THE HIGH COURT OF MADHYA PRADESH
MCRC.912/2018.
Dr.Amit Samadhiya Vs. State of M.P.
Gwalior, Dated: 19/1/2018
Shri R.K.Sharma, learned Senior Advocate, with
Shri Anil Mishra and Shri Tapendra Sharma, learned
counsel, for the applicant.
Shri Rajesh Pathak, learned Public Prosecutor, for
the respondent/State.
Shri Jitendra Sharma, learned counsel, for the
prosecutrix/objector.
Shri Ashirwad Dwivedi, learned previous counsel,
for the prosecutrix.
On due consideration, I.A.No.397 of 2018 is
allowed and Shri Ashirwad Dwivedi is permitted to
withdraw his Vakalatnama filed on behalf of the
prosecutrix.
On due consideration the documents filed on
behalf of the applicant and the prosecutrix vide
document Nos.694 of 2018 and 697 of 2018
respectively are taken on record.
Heard arguments.
Perused case diary and material on record.
This is the first bail application filed by the
applicant under Section 438 of the Cr.P.C for grant of
anticipatory bail as he apprehends his arrest in Crime
No.125 of 2017 registered at Mahila Police Station
Gwalior against him and co-accused Dr. Sandeep Singh
Tomar for the offences punishable under Sections 376,
354, 506, 417 and 34 IPC.
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On 7.12.2017, the prosecutrix lodged a typed
FIR with Mahila Police Station Gwalior. The sum and
substance of the FIR is that she came into contact with
applicant Dr.Amit Samadhiya some time in August
2012. A day in November 2012, he took her to his flat
situated in Gwalior, where he had forcible sexual
intercourse with her. At that time, she threatened him
that she would lodge a police report against him for
forcible sexual intercourse against her wishes.
Thereupon, he assured her that he would marry her
after completion of his medical education. Thereafter,
he had sexual intercourse with her several times under
the pretext of marrying her. In the year 2014, the
applicant took her in a hotel at Gwalior, where he had
sexual intercourse with her on the promise of
marriage. Later, she asked him to talk about their
marriage with his parents. He denied talking about her
marriage with his parents. On 16.11.2017, she went to
Delhi for her personal work, where he called her to his
flat. There, he had sexual intercourse with her several
times from 16.11.2017 to 20.11.2017 on the promise
of marriage. On 1.12.2017, the applicant invited her to
Delhi for the talk of marriage. He and the co-accused
took her to a hotel, where they had offered her soft
drink laced with intoxication. Under the influence of
intoxication, she doubts that they got some letters
written in favour of the applicant. The co-accused also
touched her body inappropriately when she was
traveling with the applicant and him in a car in Delhi.
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On 2.12.2017 at about 11 p.m, she regained her full
sense and found her in a hotel where they were not
present.
Learned counsel for the applicant submits that
the prosecutrix is a major since November 2012, well
educated and English knowing girl and she does
modelling. Therefore, she knows very well the
consequences of having premarital sexual relations
with the applicant. After referring to the FIR, he
submits that the prosecutrix has stated in the FIR that
in the year 2014, the applicant had refused to marry
her in clear words. At that time, she could have
lodged the FIR against him of rape on the promise of
marriage. But she had not done so. Referring to the
FIR, he further submits that there were no relations
whatsoever between the applicant and the prosecutrix
between the years 2012 to 2016 i.e. for about three
years. He submits that as per the FIR, the sexual
relations between the prosecutrix and the applicant
were re-established first time on 16.11.2017. He
submits that since the applicant had flatly refused to
marry the prosecutrix in the year 2014, the sexual
relations between the period from 16.11.2017 to
20.11.2017 amount to consensual sex between the
applicant and the prosecutrix. He submits that the
applicant is a doctor by profession and that he is at
present in the service of Government of NCT of Delhi.
