application prosecutrix, her mother father and other witnesses have been examined before the trial Court. Including the prosecutrix all the witnesses have deposed against the present applicant regarding the aforesaid crime of abduction and rape upon the prosecutrix.

At the stage of consideration of bail, marshalling of the prosecution witnesses is not permissible as per the judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 4/27/2023 10:34:14 AM

(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.â€​

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 above, without commenting upon the merits of the case, at this stage, this Court is not inclined to grant bail to the present applicant. Accordingly, the third repeat bail application preferred under Section 439 of Cr.P.C. is hereby rejected.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 4/27/2023 10:34:14 AM