Irshad vs The State Of Madhya Pradesh
2023 Latest Caselaw 12595 MP

                                                            1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA
                                                ON THE 4 th OF AUGUST, 2023
                                            CRIMINAL APPEAL No. 8749 of 2023

                           BETWEEN:-
                           IRSHAD S/O IQBAAL SHAH, AGED ABOUT 25 YEARS,
                           OCCUPATION: STUDENT, R/O VILLAGE PANGRI, TAH.
                           SATWAS, DIST. DEWAS (MADHYA PRADESH)

                                                                                        .....APPELLANT
                           (BY MS. SONALI RAJORIA - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH STATION
                                 HOUSE OFFICER THROUGH POLICE STATION
                                 KHATEGAON, DIST. DEWAS (MADHYA PRADESH)

                           2.    PROSECUTRIX THROUGH P.S. KHATEGAON DIST.
                                 DEWAS (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI GAURAV SINGH CHOUHAN - DEPUTY GOVERNMENT
                           ADVOCATE)
                           BY SHRI YASH NAVGIBE - ADVOCATE FOR THE OBJECTOR)

                                 This appeal coming on for admission this day, th e court passed the

                           following:
                                                             ORDER

01. This is fourth Criminal Appeal under Section 14-A (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (herein after referred to as the Act) read with Section 439 of the Code of Criminal Procedure,1973 by the appellant who has been arrested by Police on 26.03.2022 in connection with Crime No.173/2022, registered at Police Station Khategaon, District Dewas concerning offence under Sections 539 of Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 05-08-2023 13:19:06

Information Technology Act (Section - 67/67(A)), 502 of the IPC (Section 506/507/509(B)/376) and 934 of SC and ST Orders (Amendment) Act, 1976 (Section 3(2)(V)(A)/3(1)(W)(II)/3(2)(V)).

02. First appeal of the appellant bearing Criminal Appeal No.4465/2022 was dismissed on merits by order dated 13.06.2022, second appeal bearing Criminal Appeal No.6768/2022 was dismissed as withdrawn by order dated 01.09.2022 and third appeal bearing Criminal Appeal No.11998/2022 was dismissed on merits by order dated 06.02.2023.

03. It is submitted by the learned counsel for the appellant that subsequent to dismissal of the previous appeal, the FSL report in respect of the

mobile phone recovered from the appellant has been received and in that it has not been found that any obscene video or photograph of the prosecutrix were taken by the appellant from it. That is the main allegation levelled against the appellant and since the same has not been found to be proved, the entire case against the appellant is rendered as suspicious. Taking this Court through the statement of the prosecutrix, it is contended that she was always a consenting party and has admitted the said fact in paragraph No.21 of her cross- examination. Reliance has been placed on the decision of this Court in Criminal Appeal No.6530/2021 Tousif Kha Vs. State of M.P. and Others decided on 26.02.2022. On such grounds prayer for grant of bail to the appellant has been made.

04. The aforesaid payer has been opposed by the learned counsel for the respondent/State as well as learned counsel for the objector submitting that in view of the allegations levelled against the appellant, he is not entitled to be released on bail.

05. I have heard the learned counsel for the parties and have perused the Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 05-08-2023 13:19:06

record.

06. The earlier appeals of the appellant have already been dismissed on merits by order dated 13.06.2022 and 06.02.2023. At the time of dismissal of the third appeal, the statement of the prosecution had been taken into consideration and it was observed that the primary allegation is as regards commission of rape by the appellant and it is not a case merely of sending of video and photographs of the prosecutrix by the appellant to her relatives. Thus, merely for the reason that in the FSL report received in respect of the mobile phone of the appellant nothing has been found, it would not make any difference. The judgment in the matter of Tousif Kha (Supra) turned upon its own peculiar fact situation.

07. Thus subsequent to dismissal of the previous appeal of the appellant on merits, I do not find there to be any change in circumstances wanting grant of bail to him. The appeal being devoid of merits is hereby dismissed.

(PRANAY VERMA) JUDGE Shilpa

Signature Not Verified Signed by: SHILPA NAGDEVE Signing time: 05-08-2023 13:19:06