The court's interpretation of Section 439 of the Criminal Procedure Code, 1973, in granting bail to the accused despite serious allegations of rape and threats.

JUDGMENT

Pranay Verma, J. - They are heard. Perused the case diary /challan papers.

2. This is a First application under Section 439 of Criminal Procedure Code, 1973, as the applicant is implicated in connection with Crime No.358/2022 registered at Police Station Nemawar, District Dewas (MP) for offence punishable under Sections 376(2)(n), 506, 201 of the IPC.

3. The applicant is in custody since 03.11.2022.

4. As per the prosecution, the prosecutrix had known the applicant since he was a friend of her dever. About three years ago she had come in contact with the applicant, who had told her that if there is any work she can ask him for the same. He had taken her mobile number and used to message her and had told her that he likes her. When he found out that there is no one at home of the prosecutrix he came and committed rape upon her and also took her photographs without her knowledge. Thereafter he threatened her of circulating her photographs and committed rape upon her for a period of about three years. On 28.08.2022 in the evening the applicant hackd whatsapp number of the prosecutrix and uploaded certain nude photographs of her by way of her status which was seen by family members of her husband and by her husband, on the basis of which he filed an application for divorce on 01.11.2022. On making of the report by the prosecutrix, the applicant has been implicated and arrested for the present offence.

5. Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the case. The applicant is a major lady and is married and it is a case of consent between the parties. Though the applicant is stated to have committed rape upon the prosecutrix for a period of three years but she did not narrate about the incident to anyone for all that period. Explanation given by her for not doing so is not believable as nothing has been recovered from her mobile phone or that of the applicant. There is no evidence against the applicant. Investigation has been completed and chargesheet has been filed and the applicant is in custody since 03.11.2022 and his further custodial interrogation is no longer required. On such grounds prayer for grant of bail to the applicant has been made.

6. The aforesaid prayer has been opposed by learned counsel for the respondent/State submitting that in view of the allegations levelled against applicant, he is not entitled to be released on bail.

7. I have heard learned counsel for the parties and have perused the case diary.

8. The applicant is alleged to have committed rape upon the prosecutrix for a period of three years. It does not appear that any complaint was made by the prosecutrix during that entire period and the explanation given by her for the same does not appear to be supported from the material on record as neither her phone nor that of the applicant have been seized and no incriminating photographs of the prosecutrix have been recovered. The investigation has been completed and chargesheet has been filed and further custodial interrogation of the applicant is no longer required. Thus, in my opinion, the applicant deserves to be enlarged on bail.

9. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed. The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court during trial with a condition that he shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.

10. This order shall be effective till the end of the trial, however, in case of bail jump, it shall become ineffective.

Certified copy as per rules.