Madhya Pradesh High Court: G.S. Ahluwalia, J., rejected the bail application of the applicant finding no merit in the application in connection with the FIR registered for offences punishable under Sections 363, 366, 376 of the Penal Code, 1860 and Sections 3/4 of the POCSO Act.
The applicant has filed six applications prior to the present one. The applicant had been arrested on 13-06-2018 for crimes committed under the aforementioned sections of IPC and POCSO. The previous application has already been dismissed by order dated 25-09-2018 passed in MCRC No. 29669/2018.
The counsel for the applicant, Nirmal Sharma has contended that there are major discrepancies in the testimony of the material witnesses.
Heeding to this particular argument, the Court relied on the case titled Satish Jaggi v. State of Chhattisgarh,(2007) 11 SCC 195 and observed that at this stage of bail, it would not be fit to look into the credibility and reliability of the witnesses. The relevant para from the judgment has been quoted below-
‘’12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the 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.
13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amounts to the regular trial pointing out the deficiency and reliability/credibility of prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.”
Another argument advanced by the counsel for the applicant is that there is confusion with respect to the age of the victim as she stated her age as twenty-two while getting married in 2018.
The Court refuted this argument too on the basis of the case of Jarnail Singh v. State of Punjab, (2013) 7 SCC 263 and held that the victim was a minor on the date of the incident in accordance with her school record. It’s the trial court’s case to assess the age of the victim considering whether she has disclosed herself to be a major or not.
On the contention of delayed trial regarding the duration of the applicant’s custody, the Court remarked that no order sheets have been filed by the applicant to indicate that he himself is not responsible for the delay. The contention that no order sheets have been placed on record has already been rejected by this Court earlier.
In view of the above, the present application has been rejected by the Court. [Mukesh v. State of M.P., 2020 SCC OnLine MP 1794, decided on 21-08-2020]
