The central legal point established in the judgment is the importance of DNA verification in rape cases, especially those involving minors, as highlighted in the provisions of section 53-A of the Criminal Procedure Code and the judgments of the Hon’ble Supreme Court.

ORDER : – Shri Praveen Dhurve, Inspector, Police Station Adegaon, District Seoni is present in person.

2. In compliance of order dated 25-11-2022 an explanation was filed on 3-12-2022, the same is taken on record.

3. This is the second bail application filed by the applicant under section 439 of the Criminal Procedure Code for grant of bail. The first application was dismissed on merit vide order dated 11-2-2022 passed in M. Cr. C. No. 7020 of 2022.

4. The applicant has been arrested on 23-11-2021 by Police Station-Adegaon, District Seoni (M. P.) in connection with Crime No. 363/2021 for the offence punishable under sections 376, 376(2)(n), 363 and 506 of Indian Penal Code and sections 7 and 8 of the POCSO Act.

5. It is pointed out that this application has been filed on the ground that the statements of prosecutrix as well as her mother have been recorded before the trial Court and they have turned hostile. The FSL report is negative. It is further submitted that the applicant is the first offender and is in custody since 23-11-2021. There is no further requirement of custodial interrogation of the present applicant. He is ready to abide by all terms and conditions that may be imposed by this Court while considering this bail application. On these grounds, he prays for grant of bail.

6. Per contra, learned counsel appearing for the State has vehemently opposed the contentions and submitted that the victim was minor at the time of commission of offence. It is submitted that the DNA profile was not sent by the Police Authorities for examination owing to the fact that the FSL was found to be negative. He has placed reliance upon the judgments of the Hon’ble Supreme Court in the case of Veerendra vs. State of M. P., (2022) 8 SCC 668 and in the case of Chotkau vs. State of U. P., 2022 SCC OnLine 1313 and the order passed by the Coordinate Bench of this Court on 4-5-2016 in M. Cr. C. No. 6476 of 2016, Raja Burman @ Rahu vs. State of Madhya Pradesh wherein the Police was directed that if the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing, which upon test by the FSL confirms the presence of human sperm then such slides must be sent for DNA verification with the blood sample of the suspect. He further submits that the authorities are not sending the samples for DNA once the FSL is found to be negative considering the judgment passed by the Coordinate Bench of this Court in M. Cr. C. No. 6476 of 2016, Raja Burman @ Rahu vs. State of Madhya Pradesh However, he could not dispute the fact that the applicant is the first offender as per the case diary record.

7. Considering the over all facts and circumstances of the case and keeping view the custody period of the applicant, coupled with the fact that the prosecutrix and her mother have turned hostile, the FSL report was found to be negative and no sample was sent to DNA, without expressing any opinion on the merits of the case, this Court deems it appropriate to allow this application. Accordingly, subject to the verification of the fact that the applicant is the first offender, this application is allowed. The applicant is directed to be released on bail and on furnishing surety bond of Rs. 50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of trial Court. It is also directed that the applicant shall comply with the conditions as enumerated under section 437(3), Criminal Procedure Code.

8. In view of the outbreak of ‘Corona Virus disease (COVID-19)’ the concerned jail authorities are directed to follow the directions/guidelines issued by the Government with regard to ‘COVID-19’ before releasing the applicant.

9. This order shall remain effective till the end of the trial but in case of bail jump and breach of any of the pre-condition of bail, it shall become ineffective and cancelled without reference to this Bench.

10. Application stands allowed.

As far as not sending the sample for DNA verification part