Hajrat Shah vs State of Madhya Pradesh

This first appeal has been filed under Section 14-A(1) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the order dated 11.12.2018 passed by Special Judge, SC/ST, Bhopal.

The appellant has been arrested in connection with Crime No.717/2018, registered at P.S. T.T.Nagar, District Bhopal, for the offences punishable under Sections 366, 368, 376, 506 & 34 of IPC, section 3/4 of the POCSO Act and section 3(2)(v), 3(2) (va) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The allegation of the prosecution is that on 11.8.2018 at about 10:00 pm appellant and prosecutrix aged about 18 years and 3 months have disappeared from Kamla Nehru School, New Market, Bhopal, report of which had been lodged by her father. On that basis, missing person report No.63/18 have been recorded. During the course of inquiry prosecutrix have been recovered on 16.8.2018. Her statements under section 161 and 164 of Cr.P.C., have been recorded. On that basis the aforesaid crime against the appellant and other co-accused persons have been registered.

Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated in the case. The prosecutrix had gone with him on her own free will and he and prosecutrix have solemnized marriage. The appellant is in judicial custody since 14.9.2018. He is a permanent resident of the address shown in the appeal and is ready to furnish adequate surety and shall abide by all the conditions that may be imposed by the Court. Therefore, it is prayed that the appellant be released on bail.

Learned Government Advocate for State has opposed the appeal for grant of bail.

During the course of investigation, the Police have collected evidence regarding the age of prosecutrix. In the Middle and High school marksheet her date of birth is mentioned as 4.5.2000. On that basis, the age of prosecutrix on the date of incident i.e. 11.8.2018 seems to be about 18 years and 3 months. In the FIR too, her age is mentioned likewise, but one birth certificate of Registrar, Birth and Death and Health Officer, Nagar Palika Nigam, Bhopal also seems to have been collected, in which her date of birth appears to be recorded as 4.5.2001. On that basis, on the date of incident i.e. 11.8.2018 the age of prosecutrix appears to be 17 years and 3 months. As stated above, the prosecutrix was recovered on 16.8.2018. Her statement under section 161 and 164 of Cr.P.C., have been recorded on 30.8.2018. In her statement under section 161 of Cr.P.C., she has shown her age to be 17 years, 3 months and had alleged that she was threatened by the appellant and other co-accused persons and forcibly taken by them and during the period of eloping, the appellant and prosecutrix have stayed at Shirdi and Mumbai, where appellant had committed forcible sexual intercourse with her. While in her statement recorded under section 164 of Cr.P.C., she seems to have stated that she had gone with the appellant and other co-accused persons with her consent and after reaching Mumbai her marriage with the appellant has been solemnized and there only appellant had made physical relation with her. She also seems to have stated that the appellant had brought her from Mumbai to Bhopal. On the date of incident prosecutrix seems to be an adult and there also appears to be element of consent for going with the appellant and also having physical relation with him. The appellant is a young boy of 19 years, who is in judicial custody since 14.9.2018. The trial will take a long time to conclude.

Looking to the facts and circumstances of the case, this appeal is allowed. The impugned order passed by the learned Special Judge (SC/ST), Bhopal dated 11.12.2018 is set aside and it is directed that the appellant Hajrat Shah shall be released on bail on his furnishing a personal bond in the sum of Rs.30,000/- (Rupees thirty thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court. The appellant shall abide by the conditions as enumerated under Section 437(3) of the Cr.P.C. and in the event of breach of condition of bail, the trial Court will be competent to take coercive action against the appellant.

Consequently, the present criminal appeal stands allowed and disposed of.

C.C., as per rules.