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Amit Agarwal vs The State Of Madhya Pradesh on 3 October, 2018

1

HIGH COURT OF MADHYA PRADESH
Cr.A.7199/2018
(Amit Agrawal Vs. State of M.P. Anr.)

Gwalior, dated 03.10.2018
Shri V.K.Saxena, learned senior counsel with Shri
Mehmood Khan, learned counsel for the appellant.
Shri D.S.Tomar, learned Public Prosecutor for the
respondent No.1/State.

Shri Deepak Goyal, learned counsel for respondent
No.2 with respondent No.2 Dinendra Mourya/complainant.

Appearing respondent No.2 Dinendra Mourya has
today filed his affidavit to the effect that only oral altercation
has occurred with the appellant and he is not opposing the
prayer made by the appellant for anticipatory bail and he
does not want any action against the appellant.

Appearing counsel for the parties heard on alleged first
criminal appeal filed under Section 14-A of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 against the impugned order dated 06.09.2018 passed
by Special Judge, Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Gwalior whereby appellant’s
anticipatory bail application filed under Section 438 of the
Cr.P.C. was dismissed in relation to Crime No.469/2018
registered at Police Station Padav, District Gwalior in
reference to offences punishable under Sections 377 and 506
Part II of the IPC and Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act
and the produced case diary and papers filed by the parties
before this Court are also perused.

It has been contended by appearing senior counsel for
2

HIGH COURT OF MADHYA PRADESH
Cr.A.7199/2018
(Amit Agrawal Vs. State of M.P. Anr.)

the appellant that Section 377 of the IPC has been declared
unconstitutional by Hon. Apex Court in a recent judgment
and complainant has filed his affidavit in support of present
appellant that no any offence was committed with him by the
appellant and complainant/respondent No.2 is not opposing
appellant’s prayer for anticipatory bail and appellant is a
reputed person of the relating locality and there is no
possibility of his fleeing away from justice and he is ready to
comply with the conditions to be imposed by the Court and
the Special Court committed error in dismissing his
anticipatory bail application, therefore, it is prayed that his
appeal be allowed and impugned order be set aside and he
be ordered to be given benefit of anticipatory bail.

Per contra, above mentioned prayer has been strongly
opposed by the appearing Public Prosecutor on behalf of
respondent No.1/State on the grounds that Hon. Apex Court
in its recent judgment has declared that Section 377 of the
IPC insofar as it criminalizes homosexual sex and transgender
sex between consenting adults as unconstitutional, but it is
clearly held as follows:-

“(xvii) Ergo, Section 377 IPC, so far as it
penalizes any consensual sexual relationship
between two adults, be it homosexuals (man and
a woman) or lesbians (woman and a woman),
cannot be regarded as constitutional. However, if
anyone, by which we mean both a man and a
woman, engages in any kind of sexual activity with
an animal, the said aspect of Section 377 is
3

HIGH COURT OF MADHYA PRADESH
Cr.A.7199/2018
(Amit Agrawal Vs. State of M.P. Anr.)

constitutional and it shall remain a penal offence
under Section 377 IPC. Any act of the description
covered under Section 377 IPC done between two
individual without the consent of any one of them
would invite penal liability under Section 377 IPC.”

It is also argued by the Public Prosecutor that if the
complainant/present respondent No.2 would have been a
consenting party to oral sex committed by the present
appellant with him, then he would not have lodged FIR on
30.08.2018 at 14-30 hours, wherein it is clearly mentioned
that appellant firstly made proposal for unnatural sex and
thereafter giving him caste basis abuses threatened him by
showing a knife and thereafter took him towards a garden
and inserted his male organ into the mouth of respondent
No.2 and thereafter appellant threatened him for killing on
disclosing the incident to anyone. It is also argued that the
filed affidavit of respondent No.2 in favolur of the appellant is
also indicative of the fact that complainant and other
witnesses are being influenced by the present appellant. It is
also argued that under the provisions of Section 18 and 18-A
of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, anticipatory bail application in relation to
offence punishable under the provisions of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act is not
maintainable and the learned Special Judge did not err in
dismissing the appellant’s anticipatory bail application,
therefore, dismissal of the appeal is prayed.

Appearing counsel for the respondent No.2 submits
4

HIGH COURT OF MADHYA PRADESH
Cr.A.7199/2018
(Amit Agrawal Vs. State of M.P. Anr.)

that his client is having no objection in granting anticipatory
bail to the appellant.

It is clear in the light of recent judgment passed by the
Apex Court that only consensual sexual relationship between
two adults has been held unconstitutional, but such relations
between two individuals without the consent of any one of
them would still invite penal liability under Section 377 of the
IPC. It is also clear from the affidavit filed by the respondent
No.2/complainant that prosecution witnesses are being tried
to be influenced. The subsequently obtained consent of the
victim/complainant cannot override legal provisions. In view
of total facts and circumstances of the case and special legal
provision of relating Act, it appears that the Special Court had
not committed any error in dismissing the present appellant’s
anticipatory bail application and appellant’s appeal appears to
be devoid of any substance.

Consequently, the appeal filed by the appellant under
Section 14-A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act against impugned order dated
6.9.2018 passed by the Special Judge, Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, Gwalior is
dismissed and the above mentioned order is affirmed.

Case diary be returned.

(Ashok Kumar Joshi)
Judge

vv

VALSALA VASUDEVAN
2018.10.04 17:46:34

-07’00’

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