Praveen Alias Sheru Jain vs State Of Madhya Pradesh

This application under Section 438 of Cr.P.C. has been filed for grant of anticipatory bail, as the applicant apprehends his arrest in connection with crime No. 60/2017 registered by police station Karhaiya, Distt. Gwalior for offence under Sections 366,376 and 506 of I.P.C.

According to the prosecution case, on 26-7-2017, the prosecutrix was going to fill up the form of B.A. to Chinaur from her village Mehgaon. On the way, She met with the applicant and co-accused Annu who offered lift. As these persons were known to the prosecutrix, therefore, She sat on the motor cycle which was being driven by the co-accused Annu. When they reached Chinaur, then they didnot stop the motor cycle and also threatned the prosecutrix that in case, if she raises hue and cry, then her father would be killed. When they reached Amrol, one four wheeler was already there and co-accused Ajju and Sanat were already there. They gagged the mouth of the prosecutrix and tied her and put her in the four wheeler, and brought her to Shivpuri. There the applicant, Sanat and Ajju gave money to Annu and instructed that the prosecutrix and Annu must board the bus, and also extended the threat, that in case, if any hue and cry is raised by the prosecutrix, then her father would be killed. The co-accused Annu took her to Indore and locked the prosecutrix in a room. On the next day, the applicant and co-accused Sanat and Ajju also came there and all the four persons committed rape on her. She was subjected to rape by all the four persons, till 10-8-2017. Some how, She got the mobile phone of one of the accused persons, and accordingly, She informed her brother about her location. On 9-8-2017, She requested the co-accused Annu to take her to Zoo. When they reached Zoo, her brother was already waiting for her and after noticing her brother, the co-accused Annu also ran away from the spot. Thus a specific allegation was made by the prosecutrix, that She was subjected to gang rape by all the four accused persons, including the applicant.

It appears, that the co-accused Ankit along with the prosecutrix, filed a writ petition before this Court seeking protection of the police authorities, on the ground that the prosecutrix and the co-accused Ankit have married each other, and the said writ petition was registered as W.P. No. 5077 of 2017. Relying on the pleadings, the co-ordinate Bench of this Court by order dated 9-8-2017, passed the following order :

"Taking into account the submissions made by learned Counsel for the parties and as agreed to by them, the writ petition is disposed of with the direction that if protection is sought by the petitioners against any harassment or intimidation against their life, liberty and dignity arising out of the marriage solemnized by them, the same would be granted to them by the respondents on verifying the factum of marriage and age in accordance with law and in terms of the decision of the Apex Court."

It appears that the co-accused Ankit Jain, was arrested and he filed an application under Section 439 of Cr.P.C. for grant of bail which was registered as M.Cr.C. No. 25818/2017.

The above mentioned order passed in W.P. No. 5077/2017, was also relied upon, however, considering the statements of the prosecutrix which were recorded under Section 161 and 164 of Cr.P.C., this Court rejected the bail application of co-accused Ankit.

Thereafter, the present application under Section 438 of Cr.P.C. has been filed on behalf of the applicant for grant of anticipatory bail. As already pointed out, there is also an allegation of rape against the applicant. The applicant has also relied upon the order passed in W.P. No. 5077/2017.

This Court by order dated 20-8-2018, called the record of W.P. No. 5077/2017 and after perusing the said record, called the register of Oath Commissioner, Ms. Kusum Sharma for giving details of the entries made by her on 3-8-2017.

Today, Ms. Kusum Sharma, Oath Commissioner is present in person along with her register. The details of the prosecutrix and the signatures are at serial no. 6095.

The Counsel for the complainant, by referring to the statement of the prosecutrix, which was recorded under Section 164 of Cr.P.C. submitted that her signatures were obtained on papers at Indore, while She was under confinement. It is also submitted by the Counsel for the complainant, that She had never filed W.P. No. 5077/2017, and the co-accused Ankit Jain, in connivance with the applicant and other accused persons, had obtained the order in W.P. No. 5077/2017, by playing fraud on the Court and the complainant had never come to Gwalior for swearing the affidavit. It is further submitted that since, the prosecutrix was subjected to gang rape till 10-8-2017 at Indore and was in confinement at Indore, till 10-8-2017, therefore, there was no question of coming to Gwalior on 3-8-2017 and sending a representation to the Police Authorities, swearing the affidavit on 3-8-2017. The W.P. No. 5077/2017 was allowed on 9-8-2017, but till then She was being subjected to gang rape.

Considering the submissions made by the Counsel for the complainant, this Court has perused the register of Ms. Kusum Sharma, Oath Commissioner, as well as the affidavit sworn by the complainant. There are basic differences in the signatures of the complainant. The signature of the complainant on the affidavit are much different from that of the signature of the complainant which are available in the register of the Oath Commissioner, Ms. Kusum Sharma.

It is submitted by Ms. Kusum Sharma, Oath Commissioner, that She had no option but to rely upon the identification done by the Counsel for the Petitioner, however, could not reply that whether the complainant was present at the time of swearing of the affidavit or not and also could not explain as to why there is a vast difference in the signatures of the complainant on the affidavit and her register.

So far as the allegations made by the Counsel for the prosecutrix, with regard to non-filing of the W.P. No. 5077/2017 are concerned, there appears to be some substance, however, the objection raised by the prosecutrix cannot be decided without conducting a detailed investigation. However, the matter is already sub-judice before the Trial Court, therefore, this Court is of the considered opinion, that it would not be proper for this Court to go into the details of the allegations made by the complainant with regard to the non-filing of W.P. No. 5077/2017, because ultimately, any enquiry done by this Court, may have some effect on the Trial.

At this stage, it is submitted by the Counsel for the applicant that he may be permitted to withdraw this bail application and also gave an undertaking that in future, the order dated 9-8-2017 passed in W.P. No. 5077/2017, shall not be relied upon by any of the accused.

As the applicant has already expressed his willingness to withdraw this application, therefore, the application filed by the applicant under Section 438 of Cr.P.C. is Dismissed as withdrawn.