SHIV PRASAD CHOUDHARY Vs. STATE OF M P

JUDGEMENT

(1.) Heard .

(2.) On behalf of the applicant this 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. 478/13, registered at Police Station Umaria, for the offence punishable under Sections 376 and 506 of I.P.C. and under Section 5/6 of Protection of Children from Sexual Offences Act, 2012.

(3.) On the other hand, by opposing the aforesaid prayer with the assistance of the case diary, learned P.L. said that immediately after the incident the First Information Report was lodged by the employer of the prosecutrix, who did not aware about the incident of rape and on that basis, the offence of Section 456 of I.P.C. at the aforesaid Police Station was registered on the next morning 18.10.2013, as Crime No. 458/13, and according to such FIR, such incident was happed at 2 O'Clock in the night while as per FIR of the prosecutrix herself lodged at the same Police Station as Crime No. 478/13, the alleged offence of rape under criminal intimidation was committed by the applicant on her at 12 O' Clock in the night of 17.10.2013 and according to the averments of the FIR, due to criminal intimidation of the applicant, she reported the matter to the police only on 24.10.2013. The interrogatory statement of the prosecutrix and her parents were recorded. On recording the statement of the prosecutrix under Section 161 and 164 of Cr.P.C., again she has stated the same thing as stated by the applicant in her FIR. He further said that as per collected evidence by the investigating Agency, the prosecutrix was below 17 years on the date of the alleged incident although he has not disputed the aforesaid version of the applicant's counsel in which on recording the interrogatory statement of the father of the prosecutrix, he has shown the age of prosecutrix to be 23 years. In continuation he said that in any case, it is not a case of consent and in view of collected evidence, it could not be said that the alleged rape/intercourse was committed by the applicant with the prosecutrix with her consent and such question is yet to be considered by the Court on filing the charge -sheet after investigation before the competent Court but at present, to carryout the fair investigation, the presence of the applicant for custodial interrogation as well as for his medical examination is necessary and, therefore, the applicant does not deserve for extending the benefit of anticipatory bail. He also said that, initial ad -interim anticipatory bail order was passed when the case diary and the entire situation was not before the Court and now, the available evidence collected by the investigating Agency could not be ignored to make the aforesaid earlier order as absolute in this petition.