Jitendra vs State Of M.P

G.S. Ahluwalia, J

This second application under Section 439 of Cr.P.C. has been filed for grant of bail. The first bail application was dismissed by order dated 5.8.2021 passed in M.Cr.C.No.37187/2021.

The applicant has been arrested on 25.6.2021 in connection with Crime No.62/2021 registered at Police Station Ghatigaon, District Gwalior for offence under Section 376-D of IPC.

It is submitted by the counsel for the applicant that after the rejection of the first bail application, the police has concluded the investigation and has filed the charge sheet.

Per contra, the application is vehemently opposed by the counsel for the respondent/State. It is submitted by the counsel for the State that not only the first bail application of the applicant has been rejected on merits but the filing of the charge sheet cannot be said to be a change in circumstance.

Heard the learned counsel for the parties.

The Supreme Court in the case of Virupakshappa Gouda & Anr. vs. State of Karnataka reported in (2017) 5 SCC 406 has held as under:-

"12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge. He has been swayed by the observations made in Siddharam Satlingappa Mhetre [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] , especially in para 86, the relevant part of which reads thus: (SCC p. 729)

"86. ... The courts considering the bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court."

For making out an offence under Section 376-D of IPC it is not necessary that each and every one should have committed rape and if a person was sharing common intention/mens rea, then he is liable for the act of the others. The applicant was driving the car when the offence was committed.

Under these circumstances, at this stage, this Court does not find it to be a fit case for grant of bail. The application fails and is hereby dismissed. However, liberty is granted to the applicant to revive the prayer after the examination of witnesses.