KIRTI MARTIN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) On behalf of the applicant this second repeat petition is preferred under Section 438 of Cr. P. C. for grant of anticipatory bail to the applicant as he is under apprehension of his arrest in connection of Crime No.332/13, registered at P. S. AJJAK Sagar District Sagar for the offence under Section 376(D), 506 of IPC, 3 (1) (xii) and 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, in short "the Act".

(2.) Earlier occasion on behalf of the applicant in this regard M. Cr. No.1601/13, was preferred. On taking up the same for hearing on 24.1.2014, the then arguing counsel instead to argue had pleaded no instruction, on which with the assistance of the case diary and the State counsel so also in presence of the counsel of objector/ prosecutrix such M. Cr. C. was initially considered on merits in which it was found that the applicant does not deserve for extending the benefit of anticipatory bail, but in view of aforesaid pleading of no instruction of the appearing counsel after making observation on merits as stated above the petition was dismissed for want of prosecution. Before proceeding further, I deem fit to reproduce the relevant part of aforesaid earlier order dated 24.1.2014 :

(3.) Senior counsel Shri Anil Khare, after taking me through the averments of the petition along with the papers placed on record so also aforesaid earlier order of this Bench argued that on pleading no instruction by the applicant's counsel his earlier application was dismissed for want of prosecution but by making the observation on merits, therefore to demonstrate the case effectively for grant of anticipatory bail the petitioner has filed this repeat petition. He also argued that there is no bar under the law to hear and consider the repeat petition under Section 438 of Cr. P. C. In continuation, on merits he said that as per allegation of the prosecution the alleged offence of gang rape was committed on the prosecutrix by the applicant accompanied with co-accused Billu Dhaniya (Sindhi) and accordingly there is no distinguishable case against the applicant. He further said that before dismissing his earlier application vide aforesaid order dated 24.1.2014 the application of the aforesaid co-accused for grant of anticipatory bail was considered and allowed by the coordinate Bench of this Court vide order dated 8.1.2014 in M. Cr. C. No.16382/13, and firstly prayed to extend the benefit of anticipatory bail to the applicant on the ground of parity. He further said that while considering this repeat petition the conduct of the prosecutrix requires consideration. In this regard he said that before the date of alleged incident at the instance of Garima an offence was registered against the prosecutrix, in which she was arrested, he also referred the copy of Rojnamcha Sanha (Ann. A.4), in this regard. Besides this the husband of the prosecutrix also made a complaint (Ann. P.9) to the police regarding character and conduct of the prosecutrix stating that she had illicit relation with some other person and also prayed to initiate the proceeding against her. He further said that FIR of the impugned crime was lodged at very belated stage from the date of the incident. In continuation, it was argued that after lodging the impugned FIR and recording the interrogatory statement of the prosecutrix so also her statement under Section 164 of Cr. P. C., contrary to such FIR and statements the prosecutrix had given her affidavit, mere perusal of such affidavit, it is apparent that applicant has been falsely implicated in the matter. In this regard he also prayed to call the prosecutrix before the Court to verify the averments of the affidavit before considering this petition on merits. He further said that although the applicant is working as Subinspector of Police in the Police Department but he is not posted at any police station. He is working in some office of the police department, and therefore, it could not be assumed that by misusing his power and position he has committed the alleged offence. So far, the affidavit of the investigation officer filed in compliance of the order of the Court is concerned, he said that averments of the affidavit stating that applicant is absconded since long could not be considered to be a ground for dismissal of his repeat application for grant of anticipatory bail. He also argued that unless the applicant is declared to be absconded person under Section 82 of Cr. P. C. he could not be treated to be absconded person. He also placed his reliance on the decided cases of the Apex court in the matter of Manager General J. K. Bansal Vs. Union of India, 2005 7 SCC 226, in the matter of Avtar Singh Vs. State of Punjab, 2010 15 SCC 529, of Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2011 1 SCC 694, of Shobhan Singh Khanka Vs. State of Jharkhand, 2012 4 SCC 684 and of in the matter of State of Madhya Pradesh Vs. Pradeep Sharma, 2014 2 SCC 171, and prayed to extend the benefit of anticipatory bail to the applicant by allowing this repeat petition.