Marshalling Of Prosecution Witnesses Not Permitted At Stage Of Bail: Madhya Pradesh High Court

Justice Anil Verma observed:

"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."

In that case, the Supreme Court had said that 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, and the same can only be tested at the time of trial.

The Court was dealing with a third bail application under Section 439 CrPC filed on behalf of the applicant for grant of bail. The applicant is in custody since 22/06/2018 in connection with Crime registered for alleged commission of offences 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.

The case of the prosecutrix is that she was a minor and was 11 years of age at the time of incident. She knew the applicant before the incident. The applicant abducted her and kept her at his sister's village and committed rape upon her and threatened her to kill if she disclosed to anyone about the incident. The sister of the prosecutrix lodged a missing person report in respect of the prosecutrix. Accordingly, crime was registered against the present applicant.

Applicant argued before court that he is innocent person and has been falsely implicated in this offence. He said that Investigation is over and charge sheet has been filed. Nine witnesses including the prosecutrix have been examined by the prosecution.

Further he said that Medical evidence is not supporting the prosecution version and final conclusion of the trial is likely to take sufficient long time. He said under the aforesaid circumstances prayer for grant of bail may be considered on such terms and conditions, as this Court deems fit and proper.

The Counsel for state opposes the bail application and prayed 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.

After perusing the records the court noted that the girl 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." Court said.

In view of the above, and the decision of the Supreme Court in Satish Jaggi (supra) court decided that a case for bail is not made out.

Case Title: ASHOK v. THE STATE OF MADHYA PRADESH AND ANR.

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