While considering the categorical statement made by a 11-year-old rape victim, the Indore Bench of Madhya Pradesh High Court in a refreshing, recent, robust, remarkable and rational judgment titled Ashok vs The State Of Madhya Pradesh And Anr. in Misc. Criminal Case No. 18844 of 2022 pronounced as recently as on May 4, 2022 has rejected the bail application of the accused stating that at the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted. It merits no reiteration that all the courts must pay heed to what the Indore Bench of the Madhya Pradesh High Court has held in this leading case. There can be just no denying or disputing it.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of the Indore Bench of the Madhya Pradesh High Court sets the ball rolling by first and foremost pointing out in the opening para that, “This is the third bail application under Section 439 of the Code of Criminal Procedure, 1973 filed on behalf of the applicant for grant of bail. His first bail application i.e. M.Cr.C.No.2103/2021 was disposed of on 27/04/2021 and second bail application i.e. M.Cr.C. No.50669/2021 was dismissed as withdrawn on 09/12/2021. The applicant is in custody since 22/06/2018 in connection with Crime No.451/2017 registered at Police Station – Rau, District Indore (M.P.) for commission of offence punishable under Section 363, 366, 376(2)(i), 376(2)(n) and 506-II of the Indian Penal Code, 1860 read with Section 5(m)/6 and 5(l/6) of the Protection of Children from Sexual Offences Act, 2012.”
On the one hand, the Bench points out in the next para that, “As per prosecution story, the prosecutrix was minor and was 11 years of age at the time of incident. She knows the present applicant before the incident. The present applicant abducted the minor prosecutrix and kept her at his sister's village and committed rape upon her and threatened her to kill if she disclosed anyone about the incident. The sister of the prosecutrix lodged a missing person report in respect of the prosecutrix. Accordingly, crime has been registered against the present applicant.”On the other hand, the Bench then points out in the very next para of this notable judgment that, “Learned counsel for the applicant submits that the applicant is innocent person and he has been falsely implicated in this offence. He is in custody since 22/06/2018. Investigation is over and charge sheet has been filed. Nine witnesses including the prosecutrix have been examined by the prosecution. Medical evidence is not supporting the prosecution version. Final conclusion of the trial is likely to take sufficient long time. The applicant is permanent resident of Indore district. Under the above circumstances, prayer for grant of bail may be considered on such terms and conditions, as this Court deems fit and proper.”
As we see, the Bench then also unfolds in the next para that, “Per contra, learned counsel for the respondent / State opposes the bail application and prays for its rejection by submitting that the prosecutrix was only 11 years of the age at the time of incident and she categorically stated in her statement against the present applicant. Hence, he is not entitled to be enlarged on bail.”
Needless to say, the Bench then states in the next para that, “Counsel for the objector also opposes the bail application and prays for its rejection.”
As an aside, the Bench deems it fit to mention in the next para that, “I have perused the impugned order of the trial Court as well as the case diary.”
To put things in perspective, the Bench then postulates in the next para of this learned judgment that, “Considering all the facts and circumstances of the case, nature and gravity of offence, arguments advanced by the learned counsel for the applicant and also taking note of the fact that as per the scholar register prosecutrix's date of birth is 08/03/2006, therefore, she was below 12 years at the time of incident. Prosecutrix has been examined before the trial Court and she has categorically stated in her statement that present applicant abducted and committed rape upon her several times.”
Most significantly and also most remarkably, the Bench then minces no words to hold while citing the relevant case law in this regard to hold unequivocally in this new para of this brilliant judgment that, “At the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted as per the judgment of Hon’ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007, wherein it has been held as under:-“At the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.””
Most forthrightly, the Bench then hastens to add in the next para of this noteworthy judgment that, “As per the law laid down by the Hon'ble Supreme Court in Satish Jaggi (supra), this Court can only go into the question of the prima facie case established for granting bail. At the stage of consideration of bail, this Court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. In the statement recorded before the trial Court, the prosecutrix has categorically stated against the present applicant about the aforesaid crime.”
Quite ostensibly and as a corollary, the Bench then deems it fit to hold in the next para of this brief judgment that, “In view of the evidence available on record, as above, without commenting upon the merits of the case, at this stage, this Court is not inclined to enlarged the applicant on bail.”
Of course, the Bench then directs in the next para of this extremely commendable judgment that, “Accordingly, the third bail application filed by applicant under Section 439 of Cr.P.C. is dismissed.”
Finally, the Bench then concludes by holding in the final para of this learned judgment that, “Certified copy as per rules.”
To put it shortly, the single Judge Bench of the Indore Bench of the Madhya Pradesh High Court comprising of Justice Anil Verma has made it indisputably clear that marshalling of prosecution witnesses is not permitted at stage of bail. This is the real crux of this learned judgment. It is the lower courts which must always take this learned judgment into account in all similar such cases and act accordingly. No denying it!Sanjeev Sirohi
