Abhishek Shrivastva vs The State Of Madhya Pradesh
2023 Latest Caselaw 1618 MP

                                     1
 IN     THE        HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                          BEFORE
        HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                      ON THE 30 th OF JANUARY, 2023
                MISC. CRIMINAL CASE No. 59338 of 2022

BETWEEN:-
ABHISHEK SHRIVASTVA S/O SHRI MURARI LAL
SHRIVASTVA, AGED ABOUT 36 YEARS, OCCUPATION:
ADVOCATE 636 SHEETALAMAI WEST GHAMAPUR
DISTRICT JABALPUR (MADHYA PRADESH)

                                                                .....APPLICANT
(BY SHRI B. J. CHOURASIYA - ADVOCATE)

AND
1.    THE STATE OF MADHYA PRADESH THROUGH
      POLICE STATION BARELA DISTRICT JABALPUR
      (MADHYA PRADESH)

2.    VICTIM X S/O NOT MENTION THROUGH POLICE
      STATION    BARELA,  DISTRICT  JABALPUR
      (MADHYA PRADESH)

                                                             .....RESPONDENTS
(BY SMT. GEETA YADAV - PANEL LAWYER FOR RESPONDENT NO.1/
STATE.
SHRI AMIT SAHNI - ADVOCATE FOR THE RESPONDENT NO.2/
OBJECTOR)

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

This first bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant for grant of bail.

Applicant has been arrested in connection with Crime No.708/2022, of P.S. Barela, District Jabalpur (M.P.) for the offence punishable under Sections 376, 376(2)(N) of IPC. He is in detention since 3.12.2022.

As per the prosecution case on 3.12.2022, 38 years old prosecutrix submitted an application in writing before S.H.O., Barela, alleging that her marriage was solemnized with her husband on 11.5.2011. She is blessed with two daughters, out of them, one is 9 years and another is 5 years old. Her husband is an advocate and has number of friends and out of these friends, present applicant who is also advocate by profession and he use to come to her home for legal profession with her husband in the lawyer chamber situated in her house. In December 2021 she had some talks with her husband about purchasing a washing machine. Applicant sent a washing machine at her home and took her mobile phone number. Thereafter, he started to chat with her. He

started to provoke her by manufacuturing number of situation against her husband stating that her husband has number of old girl friends and use to enjoy with them. He also used to say her as to what kind of person she has been married. He used to tell her to go out of the home and to take her own decisions.

On 30.8.2022, when her husband had gone to Sagar, applicant took her to his farm house and told that he wanted to solemnize marriage with her and is also ready to adopt her both daughters. Thereafter, applicant took out chain from her neck and re-offered her telling that now they are married couple, she is his wife and established physical relations with her. Thereafter, on number of occasions, in absence of her husband he took her at his farm house and used to establish physical relations with her. It is alleged that on the false promise of marriage, he raped her on 30.8.2022, 15.9.2022 and 26.9.2022. He also committed oral sex with her on mobile. One day her husband asked her as to with whom she use to talk regularly on phone, then she narrated the entire story

to her husband. It is further alleged that applicant had established sexual relationship with her by cheating, alluring and inducing her. Applicant never intend to perform marriage with her. Almost after two months and 8 days of the last incident of alleged rape on the basis of written complaint, FIR was registered.

Learned counsel for the applicant has submitted that the applicant has not committed any offence. He is innocent. He has been falsely implicated. Prosecutrix is a 38 years old lady. She was having consensual relationship with him and they both on their own voluntarily established physical relations with each other on number of occasions. It is not a case of misconception of facts as consensual relationship has lasted for number of months. At the most a case of adultery may be made out but Section 497 of I.P.C. has already been struck down as unconstitutional by Supreme Court. It is submitted that applicant is an Advocate having no criminal background. It is submitted that there is a detail call record showing that they both used to talk on mobile phone on their own. There was no compulsion, no cheating, no inducement or allurement on the part of the applicant. Therefore, it has been prayed that applicant be released on bail.

On the other hand, learned Panel Lawyer for the respondent/State as well as learned counsel for respondent No.2/ Victim have opposed grant of bail to

the applicant.

