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Praveen Alias Sheru Jain vs The State Of Madhya Pradesh on 29 August, 2018

THE HIGH COURT OF MADHYA PRADESH
1 M.Cr.C. No.30210/2018
(Praveen alias Sheru Jain Vs. State of M.P.)

Gwalior, Dated : 29/08/2018
Shri R.K. Sharma, Senior Advocate with Shri M.K.
Choudhary, Counsel for the applicant.
Shri S.S. Dhakad, Counsel for the State.
Shri R.K. Shrivastava, Counsel for the complainant.
This application under Section 438 of Cr.P.C. has been
filed for grant of anticipatory bail, as the applicant apprehends
his arrest in connection with crime No. 60/2017 registered by
police station Karhaiya, Distt. Gwalior for offence under
Sections 366,376 and 506 of I.P.C.
According to the prosecution case, on 26-7-2017, the
prosecutrix was going to fill up the form of B.A. to Chinaur from
her village Mehgaon. On the way, She met with the applicant
and co-accused Annu who offered lift. As these persons were
known to the prosecutrix, therefore, She sat on the motor cycle
which was being driven by the co-accused Annu. When they
reached Chinaur, then they didnot stop the motor cycle and
also threatned the prosecutrix that in case, if she raises hue
and cry, then her father would be killed. When they reached
Amrol, one four wheeler was already there and co-accused Ajju
and Sanat were already there. They gagged the mouth of the
prosecutrix and tied her and put her in the four wheeler, and
brought her to Shivpuri. There the applicant, Sanat and Ajju
gave money to Annu and instructed that the prosecutrix and
Annu must board the bus, and also extended the threat, that in
case, if any hue and cry is raised by the prosecutrix, then her
father would be killed. The co-accused Annu took her to
Indore and locked the prosecutrix in a room. On the next day,
the applicant and co-accused Sanat and Ajju also came there
THE HIGH COURT OF MADHYA PRADESH
2 M.Cr.C. No.30210/2018
(Praveen alias Sheru Jain Vs. State of M.P.)

and all the four persons committed rape on her. She was
subjected to rape by all the four persons, till 10-8-2017. Some
how, She got the mobile phone of one of the accused persons,
and accordingly, She informed her brother about her location.
On 9-8-2017, She requested the co-accused Annu to take her
to Zoo. When they reached Zoo, her brother was already
waiting for her and after noticing her brother, the co-accused
Annu also ran away from the spot. Thus a specific allegation
was made by the prosecutrix, that She was subjected to gang
rape by all the four accused persons, including the applicant.
It appears, that the co-accused Ankit along with the
prosecutrix, filed a writ petition before this Court seeking
protection of the police authorities, on the ground that the
prosecutrix and the co-accused Ankit have married each other,
and the said writ petition was registered as W.P. No. 5077 of
2017. Relying on the pleadings, the co-ordinate Bench of this
Court by order dated 9-8-2017, passed the following order :
“Taking into account the submissions
made by learned Counsel for the parties and
as agreed to by them, the writ petition is
disposed of with the direction that if
protection is sought by the petitioners
against any harassment or intimidation
against their life, liberty and dignity arising
out of the marriage solemnized by them, the
same would be granted to them by the
respondents on verifying the factum of

marriage and age in accordance with law
and in terms of the decision of the Apex
Court.”

It appears that the co-accused Ankit Jain, was arrested
and he filed an application under Section 439 of Cr.P.C. for
grant of bail which was registered as M.Cr.C. No. 25818/2017.

THE HIGH COURT OF MADHYA PRADESH
3 M.Cr.C. No.30210/2018
(Praveen alias Sheru Jain Vs. State of M.P.)

The above mentioned order passed in W.P. No. 5077/2017,
was also relied upon, however, considering the statements of
the prosecutrix which were recorded under Section 161 and
164 of Cr.P.C., this Court rejected the bail application of co-
accused Ankit.

