Dinesh Parmar vs The State Of M.P.
2023 Latest Caselaw 176 MP

                                                     1
               IN         THE       HIGH COURT OF MADHYA PRADESH
                                          AT INDORE
                                              BEFORE
                                  HON'BLE SHRI JUSTICE ANIL VERMA
                                       ON THE 3 rd OF JANUARY, 2023
                                 MISC. CRIMINAL CASE No. 55883 of 2022

              BETWEEN:-
              DINESH PARMAR S/O KALU PARMAR, AGED 42 YEARS,
              OCCUPATION: LABOUR VILLAGE KALIBILLOD, POLICE
              STATION BETMA DISTIRCT INDORE (MADHYA
              PRADESH)

                                                                                  .....APPLICANT
              (SHRI ROHIT PANWAR, ADVOCATE)

              AND
              1.         THE STATE OF M.P. THROUGH P.S. BETMA,
                         DISTRICT INDORE (MADHYA PRADESH)

              2.         PROSECUTRIX/ VICTIM X THROUGH STATION
                         HOUSE OFFICER, POLICE STATION BETMA
                         DISTRICT INDORE (MADHYA PRADESH)

                                                                   .....NON-APPLICANTS/STATE
              ( SHRI KAPIL MAHANT, PANEL LAWYER)

                         This application coming on for orders this day, Hon'ble Shri Justice

             Anil Verma passed the following:
                                                      ORDER

Applicant has filed this second repeat bail application under Section 439 of the Code of Criminal Procedure, 1973. His earlier bail application was dismissed as withdrawn vide order dated 29.07.2022 passed in MCRC No.35835/2022. He is in jail since 19.05.2022 in connection with Crime No.189/2022 registered at P.S. - Betma, Indore (M.P.) for commission of Signature Not Verified Signed by: TEJPRAKASH VYAS offence punishable under Sections 376, 376(2)(f), 376(2)(n) of IPC and Section Signing time: 1/4/2023 10:41:22 AM

5L/6 of POCSO Act.

A s per the prosecution story, on 25.03.2022 at about 13:14 hours, mother of the prosecutrix/complainant Asha, lodged a missing person report at P.S. Betma, Indore by stating that her minor daughter/prosecutrix is missing from the home. They tried to search her everywhere, but she could not find. During the investigation, on 26.03.2022, prosecutrix was recovered and it has been gathered that applicant abducted the prosecutrix and committed rape upon her several times. Accordingly, a case has been registered against the applicant.

Learned counsel for the applicant contended that applicant is innocent and he has been falsely implicated in this matter. He is in custody since

19.05.2022. Investigation is over and charge sheet has been filed. Prosecutrix (PW-1), her mother (PW-2) and her relative Kishore (PW-3) have been examined before the Trial Court. There is material contradictions in the statement of the prosecutrix and her mother given before the Trial Court. Their statements under Sections 161 and 164 of Cr.P.C. are also contradictory. Their contradictory statements cannot be relied upon. Applicant is permanent resident of District Indore and final conclusion of trial will take considerable long time. Hence, he prays that applicant be released on bail.

Per-contra, learned PL for respondent/State opposes the bail application and prays for its rejection by submitting that statement of prosecutrix, her mother and one other relative's statements have been recorded before the Trial Court, and they have supported the prosecution case, therefore, he does not deserve for bail.

Perused the case diary as well as the impugned order of the court below. Signature Not Verified Signed by: TEJPRAKASH VYAS Considering all the facts and circumstances of the case, arguments Signing time: 1/4/2023 10:41:22 AM advanced by counsel for the parties, nature and gravity of allegation as also

taking note of the fact that prosecutrix stated that present applicant abducted her committed rape upon her. As per the scholar register, date of birth of the prosecutrix is 10.05.2005 therefore, it appears that at the time of incident prosecutrix was minor and her mother (PW-2) has also supported the case.

At the stage of consideration of bail, marshaling 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. (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."

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 second bail application preferred under Section 439 of Cr.P.C. is hereby rejected.

C.C. as per rules.

                                                                                              (ANIL VERMA)
Signature Not Verified                                                                           JUDGE
                Shruti
Signed by: TEJPRAKASH
VYAS
Signing time: 1/4/2023
10:41:22 AM