He submits that the applicant has no criminal
antecedents. He submits that a Coordinate Bench of
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this High Court vide order dated 18.5.2017 passed in
M.Cr.C.No.11363 of 2016 had quashed the FIR of rape
on almost same facts holding that it is a case of
consensual sex. He also pressed into service in support
of his contention the order dated 9.1.2017 rendered by
the Bombay High Court in an Anticipatory Bail
Application No.2221 of 2016 wherein Lady Lordship
has observed that when a woman is major and
educated, she is fully aware of the consequences of
having sexual intercourse with the man before
marriage. In that situation, the sexual relations
between them are of consensual in nature. He has also
placed reliance of some other unreported orders
rendered by the Coordinate Benches of this High Court
while granting anticipatory bail to the applicants
against whom charges were that they had sexual
intercourse giving inducements to the victims. He
assures this court on behalf of the applicant that he
would fully cooperate with the investigating officer in
the investigation of the case and as and when the
presence of the applicant is required by the
investigating officer in the course of investigation, he
would come from Delhi to Gwalior to assist him. Upon
these submissions, he prays for grant of anticipatory
bail to the applicant.
Learned Public Prosecutor and learned counsel for
the prosecutrix have vehemently opposed the prayer
for grant of anticipatory bail to the applicant. They
submit that as per the FIR, on 16.11.2017 to
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20.11.2017, the applicant had sexual intercourse with
her several times on the promise of marriage and,
therefore, the offence of rape against the applicant is
prima facie made out under Section 376 (2) (n) IPC.
I have given full consideration to the facts and
circumstances of the case and the submissions raised
on behalf of the parties by their counsel and perused
all the rulings cited before me. From the FIR itself, it is
clear that the applicant had made his intention clear in
the year 2014 to the prosecutrix that he would not
marry her. Therefore, the prosecutrix ought to have
lodged the FIR against the applicant in the year 2014
itself to the effect that the applicant had sexually
exploited her on the promise of marriage. As per the
FIR, the prosecutrix and the applicant were not on
speaking terms much less sexual relations for three
years between the period 2014 to November 2017.
The prosecutrix has alleged in the FIR that the
applicant had sexual intercourse with her on the
promise of marriage between the period 16.11.2017 to
20.11.2017. Since the applicant had refused the
prosecutrix to marry her in the year 2014, therefore,
the sexual relations between the applicant and the
prosecutrix for the said period cannot be said that the
applicant had sex with the prosecutrix on the promise
of marriage. On the other hand, the sexual relations in
the said period between the applicant and the
prosecutrix are in the nature of consensual sex.
Therefore, there is no prima facie evidence at present
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to make out a case under Section 376 IPC. For the
aforesaid reasons, I deem it proper to grant the
anticipatory bail to the applicant with certain stringent
conditions.
The applicant is directed to appear before the
Investigating Officer of the case on or before
31.1.2018 for interrogations and submissions of
documents of his permanent residential address and
contact numbers. The Investigating Officer is directed
that if he arrests the applicant Dr.Amit Samadhiya in
the case, then he will release him on bail upon his
furnishing a personal bond in the sum of Rs.40,000/-
(Forty Thousand) with one solvent surety of Gwalior
district of the same amount to his satisfaction.
Thereafter, he shall appear before the investigating
officer as and when his presence is required for
interrogations. The applicant shall abide by all the
conditions enumerated in Section 438 (2) Cr.P.C. In
addition to that the applicant shall not leave India
without written permission of this court.
It is made clear that if the applicant fails to
appear before the Investigating Officer within the
stipulated time period, then this bail order shall stand
automatically cancelled.
The respondent/State and the prosecutrix shall
have the liberty to file an application under Section
439 (2) CrPC for cancellation of the anticipatory bail if
the applicant misconduct himself or misuse the liberty
of anticipatory bail.
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It is made clear that “no one” shall be influenced
by any observations made in this order directly or
indirectly in the further proceedings of the case.
Accordingly, this application stands disposed of.
Certified copy as per rules.
(Rajendra Mahajan)
RKS Judge
R. K. SHARMA
2018.01.20 11:55:34 +05’30’