Thereafter, the present application under Section 438 of
Cr.P.C. has been filed on behalf of the applicant for grant of
anticipatory bail. As already pointed out, there is also an
allegation of rape against the applicant. The applicant has also
relied upon the order passed in W.P. No. 5077/2017.

This Court by order dated 20-8-2018, called the record of
W.P. No. 5077/2017 and after perusing the said record, called
the register of Oath Commissioner, Ms. Kusum Sharma for
giving details of the entries made by her on 3-8-2017.

Today, Ms. Kusum Sharma, Oath Commissioner is
present in person along with her register. The details of the
prosecutrix and the signatures are at serial no. 6095.

The Counsel for the complainant, by referring to the
statement of the prosecutrix, which was recorded under
Section 164 of Cr.P.C. submitted that her signatures were
obtained on papers at Indore, while She was under
confinement. It is also submitted by the Counsel for the
complainant, that She had never filed W.P. No. 5077/2017, and
the co-accused Ankit Jain, in connivance with the applicant and
other accused persons, had obtained the order in W.P. No.
5077/2017, by playing fraud on the Court and the complainant
had never come to Gwalior for swearing the affidavit. It is
further submitted that since, the prosecutrix was subjected to
gang rape till 10-8-2017 at Indore and was in confinement at
THE HIGH COURT OF MADHYA PRADESH
4 M.Cr.C. No.30210/2018
(Praveen alias Sheru Jain Vs. State of M.P.)

Indore, till 10-8-2017, therefore, there was no question of
coming to Gwalior on 3-8-2017 and sending a representation
to the Police Authorities, swearing the affidavit on 3-8-2017.
The W.P. No. 5077/2017 was allowed on 9-8-2017, but till then
She was being subjected to gang rape.

Considering the submissions made by the Counsel for
the complainant, this Court has perused the register of Ms.
Kusum Sharma, Oath Commissioner, as well as the affidavit
sworn by the complainant. There are basic differences in the
signatures of the complainant. The signature of the
complainant on the affidavit are much different from that of the
signature of the complainant which are available in the register
of the Oath Commissioner, Ms. Kusum Sharma.

It is submitted by Ms. Kusum Sharma, Oath
Commissioner, that She had no option but to rely upon the
identification done by the Counsel for the Petitioner, however,
could not reply that whether the complainant was present at
the time of swearing of the affidavit or not and also could not
explain as to why there is a vast difference in the signatures of
the complainant on the affidavit and her register.

So far as the allegations made by the Counsel for the
prosecutrix, with regard to non-filing of the W.P. No. 5077/2017
are concerned, there appears to be some substance, however,
the objection raised by the prosecutrix cannot be decided
without conducting a detailed investigation. However, the
matter is already sub-judice before the Trial Court, therefore,
this Court is of the considered opinion, that it would not be
proper for this Court to go into the details of the allegations
made by the complainant with regard to the non-filing of W.P.

THE HIGH COURT OF MADHYA PRADESH
5 M.Cr.C. No.30210/2018
(Praveen alias Sheru Jain Vs. State of M.P.)

No. 5077/2017, because ultimately, any enquiry done by this
Court, may have some effect on the Trial.

At this stage, it is submitted by the Counsel for the
applicant that he may be permitted to withdraw this bail
application and also gave an undertaking that in future, the
order dated 9-8-2017 passed in W.P. No. 5077/2017, shall not
be relied upon by any of the accused.

As the applicant has already expressed his willingness to
withdraw this application, therefore, the application filed by the
applicant under Section 438 of Cr.P.C. is Dismissed as
withdrawn.

(G.S. Ahluwalia)
Judge
Arun*
Digitally signed by ARUN KUMAR MISHRA
DN: cIN, oHIGH COURT OF M.P. BENCH GWALIOR, ouP.S.,

ARUN KUMAR MISHRA postalCode474011, stMadhya Pradesh,
2.5.4.2051f931b13b82ad5df5aefb2200fa24abe6935164546dbcd5c17c
43c78b5ee233, cnARUN KUMAR MISHRA
Date: 2018.08.30 18:22:31 +05’30’

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