Mukesh S/O Phoolchand vs State Of MP

S.A. Dharmadhikari, J

The applicant has filed this Fourth application u/S 439, Cr.P.C. for grant of bail. The first, second and third bail applications were dismissed as withdrawn vide orders dated 06/07/2021, 11/08/2021 & 23/10/2021 passed in M.Cr.C.No. 26699/2021, 36933/2021 & 47098/2021.

The applicant has been arrested on 21.05.2021 by Police Station Kumbhraj, District Guna, (M.P.), in connection with Crime No.224/2016 registered in relation to the offences punishable u/Ss. 363, 366, 376-D IPC and Sec. 5/6 of the Protection of Children from Sexual Offences Act 2012.

The allegation against the applicant and other co-accused persons, in short, is that on 13.03.2016 by enticing the prosecutrix took her away along with them and thereafter committed sexual intercourse (gang rape) with her. On the basis of the aforesaid, crime has been registered.

Learned counsel for the applicant submits that applicant has falsely been implicated in the case. The applicant has not committed the alleged offence. He is innocent and not involved directly or indirectly in commission of said offence. Even in view of averments of FIR, no alleged offence is made out against the applicant. Learned counsel further submits that investigation stands completed by filing of the charge sheet. No further custodial interrogation is required. It is further submitted that name of the applicant has neither been mentioned in the FIR nor in the statement recorded under section 161 of Cr.P.C, but the name of the applicant has been mentioned in the statement recorded under section 164 of Cr.P.C. According to the medical report, no external or internal injuries were found on the body of the prosecutrix. It is further submitted that the Doctor concerned has opined that no definite opinion in regard to commission of rape can be given. Most of the co-accused persons have already been enlarged on bail by this Court. It is further submitted that trial is held up due to COVID-2019 and the applicant cannot be kept in custody for an unlimited period without any substantial reason. It is further submitted that in view of outbreak of COVID 19, detention of the applicant in already congested prison may be detrimental. The applicant is in jail since 21/05/2021 and he is a permanent resident of District-Guna. There is no possibility of his absconding or tampering with the evidence. The applicant is ready to abide by the terms and conditions as may be imposed by this Court. With the aforesaid submissions, prayer for grant of bail is made.

Learned State counsel opposed the application on the ground that the applicant was absconding for last five years and with great difficulty he has been arrested on 21/05/2021 and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.

This Court had permitted the applicant to withdraw the first bail application. While deciding the second bail application of the applicant, this Court had observed that the applicant has recently been arrested on 21/05/2021 and, therefore, grant of bail at that stage would be grant of premium to default.

Thereafter, the third bail application was dismissed as withdrawn with liberty to repeat the prayer for bail after suffering sufficient incarceration. Thereafter, the present fourth bail application has been filed by the applicant without waiting for sufficient incarceration. The prosecutrix in her statement has categorically stated that the applicant was also involved in the alleged offence and has also committed rape with her on number of occasion.

In view of the above and considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case particularly the nature of allegation as well as gravity of offence and the role played by the applicant, I am of the opinion that this is not a fit case, in which bail may be granted to the present applicant Mukesh S/o Phoolchand Gurjar . Accordingly, this repeat bail application of the present applicant under Section 439 Cr.P.C. relating to the aforesaid crime is hereby dismissed.

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