Madhya Pradesh High Court
Swapnil Sachdeva vs The State Of Madhya Pradesh on 21 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 21 st OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 54839 of 2023
BETWEEN:-
SWAPNIL SACHDEVA S/O SHRI NIRMAL
SACHDEVA, AGED ABOUT 37 YEARS,
OCCUPATION: BUSINESS R/O NEAR SANSKAR
VATIKA SUBHASHGANJ, DABRA DISTRICT
GWALIOR (M.P.) (MADHYA PRADESH)
.....APPLICANT
(SHRI RAVI SHANKAR BANSAL, LEARNED COUNSEL FOR THE
PETITIONER ).
AND
THE STATE OF MADHYA PRADESH INCHARGE
POLICE STATION THROUGH POLICE STATION
MAHILA THANA PADAV DISTRICT GWALIOR M.P.
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAJENDRA SINGH YADAV, LEARNED PP),
(SHRI PREM SINGH BHADOURIA, LEARNED COUNSEL FOR THE
RESPONDENT [COMP].
Th is application coming on for HEARING this day, t h e court
passed the following:
ORDER
T h e first bail application has been filed by the applicant under
Section 438 of the Code of Criminal Procedure, 1973 for grant of
anticipatory bail to the applicant who is apprehending his arrest in
connection with Crime No.259/2023 registered at Police Station Mahila
Thana Padav, District Gwalior (M.P.) for offence punishable under
Sections 498-A, 377, 294 and 506 of IPC, Section 4 of Dowry Prohibition
Act and Section 67-A of I.T. Act.
A s per the case of the prosecution, the prosecutrix submitted a
written complaint with Police Station Mahila Thana, Gwalior on
13.09.2023 inter alia alleging that she was married to applicant Swapnil
Sachdeva on 15.03.2021. On the day of her marriage, her father-in-law
Nirmal Sachdeva demanded dowry of Rs.5,00,000/-. Her father had paid
the amount to ensure her happy marriage. After her marriage, her husband
Swapnil, father-in-law Nirmal, mother-in-law Sushma, sisters-in-law
Pratishtha and Anchal started harassing her to claim share in her parental
property. She was subjected to mental and physical harassment. She
suffered from chicken pox disease. Her husband, without getting her
proper treatment, send to her parental home at Gwalior. Her husband,
Swapnil started living with her cousin Pratishtha. When she took
objection, Swapnil and Pratishtha abused her in filthy language. She
informed her father, but her father consoled her. On 04.04.2023, her
husband video-graphed some obscene videos. On 01.05.2023, her
husband forwarded obscene videos on her mobile phone and threatened
to make them viral. Her husband used to subject her for sex against her
will. Her father-in-law and her husband told her father that until she is
given share in parental property, they will not permit her to live with
Swapnil. On such allegations, Police Station Mahila Thana, Gwalior
registered FIR at Crime No.259/2023 for offence punishable under
Sections 498-A, 377, 294 and 506 of IPC, Section 4 of Dowry Prohibition
Act and Section 67-A of I.T. Act. Statements of the prosecutrix were
recorded under Sections 161 and 164 of CrPC. Statements of other
witnesses have also been recorded. Relevant seizures have been made.
Investigation is underway.
Learned counsel for the applicant in addition to the grounds
mentioned in the application, submits that the applicant is falsely
implicated in the matter. There was matrimonial discord between husband
and wife, therefore, false allegations are levelled against the applicant.
Learned counsel relying on the judgment of Apex Court in Navtej Singh
Johar and Others Vs. Union of India, (2018) 10 SCC 1, submits that
the constitutional validity of offence punishable U/s 377 of IPC was
considered by the Apex Court and the offence was held to be
unconstitutional. Learned counsel further relying on the judgment passed in
Umang Singhar Vs. State of M.P. and Others, on 21st September,
2023 in M.Cr.C.No.59600 of 2022, by coordinate Bench of this Court
at Jabalpur, submits that the offence punishable U/s 377 of IPC is not
applicable with regard to the sexual act of husband and wife. Therefore,
no offence punishable U/s 377 of IPC is made out against the applicant.
Learned counsel further relying on the judgment in Rajesh Sharma and
Others Vs. State of Uttar Pradesh and Another (2018) 10 SCC 472,
submits that except in a case where the physical injury is caused, the
applicant should be granted bail in relation to offence punishable
punishable U/s 498A of IPC. Learned counsel further contends that the
alleged video recorded by applicant husband was not made viral, it was
merely forwarded to the wife. Therefore, offence punishable U/s 67-A of
IT Act is also not made out against the applicant. Hence, the applicant
deserves to be released on anticipatory bail.
Per contra, learned counsel for the State ably assisted by learned
counsel for the complainant opposes the application and submits that as
per allegations contained in written complaint and the statement of
complainant recorded U/s 161 and 164 of Cr.P.C, she was subjected to
unnatural sexual assault against her will.. Therefore, offence punishable U/s
377 of IPC is made out. Hon'ble Supreme Court in the case of Navtej
Singh Johar (Supra) has finally concluded that only consensual sexual
acts between adults are decriminalized. Learned counsel further referring
to the statement of complainant submits that obscene videos were
recorded without her notice and against her consent. As per whatsapp chat
messages available on case diary, these obscene videos and photos were
forwarded by Swapnil to his friend, namely, Sardar. Since the applicant
was not available for investigation, allegation with regard to making of
obscene videos viral is yet to be investigated. Learned counsel further
submits that statement of complainant recorded U/s 161 and 164 of
Cr.P.C made out mental and physical harassment of the victim which
amounts to cruelty punishable U/s 498A of IPC. The material on record
reveals gravity of alleged offence. The applicant is avoiding the
investigation. He is absconding since the registration of FIR. His custodial
interrogation is needed for proper investigation. Therefore, the applicant
may not be extended the benefit of anticipatory bail.
Heard learned counsel for the parties and perused the case diary.
Considering the arguments advanced by both the parties and overall
circumstances of the case as reflected by the material available on case
diary, this Court does not deem it fit to extend benefit of anticipatory bail
to the applicant.
This application is therefore, rejected.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
Rks
