The main legal point established in the judgment is that the application for anticipatory bail is maintainable even after the preparation of Farari Panchnamas and the declaration of an award for the applicant's arrest, emphasizing the importance of personal liberty and the discretion of the court in granting bail.

JUDGMENT

Anand Pathak, J. - This is first bail application preferred by the applicant under Section 438 of Cr.P.C. wherein he is apprehending his arrest in a case registered vide Crime No.448/2019 at Police Station Vishwavidyalaya, District Gwalior for alleged offence punishable under Sections 376, 386, 506 of IPC.

2. It is submitted by learned counsel appearing for the applicant that police has registered a false case against him. As per FIR, date of incident appears to be 27-10-2019 whereas FIR lodged on 15-12-2019, apparently delayed in nature. Applicant and prosecutrix entered into wedlock through Hindu rites and rituals and copy of marriage certificate and photographs in this regard are attached with the application.

3. As per allegations on the pretext of marriage, alleged rape has been committed by applicant. Some amount has been transferred in favour of the prosecutrix by the applicant which reveals that both were in relationship. Even otherwise, on the pretext of marriage if physical intimacy developed then the same does not constitute offence of rape. In support of his submission, he relied upon the judgments of Apex Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and others, (2019) AIR SC 4010 and Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others, (2019) AIR SC 327 .

4. It is further submitted that after registration of offence both tried to settle the matter and therefore, petition has been preferred under Section 482 of Cr.P.C. for compromise bearing M.Cr.C.No. 930/2020 which was dismissed as withdrawn on 28- 01-2020 because the allegations were of Section 376 of IPC also (in light of various judgments of Apex Court), therefore, compromise could not be given effect to. This itself indicates that domestic nature of relationship and incompatibility into it has been tried to be converted into offence of rape. Applicant is aged 41 years of age and prosecutrix is around 41-42 years of age. Therefore, at such matured stage, if two adults enter into wedlock and thereafter their domestic relationship is severed for any reason then the same does not amount to commission of offence of rape. He is reputed citizen of locality and chance of absconsion is remote. Confinement would bring social disrepute and personal inconvenience. He undertakes to cooperate in investigation and would make himself available as and when required by the investigating officer and also undertakes that he would not be source of harassment and embarrassment to the complainant party in any manner. Consequently, he prayed for bail of anticipatory nature.

5. Learned counsel for the applicant further responded to the queries raised by this Court about maintainability of the application for anticipatory bail under Section 438 of Cr.P.C. in view of the legal position that when any person has been declared as absconder and award of Rs.5,000/- has been declared by the Superintendent of Police as per Police Regulation 789 (as per case diary of instant case) then his prospects to get anticipatory bail gets extinguished, learned counsel for the applicant submits that it is not correct application of law because here in the present case the applicant has not been declared absconder so far as per Sections 82 and 83 of Cr.P.C. Therefore, legal bar created by the judgments of Apex Court in the matter of Lavesh Vs. State (NCT Of Delhi), (2012) 8 SCC 73 as well as in the matter of State of M.P. Vs. Pradeep Sharma, (2014) 2 SCC 171 is not applicable in the present set of facts.

6. It is submitted by learned counsel for the applicant that police is at liberty to declare award over any person for apprehension who is not available for investigation but this may be their device to deny the applicant (or other similarly situated persons) a chance to get anticipatory bail.

7. On the other hand, learned PP for the respondent/State opposed the prayer and on the basis of case diary submits that the applicant is required for investigation. Rs.