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M.Cr.C.No.2809/2017
(Kartik Jain v. State of M.P.) 11/04/2017 Shri V.K. Saxena, Senior counsel with Shri D.R. Sharma, counsel for the applicant. Shri Girdhari Singh Chauhan, Public Prosecutor for the respondent/State. Shri
P.S.
Bhadoriya,
counsel
for
the
complainant. Case diary is available. Heard the learned counsel for the parties. This is an application under Section 438 of CrPC for grant of anticipatory bail. The applicant apprehends his arrest in Crime No.38/2017 registered by Police Station Huzrat Kotwali, District Gwalior for offences punishable under Sections 376-D, 506 of IPC. It is submitted by the senior counsel for the applicant that the prosecutrix is alleged to have lodged a FIR on 23.02.2017 against the applicant along with Arpit Jain and three unknown persons on the allegation that she is residing in a rented house belonging to Sharda Devi Singhal along with her husband and children. Her husband use to remain out of station for 2-3 days in connection with his work. In the month of August 2016 at about 11:00 AM, she was all alone in her house as her son had gone to the school. At that time, the applicant Kartik Jain came to her house. He was accompanied by one more boy and had a talk with her on the issue
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M.Cr.C.No.2809/2017
of grant of room on rent. The landlady refused to give the room on rent. After a week thereafter the applicant along with Aprit Jain and three co-accused persons came to her house and asked for the mobile number of the landlady. When she went inside in order to take paper and pen, all the five boys came inside and locked the door from inside and gagged her mouth. One boy removed her clothes and coaccused Arpit Jain took the photographs and video of the prosecutrix and under the threat of making the photographs and video public, all of them committed rape on her. At that time, they also extended threat that if the incident is narrated to anybody then they will kill her husband. Then whenever the husband of the prosecutrix was out of station, the co-accused and three persons used to come to her house and under the threat, they used to commit rape on her. As the complainant was afraid, therefore, she did not inform her husband about the incident. For the last time on 18.2.2017, all the five boys came and committed rape on her and as she was fed up with the conduct of the applicant and the co-accused then she informed her husband and has come to lodge the FIR. It is submitted by the counsel for the applicant that even according to the FIR, the incident for the first time had taken place in the month of August 2016 and for the last time on 18.02.2017 but still the
FIR
was
lodged
on
23.02.2017
and
the
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M.Cr.C.No.2809/2017
complainant/prosecutrix has not explained the delay in lodging the FIR. It is further submitted by the counsel for the applicant that the complainant is in a habit of making false allegation of rape against the innocent persons. In support of his contention, the counsel for the applicant has relied upon the FIR registered in Crime No.158/2015 by Police Station Kymore, District Katni to show that on earlier occasion also she had lodged a similar complaint against one Govind Mahotiya and Ramesh Mahotiya and thereafter she compromised the matter with them. It is further alleged that even the husband of the complainant is facing a trial for an offence under Section 376 of IPC. It is submitted by the counsel for the applicant that it is the profession of the complainant
to
falsely
implicate
the
innocent
persons and thereafter to compromise the matter with them. It is further submitted by the counsel for the applicant that even in this case, the complainant has compromised the matter with the applicant and a petition under Section 482 of CrPC has been filed seeking the quashment of FIR on the basis of compromise. Thus, in nutshell the contention of the counsel for the applicant is that (i) The FIR is delayed, (ii) The applicant is in habit of making false allegation of rape and thereafter she enters into a compromise. (iii) The family background of the complainant is such that even the husband of the complainant is facing a trial for an offence under
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Section 376 of IPC and lastly (iv) that on the advice given by the elderly members of the society, the complainant has also compromised the matter with the applicant and co-accused persons. It is further submitted by the counsel for the applicant that even if the allegations made in the FIR are taken on their face value, it would be clear that the complainant was a consenting party and the applicant is aged about 21 years and is a student and his detention in jail would spoil his career. Per contra, the application is opposed by the State counsel. It is submitted by the State counsel that the allegations made in the FIR are serious in nature. The complainant has specifically explained the delay for not lodging the FIR at the very first instance. The counsel for the complainant accepted that she has filed an affidavit in a petition filed by the applicant under Section 482 of CrPC for quashment of the FIR on the basis of compromise but however he seriously objected to the submission made by the counsel for the applicant that the complainant is a professional and is in habit of lodging false FIR for offence under Section 376 of IPC and she is in habit of compromising the matter later on. It is further submitted by the counsel for the complainant that in fact the offence was committed and only because of that the FIR in question has been lodged by the complainant. However, he submitted that on the
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M.Cr.C.No.2809/2017
advice given by the elderly members of the society, she has agreed to compromise the matter. Heard the learned counsel for the parties. From the FIR, it is clear that there is a specific allegation to the effect that the offence of rape was committed by the applicant and the co-accused. For the first time, they had taken the photographs and had prepared the video of the complainant. It is specifically alleged that for the first time she was raped by the applicant and the co-accused persons under the threat of making the photographs and video public. If the reason given by the complainant in the FIR is considered in proper perspective then it would be clear that there was a reasonable reason for
the
complainant
immediately.
Thus,
not under
to
lodge the
the
facts
FIR and
circumstances of the case, it cannot be said that there was a delay in lodging the FIR. So far as the submission made by the counsel for the applicant that the complainant was a consenting party is concerned, suffice it to say that it cannot be said that a lady would give her consent for physical relations with five different persons at a same time. The police has registered the offence under Section 376-D of IPC and, therefore, in a case of such a nature, it cannot be said that the complainant was a consenting party. So far as the question of professionalism of the complainant is concerned, suffice it to say that this
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submission made by the counsel for the applicant has been vehemently opposed by the counsel for the complainant. From the record, it appears that earlier also, the complainant had made a FIR against two persons for the similar offence but there is nothing on record to show that what was the outcome of the said FIR. Merely because the complainant was subjected to an offence of similar nature on the previous occasion would not ipso facto mean that the complainant is a professional in lodging such type of FIR and, therefore, the contention made by the counsel for the applicant is rejected. It is next contended by the counsel for the applicant
that
in
the
present
case
also
the
complainant has compromised the matter. The counsel for the complainant has also admitted that under the advice given by the elderly members
of
the
society,
she
has
agreed
to
compromise the matter. The offence under Section 376 of IPC is undisputedly is a heinous offence. If the contention of the counsel for the complainant is considered in proper perspective that she has agreed to compromise the matter because of the advice given by the elderly members of the society, then it would be clear that she has not voluntarily agreed for compromise. She has agreed only because of the interference by the elderly
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members of the society. Once, it is specifically submitted by the counsel for the complainant that in fact the complainant was subjected to rape on various occasions then it would be clear that under such circumstances the fact of compromise by the complainant cannot be a good ground for grant of anticipatory bail to the applicant. It is next contended by the counsel for the applicant that the applicant is a young boy aged about 21 years and is a student. Considering the nature of the offence alleged to have been committed by the applicant, this Court is of the view that the young age of the applicant is not a ground for grant of anticipatory bail. Accordingly, it is not a fit case for grant of anticipatory bail. Hence, this application fails and is hereby dismissed.
(ra)
(G.S.Ahluwalia) Judge