Learned counsel for the objector placing reliance on the judgment of Amit Raoso Patil Vs. State of Maharashtra - 2020 SCC Online Bombay 917; Union of India Vs. Subhash Chandra Aggarwal - 2017 SCC Online Delhi 6813; Union of India through Director, Ministry of Personnel, Pg. & Pension - 2009 SCC Online Delhi 3876 and Mohanlal and another Vs.

State of Punjab - (2013)12 SCC 519, contended that not only an offence under Section 376(2)(f) and 376(2)(n) of IPC is made out but an offence under Section 376-C Cr.P.C. is also made out as applicant and prosecutrix's husband who are lawyers by profession are practicing through the same chamber situated in the house of prosecutrix. Therefore, it would be assumed that there was fiduciary relationship between prosecutrix and applicant, as she was having faith on him only being a friend of her husband. As sexual relationship has been established flouting the fiduciary relationship, an offence of rape is made out. Learned counsel for objector referring the provisions of Section 114A of the Evidence Act has submitted that it is not a case of free consent and whenever in such cases prosecutrix says that rape has been committed without her consent, that will be presumed to be correct. Therefore, on the basis of aforesaid, learned counsel for the Victim and learned Panel Lawyer for the State has prayed for rejection of bail application.

In this case, it cannot be overlooked that prosecutrix is a 38 years old married woman having two children. Her husband is an Advocate and applicant/ accused is also an Advocate. It is admitted that both are practicing through the same chamber situated in the house of prosecutrix husband. It cannot be overlooked that in this case, applicant was not having any authority over prosecutrix as contemplated in Section 376-C of Cr.P.C. As far as the case of Amit Raoso Patil (supra) is concerned, in that case prosecutrix was 17 years old girl and the applicant/accused was a family friend and a business partner of her father and in the facts of the case Bombay High Court had come to the conclusion that applicant has taken advantage of fiduciary relationship which he shared with the victim girl and put her in a vulnerable situation. In the

case of Mohanlal (supra) prosecutrix, a student was raped by her teacher. Thus, the facts of both the cases relied on by learned counsel for objector are not applicable in the facts of the present case. As far as the case of Union of India (supra) are concerned, they are based on a dispute arising out of RTI information. Therefore, aforesaid case laws have no application in the facts of the present case.

In this case, applicant who is a practicing advocate and practice with the husband of the prosecutrix in same chamber was having a fiduciary relationship with the prosecutrix or not, is a matter of evidence. Therefore, at this stage, no inference about fiduciary relationship can be drawn. In this case, it also cannot be overlooked that FIR has been lodged almost after two months 6 days of the alleged last incident and no reasonable explanation has been given for such inordinate delay. Applicant is an Advocate and there is no possibility of his fleeing from the justice. As prosecutrix's husband is also a practicing Advocate, hence, it cannot be said that applicant is in a position to influence or tamper with the prosecution evidence. Therefore, having taken into consideration all the facts and circumstances of the case but without expressing any opinion on the merits of the case, I am of the view that it is a case in which further pre-trial detention of the applicant/ accused is not warranted.

Consequently, first bail application under Section 439 of the Code of Criminal Procedure for grant of bail filed on behalf of applicant, stands allowed.

It is directed that applicant -Abhishek Shrivastava be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court, for his regular appearance before the concerned Court on all

such dates as may be fixed in this behalf by the trial Court during the pendency of trial. He shall abide by all the conditions enumerated under Section 437(3) of Cr.P.C.

This order shall remain effective till the end of the trial. However, in case o f bail jump and breach of any of the conditions of bail, it shall become ineffective.

Certified copy as per rules.

(DINESH KUMAR PALIWAL) JUDGE mrs. mishra

DEEPA Digitally signed by DEEPA MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=JUDICIAL, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=3ece46b8e3ea2cc1fa35126c71ddf298e10aa edd7345a5efb4e2a1a8a88446bf,

MISHRA pseudonym=EDBA3C23FD7AA0D583DA5AD3755C3 F37152C1CC0, serialNumber=E5AB7E7C0015E02D05F4525962F1C4 83E415D288FB5C7C2082F662F2BB495B44, cn=DEEPA MISHRA Date: 2023.02.02 17:51:22 +05'30'